I asked Dan Weiner of the Brennan Center to write a bit about the interesting position they’ve taken in the NRSC campaign finance case. Here is his guest post:
On Monday the Brennan Center for Justice at NYU Law filed an amicus brief in National Republican Senatorial Committee v. FEC, a First Amendment challenge before the Supreme Court over longstanding federal limits on coordinated spending between national party committees and candidates. The Brennan Center worked with Steptoe LLP on the brief. Many thanks to Rick for letting us summarize our views here.
The brief argues that the Court should uphold these limits, while leaving questions about whether they constitute good policy to Congress.
We have previously argued that Congress should consider eliminating these same limits as part of a reform package to strengthen political parties. Our view hasn’t changed. Parties, for all their faults, are essential to American democracy, and we should expect them to work closely with their own candidates. Parties can also be a significant vector for corruption, as the Court found when it upheld the coordinated spending limits several decades ago (then with the benefit of a substantial factual record, a practice the justices have since abandoned in campaign finance cases).
Given these competing factors, the best approach would be to put reasonable limits on contributions to both candidates and political parties and then let them coordinate as much as they want. But that isn’t the system we have. Instead, current law allows parties to raise more than 400 times the amount that individual candidates can raise per election cycle. Coordinated spending limits are an established way to prevent party donations from being used to circumvent the individual limits. That should be the end of the Court’s involvement.
What Congress should do is more complicated. We are skeptical that repealing the coordinated spending limits without other changes will have major benefits for American democracy, but reasonable people can disagree.
The real question is who should decide. At the heart of our brief is an accounting of how the Court’s interventions in campaign finance law over the last two decades have had unintended consequences that run directly counter to the justices’ own express assurances — including creating new avenues for corruption, undermining campaign transparency, letting more foreign money into elections, and fueling public cynicism with politics. Congress, in representing the American people (who overwhelmingly want more, not less, campaign finance safeguards), is the body best placed to anticipate and weigh such risks against the benefits of undoing longstanding rules. They, and not the Court, should decide the future of coordinated spending limits.
I’m very excited to be working on this major project, bringing together my many strands of research on democracy and election law. Here’s the Publisher’s Marketplace announcement (the book itself won’t be published until early 2028):
As Texas, Missouri, and (likely) California plunge the country back into the latest round of redistricting wars, the overwhelming majority of coverage and commentary has focused on the collective consequences of re-gerrymandering: how will these maneuvers affect majority control of the House of Representatives come 2027, and how do they affect the relationship between the partisan makeup of the states in question and the partisan composition of their respective delegations to Congress?
In a deeply polarized country with highly nationalized politics, the focus on collective consequences is understandable. And yet lost in the discussion is the impact of these maneuvers on the “dyadic” relationship between individual voters and their representatives. A dyadic perspective considers questions such as whether legislators share the values of their own constituents, whether they are competent, and whether they work hard for their communities. Not only are these the criteria by which many citizens judge their democracy; dyadic conceptions of representation also resonate with the geographic organization of Congress and the Constitution’s emphasis on individual, rather than collective, rights and harms.
To capture the intuition, consider an imaginary state composed of nine voters—five Republicans and four Democrats—evenly divided among three districts. Three maps are proposed: A, B, and C. In Map A, Republicans have a 2–1 majority in Districts 1 and 2 and Democrats have a 1–2 majority in District 3. In Map B, Republicans have a 3–0 majority in District 1 and a 2–1 majority in District 2, while Democrats enjoy a 0–3 majority in District 3. In Map C, Republicans have a 3–0 majority in District 1, and Democrats a 1–2 majority in Districts 2 and 3.
Focus for the moment on a comparison between Maps A and B. Which is more fair? If all that matters is how closely the partisan breakdown of the elected assembly matches that of the electorate, there’s no meaningful difference between the two partitions: Both may be expected to generate a delegation consisting of one Democratic and two Republican legislators. And with nine voters and three legislators, this is as close as you can get to proportionality—one possible criterion for collective fairness.
From a dyadic perspective, however, the maps are not the same—but why they differ depends on what voters ultimately care about. In Map A, six out of nine voters have a representative from their own party, while in Map B, eight out of nine do. So, if voters only care about having a representative who shares their values, Map B is a clear winner. But suppose voters are apprehensive of lopsided majorities—perhaps because these encourage shirking by incumbent legislators. In that case, Map A might be preferable.
Now look at Map C: no matter what collective or dyadic criterion you employ, this third map is unfair.
Our paper generalizes the intuition from these examples by presenting a stylized formal model that grounds the welfare of voters in terms of (a) the correspondence between their values and those of their legislator (as captured by co-partisanship); (b) legislator competence; and (c) legislator incentives to work hard on behalf of their constituents.
The model yields measures of “representational disparity” that capture how fairly different groups of voters (e.g., Republicans and Democrats) are treated under a given map. As with collective metrics such as the efficiency gap and partisan bias, the measure can be tested across ensembles of millions of alternative maps, revealing whether an enacted plan is a true outlier or simply reflects the geographic distribution of a state’s voters.
Critically, these measures can be “tuned” to reflect features of the underlying political environment and the user’s commitment to different, potentially contradictory values. For example, if matching legislator and constituent partisanship is the overriding concern, then a map that makes districts maximally non-competitive might come closest to achieving that objective. But if motivating legislators to work hard on behalf of a broad range of constituents matters, then the measure will reward more competitive plans.
What the Evidence Shows
Relationship to existing measures. While our approach forges new conceptual ground, our measures will generally be correlated, though imperfectly so, with existing measures like partisan bias, efficiency gap, and declination. But situations may arise where our dyadic commitments lead to different substantive conclusions than collective ones would.
Examples from the paper. Using examples from a handful of states, our article shows that traditional metrics often miss the mark. For instance, in Massachusetts, Republicans rarely win congressional seats—not necessarily because of gerrymandering, but because their voters are too evenly spread out. Dyadic analysis reveals more nuanced harms: while all maps disadvantage Republicans collectively, some alternatives give them better representation at the district level. By contrast, in Florida and Pennsylvania, enacted maps emerge as extreme outliers under both collective and dyadic metrics, making the case for unfairness much clearer.
Analyzing the 2025 Texas and California Maps. Using the approach described in our article, we conducted an outlier analysis to assess the extremity of the enacted Texas and proposed California maps on dyadic representational grounds under two different “tunings” of representational disparity. Here’s a comparison of the 2021 and 2025 Texas maps with an ALARM ensemble of simulated maps. (In all graphs, the solid vertical line indicates zero disparity.)
As the figures indicate, the 2021 Texas map was already an extreme outlier irrespective of how the measure is tuned. The new map is even more extreme.
Here’s our analysis of California:
Our analysis suggests that according to the first version of the measure, which prioritizes matching constituent and legislator partisanship, the 2021 California map is not an outlier, but the 2025 proposed map would be. According to the second version, which rewards competitiveness, both maps are extreme outliers, but the 2025 plan would be worse.
Why This Matters
It is certainly not clear (to us) that single-member districts are the most effective way to select our representatives. Yet it is the system we have, and a system of representation inescapably rooted in geographic districts must be evaluated using diagnostics that treat districts and their boundaries not merely as an inconvenience but as an intrinsic feature. Gerrymandering isn’t just about partisan balance sheets—it’s also about whether citizens can trust that their voices are heard in the halls of power.
President Trump suggested on Thursday that the Republican Party should host an unusual national convention ahead of the 2026 midterm elections.
“I am thinking of recommending a National Convention to the Republican Party, just prior to the Midterms. It has never been done before,” Mr. Trump wrote on his social media site, Truth Social. “STAY TUNED!!!”
Normally, both the Democratic and Republican parties hold their conventions every four years to formally nominate their presidential candidates. But Mr. Trump’s political operation is hoping to find ways to motivate the voters who have previously come out to cast ballots only when his name is on the ballot next year, when control of both the House and Senate will be determined for the second half of his second term.
A day earlier, Axios reported that Ken Martin, the chairman of the Democratic National Committee, had been discussing a possible Democratic convention in 2026. The idea was the subject of some conversation on the sidelines of the D.N.C. meeting this week in Minneapolis, though it was not universally embraced, partly because it would most likely be costly for a party that is already stretched for cash.
The potential for a Democratic midterms convention was also covered on Wednesday evening by Sean Hannity on his show on Fox News, which is one of Mr. Trump’s favorite programs.
“Several options are on the table for next year, including hosting a large-scale gathering before the midterms,” said Abhi Rahman, a spokesman for the D.N.C., calling it a chance to “showcase our tremendous candidates running up and down the ballot.”
Democrats have scored a number of victories in low-turnout special elections this year. But they are working to impress upon their voters the importance of the midterms next year to give the party a check on Mr. Trump, who has moved aggressively to enact his agenda in Washington.
If the dueling conventions happen — which remains very much an if for both parties — the events would serve not just as a venue to campaign for the midterms but also a major platform for ambitious politicians hoping to lead both parties in 2028….
Three established Rutgers professors, one of them a former state attorney general, have written a joint op-ed in the New Jersey Monitor urging the state Supreme Court to take up In Re Malinowski and rule in favor of reviving the state’s tradition of fusion voting.
As Rayman Solomon, former dean of the Rutgers Law School-Camden; Robert Williams, state constitutional law expert and distinguished professor of law emeritus at the Rutgers University School of Law; and John Farmer, Jr., who previously served as dean of Rutgers Law School-Newark and attorney general of New Jersey, write, “At a time when democracy is being eroded throughout our country, the court has the opportunity to reaffirm the New Jersey Constitution’s strong commitment to freedom of association and voter choice — both bedrocks of democracy.”
The three scholars take apart the Appellate Division’s ruling, which had rejected Malinowski’s petition, along with the Supreme Court’s Timmons decision in 1998. They write:
“Without any evidence whatsoever from the New Jersey secretary of state, and contrary to the vast evidence from actual experience that the Malinowski plaintiffs supplied in their several-hundred-page record, the appellate court accepted the secretary of state’s claims that adopting ballot-line fusion would generate pervasive voter confusion, inspire fraud, and otherwise undermine ‘public confidence’ in the present system.”
With respect to Timmons, they write:
“What is most striking today, in rereading the Timmons 6-3 decision — authored by then-Chief Justice Rehnquist, with a blistering dissent from Justice Stevens — was the majority’s confidence in how well our two-party system serves the country. Today, 80% of voters say they want more than just two choices, but they must be meaningful choices. The hyper-partisan polarization of the two-party duopoly has led us to the effective collapse of any legislative or judicial check on the threats to democracy brought about by an unprecedented and seemingly limitless expansion of executive power.”
“Throughout our history, ballot-line fusion has been a modest but potent tool for injecting new ideas and new leaders into our politics. It pushes back against the hyperpartisan politics that define our era as it incentivizes major parties to form coalitions with minor ones. We can’t know if the New Jersey Moderate Party will end up building a voting base big enough to force the major parties to bargain, but they should surely have the right to try.”
New Jersey’s Constitution places strong emphasis on the importance of freedom of association and free expression by voters, parties, and candidates. So there’s ample grounds for the state Supreme Court to take up the case. Stay tuned.
The Democratic Party is hemorrhaging voters long before they even go to the polls.
Of the 30 states that track voter registration by political party, Democrats lost ground to Republicans in every single one between the 2020 and 2024 elections — and often by a lot.
That four-year swing toward the Republicans adds up to 4.5 million voters, a deep political hole that could take years for Democrats to climb out from….
Gov. Abbott called a second special session Friday morning, calling the legislature into action for a second shot at redistricting maps (and, at least in theory, other issues).
The call for the first special session asked the legislature to consider “[l]egislation that provides a revised congressional redistricting plan in light of constitutional concerns raised by the U.S. Department of Justice.”
The call for the second special session just asks the legislature to consider “[l]egislation that provides a congressional redistricting plan.”
Guess they finally realized the DOJ’s pretext didn’t pass the laugh test.
Justin here. Today, California Gov. Newsom announced what he’d been foreshadowing for a while now — an effort to seek voters’ approval for new congressional district lines in a Nov. 4 special election. (Rick noted the border patrol “escort” for the press conference. I can’t help note that the Japanese American National Museum – for those who haven’t been, it’s got a tremendously powerful series of exhibits on the WWII internment — is a little on the nose as a backdrop for a militarized show of force at a political event.)
The exact contours of the legislative package to make the redistricting initiative happen probably won’t be crystal clear until the legislature gets back next week. But among the pieces I’ll be watching:
Timing. Current law seems to say that the governor can call a special election 148 days out. The legislature, of course, can change that law — and it’ll have to in order to hit a November 4 special election target (82 days away from today). (That timing provision can be changed by statute, I believe – the date change doesn’t have to itself go on the ballot.) I’ll be looking for whether this is a one-time-only change or whether there are more general conditions for the exception. (Update: Derek Mueller reminds me that there’s another statute that doesn’t regulate when an election can be scheduled, but does say that the legislature can only put an initiative on the ballot for a scheduled election if that election is at least 131 days away. That statute would also need amending to run this Nov. 4 – and I’ve got the same questions as above.)
Funding. Part of the reason for leaving time before a special election is to give election officials the runway they need to run the thing. As Doug Chapin used to hammer home on the regular — fast, accurate, cheap: pick any two. This schedule will be fast, and the results have to be accurate. I’ll be looking to see who’s picking up the extra tab for the pre-election prep overtime.
Substance. The best reading of the state constitution is that maps are drawn by an independent commission, once per decade. That authority can be changed with a ballot initiative. But the reporting says that Newsom also plans to “put a new map” in front of voters on Nov. 4. The change to authority has to be in the constitution, but I imagine the map would be an initiated statute (and not itself constitutionalized). There’s nothing inherently weird about having both a constitutional change and a statutory change in the same measure — the proposition to put the commission in place in the first instance combined the two. But a single initiative to both change the process and pass a new specific map has some risks under the state’s single-subject rule. Two separate initiatives create questions about what happens if the electorate passes one but not the other. I’ll be looking to see how the package resolves those questions.
Additional constraints. Article XXI is the part of the state constitution that gives authority to the commission. It also has a bunch of other constraints, procedural and substantive. If the new initiative is effectively a temporary contingent carveout, how temporary? What’s the threshold of the contingency? How complete a carveout? Texas has essentially no state rules for drawing congressional districts – the only rules are the few rules in federal law. For its response, does California do the same?
Additional triggers. Newsom has said that California will respond to Texas in the maps he puts forward. I’m told that California and Texas aren’t the only two states in the Union. If another state says that it’s re-redrawing its maps to respond to California, does the initiative include provisions for re-re-redrawing the maps to respond to the response? Does the initiative include a provision allowing for later legislative amendment of the (presumably statutory) map?
The standoff in Texas over redrawing the state’s U.S. House districts to a sharply tilted Republican advantage has played out before the backdrop of a contentious U.S. Senate race that may well be making the redistricting fight more contentious.
On the Republican side, the incumbent senator, John Cornyn, has set aside his often conciliatory demeanor, as he vies with his Senate primary opponent, Attorney General Ken Paxton, to see who can look tougher with runaway Democratic lawmakers.
On the Democratic side, State Representative James Talarico and former Representatives Beto O’Rourke and Colin Allred have used the standoff to gain publicity and rally the Democratic base around the notion that democracy itself is at stake. All three are potential rivals in the Senate race.
As the candidates position themselves, they’ve woven threats of prosecution and lawsuits with taunts and dares at the other party — and, in the case of Mr. Cornyn and Mr. Paxton, at each other — with few incentives for compromise….
Michael Kang’s latest, forthcoming in Fifty Years of Buckley v. Valeo (Lee Bollinger & Geoffrey Stone eds., 2025). The abstract:
Political parties grew from seeming irrelevance in campaign finance at the time of the Federal Election Campaign Act amendments in 1974 to newfound importance in national politics by the soft money era of the 1990s. When Congress finally restricted party soft money in 2002, soft money shifted to nominally independent groups and then, in time, to Super PACs and other outside groups empowered by the Roberts Court’s de-regulation of campaign finance. As I explain here, these changes in modern campaign finance are at least partially responsible for today’s hyperpartisan and polarized politics. Some critics of modern hyperpartisanship and polarization, for this reason, now propose a surprising but simple new reform approach: de-regulation of party campaign finance to strengthen the major parties as counter-weights to the polarizing influence of wealthy donors through their Super PACs and outside groups. However, I argue that de-regulation of party fundraising likely would deepen the major parties’ dependence on their most wealthy, and ideologically extreme, donors for financial support. As a consequence, de-regulation of party fundraising would accelerate the lurch toward the polarized ideological preferences of their committed donors rather than counteract it.
Where campaign finance meets election subversion. WSJ reports:
Former Jan. 6 defendants are the new draw at local Republican fundraisers, helping to fill seats at normally sleepy events while getting a platform to tell their version of the Capitol riot.
The Davis County Republican Party in the Salt Lake City suburbs held its annual Abraham Lincoln Day Dinner in March at $75 a plate. One marquee speaker was a pardoned defendant who federal prosecutors said knocked back a shot of Fireball whiskey in the conference room of then House Speaker Nancy Pelosi.
“This was not an insurrection,” the speaker, Treniss Evans, told the crowd. “This was Kent State. This was Tiananmen Square.”
What could make Musk’s effort different from past attempts? The obvious answer is money. He’s the world’s richest person, with a net worth variously estimated near or above $400 billion. He spent more than $250 million helping Trump get elected last year.
But just how much is Musk willing to invest to build a party capable of running serious elections up and down the ballot? …
This isn’t a one-time investment. Party-building is a day-in, day-out, year-in, year-out proposition….
Money is important, but it’s not everything. A major challenge would be finding quality candidates willing to join Musk in his undertaking. How would he build the infrastructure needed to identify, recruit and arm the people capable of running effective challenges to the existing parties?
Christine Whitman (R) and Jon Corzine (D) urge the New Jersey Supreme Court to lead the way in reducing the cycle of polarization. In an opinion piece, the two former Governors of New Jersey explain how recognizing the constitutional burdens anti-fusion laws place on minor parties is a meaningful path to undoing the pathologies of hyperpolarization and undercutting the appeal of authoritarianism. They write:
“Governance is failing because politics is failing, and politics is failing because our two major parties are no longer the ‘big tents’ they once were. There used to be liberal, moderate and conservative factions in both the Democratic and Republican parties, but now those are long gone. We have sorted ourselves into two distinct tribes, and, for too many Americans, the rival camp is seen as an existential threat that must be degraded and destroyed. Negotiation is for weaklings; compromise is surrender. Nothing but domination is acceptable, and that cuts at the very heart of this wondrous but fragile system known as democracy.
Litigation in New Jersey challenging the state’s anti-fusion laws could–if the Court accepts the case–help break the cycle.
By definition, fusion encourages inter-party coalitions to form, which adds stability and legitimacy to governance. It also punishes extremism, because it allows major party voters who are dismayed by the direction of their traditional party — and may currently feel they have nowhere to go — to build a new one.
. . . .
It gives us pride to imagine that the Garden State might lead the way to a better political party system and a more representative and effective government.
Theoretically, the New Jersey state legislature couldsolve the problem by simply repealing the ban. Still, as these two savvy politicians understand, self-interest makes “[d]ominant parties… generally unwilling to change the rules in order to allow new centers of power to breathe.”
In an exceptionally clear piece in Newsweek, William Kristol and Tom Rogers, members of the ABA cross-partisan Task Force for American democracy, explain fusion voting and how relegalizing it could “break political polarization and empower the center.” The authors illustrate their argument by “imagin[ing] a new political party of ‘politically homeless’ centrists. Call it the Common Sense Party”–explaining how fusion could empower its voters and elevate their concerns (hypothetically, “the rule of law, principled bargaining and compromise, and civility in public life”).
This is an important opinion piece as the NJ Supreme Court considers whether to take up the legality of fusion under its state constitution.
“We are heartened that the ABA Task Force’s final report may encourage the states to reconsider the bans on fusion voting passed by the major parties a century ago. As we write, there is litigation underway in New Jersey, Kansas, and Wisconsin to have these bans declared unconstitutional under their respective state constitutions.”
The ABA Task Force for American Democracy assessed the most practical reforms for bolstering voter confidence in the integrity of our elections and reinforcing the importance of the rule of law.
