Last week’s decision in Rucho v. Common Cause rests on the claim that the Supreme Court cannot determine when districting is unfair because it lacks a constitutionally mandated standard of fair districting. Without a standard of fairness, there is no baseline against which to judge whether particular gerrymanders violate the Constitution, according to Chief Justice Roberts.
The crux of Rucho’s holding is the claim that these two ideas – unfairness and fairness – are crucially dependent on each other, like flip sides of the same coin. That this is the heart of the majority’s argument is confirmed by Justice Kagan’s dissent, which rejects precisely this point. In her view, the Court does not need to adopt a definition of fair districting in order to hold the North Carolina and Maryland maps at issue in this case unconstitutional. Instead, we just need to recognize certain types of unfairness, which these maps exhibit. Unfairness, in her view, exists when partisanship and/or incumbency-protection play such a large role that the enacted map is a statistical outlier, as compared to those maps that the state could have adopted consistent with its own districting principles (partisanship excepted). For Justice Kagan, the opposite of unfairness is not fairness; it is the absence of excessive partisanship.
Perhaps surprisingly, Justice Roberts’ rationale has important implications for the Court’s campaign finance jurisprudence. Sounds odd, I know, but bear with me. When states or Congress enact laws that restrict giving or spending money in connection with elections, the Supreme Court has long held that such laws implicate the First Amendment. Because these laws restrict “speech,” in the Court’s view, they are permissible only if they are justified by a compelling state interest, which the Court has limited to preventing corruption or the appearance of corruption. Since 1976, when the Court first adopted this approach, “corruption” has been defined in various ways. When it is defined broadly, more laws are upheld; when it is defined narrowly, more laws are struck down. All this is familiar. What is important to notice about the doctrine is this: The Court defines corruption of a legislator without being able to articulate the reciprocal idea – proper legislative conduct.
“Corruption,” even more than unfairness, depends on a definition of its opposite. What counts as corruption of one institution is different from what counts as corruption of another and so we need a definition of how the institution or official ought to act in order to know when we have corruption. I’ll borrow an example from my article Defining Corruption and Constitutionalizing Democracy, 111 Mich. L. Rev. 1385 (2013).
Suppose I am a public official hiring someone for a public job. Giving the job to John, despite the fact that he is less qualified than other applicants, because he is my brother-in-law, constitutes a classic case of corruption…. Contrast this example with the following one. Suppose I decide to invite John to a holiday dinner at my house. I invite him, even though he is a less-gifted conversationalist than other possible dinner invitees, because he is my brother-in-law. Here I do not act corruptly.
We can only determine that inviting John is corrupt in the first instance but not in the second because we have in mind a sense of how each actor ought to act. In other words, defining legislative corruption is dependent on a definition (not provided by the Court) of proper legislative behavior. Yet, in its campaign finance cases, the Court freely defines corruption without defining its opposite.
In both contexts – redistricting and campaign finance – we are dealing with central questions of democracy. While there are good arguments for both judicial supervision and judicial restraint in both contexts, what should be avoided is supervision in one and restraint in the other. Either the Court can define unfair and corrupt legislative action without a constitutionally mandated and clear definition of fair representation and good government, or it cannot.
Two objections to this argument come to mind. First, one might say that the examples are different because in the campaign finance context, the Court must define corruption in order to protect free speech. This argument fails to distinguish the contexts because a similar argument can be made in the case of gerrymandering: the Court must define unfairness in order to protect the equal political participation guaranteed by the Equal Protection Clause. In fact, Justice Kagan makes exactly this point. Alternatively, one might say that legislative corruption is easier to define than unfairness in districting. I don’t think that is true: both have extreme examples that all agree are corrupt or unfair: bribery in the first instance, extreme partisan gerrymandering in the second. And both give rise to less extreme examples that people disagree about.
So where does this leave us? There is an important tension between Rucho’s view that the Supreme Court cannot define unfair districting without a constitutionally mandated definition of fair districting and its view that the Supreme Court can define legislative corruption without a constitutionally mandated definition of legislative duty. The Court is wary this term to put forward a contested vision of how democracy should operate. But given that reluctance, it should be similarly wary to do so when it confronts democratically enacted laws that define corruption in ways that are broader than the view the Supreme Court currently espouses.