West Virginia v. EPA, one of the blockbusters on the Supreme Court’s docket this term, is an administrative law, not an election law, case. The question is whether the EPA has the authority to regulate greenhouse gases in certain ways—and, if so, whether Congress’s delegation of that power to the agency is constitutional. However, one of the main arguments in West Virginia is right in the wheelhouse of election law. This claim is that, if Congress were forced to address more issues itself—instead of delegating them to agencies—the electoral accountability of legislators would significantly increase. Voters would frequently vote for (or against) members of Congress if they supported (or opposed) the additional stances the legislators took.
Yesterday, the Election Law Clinic at Harvard Law School filed an amicus brief in West Virginia on behalf of Jed Stiglitz, Chris Warshaw, and me. The brief explains that the accountability claim that underpins the major question and nondelegation doctrines—the doctrines the Court might invoke in West Virginia—is empirically unfounded. In fact, if Congress had to tackle more issues itself, the electoral accountability of legislators would barely budge due to the realities of voter behavior. Accordingly, the Court should not use their putative effects on accountability as a justification for the major question and nondelegation doctrines. Here are some excerpts from the brief’s introduction:
Fictions—inaccurate accounts of how the world works—sometimes pop up in the law. Legal fictions can be comforting. They can express how we wish the world worked, even though it doesn’t. Today’s legal fictions can also reflect yesterday’s truths. It’s possible the world used to work a certain way, but now no longer does. Whatever their origin, this Court has made clear that, once their falsity has been established, legal fictions must be abandoned. The law must be built on a foundation of fact. . . .
In this case, two of the doctrines Petitioners invoke are based, in part, on a fiction. These doctrines are the major question doctrine (the canon that no judicial deference is due to agency statutory interpretations involving particularly important issues) and the nondelegation doctrine (the rule that Congress is barred from delegating to agencies in overly broad terms). The fiction is that, if these doctrines were enforced more vigorously, significant gains in congressional accountability would follow. On the matters returned to Congress, voters would frequently reward (or punish) legislators for policy stances of which voters approved (or disapproved). . . .
[E]lectoral accountability for a member of Congress for a vote on a bill requires four conditions to be satisfied. First, the member’s constituents must know about the bill. Second, the constituents must know how the member voted on the bill. Third, the constituents must make evaluations, positive or negative, of the member’s vote. And fourth, at the next election, the constituents must cast their ballots at least partly based on these evaluations. Importantly, these conditions are both necessary and sufficient for electoral accountability to arise. If any of them isn’t met, a member of Congress can’t be held accountable for a vote on a bill.
The reason why greater enforcement of the major question and nondelegation doctrines wouldn’t produce significant accountability gains, then, is that each accountability condition would frequently be unfulfilled. First, many voters are unaware of the bills (even the important ones) that Congress considers. In fact, most voters can’t identify a single bill on which their House member voted over the last two years. Second, many voters can’t say (or say incorrectly) how legislators voted on key bills. With respect to Congress’s highest-profile bills over the last generation, more than forty percent of respondents, on average, weren’t sure how their House member voted. Another twenty percent were sure but were wrong in their beliefs.
Third, many voters don’t independently evaluate legislators’ votes. Instead, they follow the party line, backing policies their party favors and opposing ones it doesn’t. In a series of experiments, simply telling subjects how the major parties in Congress divided on a bill hugely swayed subjects’ assessments of the bill, bringing their views in line with their party’s. And fourth, many voters don’t cast ballots based on legislators’ past votes. Congress members’ votes on key bills seldom have discernible electoral implications, the exceptions being prominent bills like the Affordable Care Act. Retrospective voting based on Congress members’ past votes is overshadowed by other forms of voting, like voting based on party, ideology, the state of the economy, or approval of the President.