“Governing and Deciding Who Governs”

Josh Chafetz has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum). Here is the abstract:

In McCutcheon v. Federal Election Commission, Chief Justice Roberts wrote that, “Campaign finance restrictions that pursue other objectives [than eradicating quid pro quo corruption or its appearance], we have explained, impermissibly inject the Government ‘into the debate over who should govern.’ And those who govern should be the last people to help decide who should govern.”

This passage sounds great — after all, who could object to an attempt to purge official self-dealing, especially in the election-law context? And therein lies its insidiousness: this rousing language masks a programmatic attempt by Roberts and his colleagues to distance themselves rhetorically from the structures and processes of governance and thereby to justify their privileged place above the other branches with regard to such issues.

This essay, written for the University of Chicago Legal Forum‘s 2014 “Does Election Law Serve the Electorate?” symposium, identifies and unpacks two distinct distancing strategies exemplified in that passage. First, the Court’s use of the first-person plural (“we have explained”) posits a trans-temporal unified identity for the Court, which is implicitly contrasted with the shifts and vagaries of mere electoral politics. Part I examines this judicial self-presentation by contrasting the treatment of corruption in Caperton, on the one hand, and Citizens United and McCutcheon, on the other. Second, Roberts’s implicit contrasting of the Court with “those who govern” serves to suggest that the Court is somehow removed from the arena of partisan politics. Part II discusses this claim with reference toBush v. GoreShelby County, and election-law disputes surrounding the 2014 midterms.

The conclusion will consider what these rhetorical distancing strategies get the Court, and what a critical evaluation of them gets us.

I heard this paper presented last week and it sounds terrific.  I can’t wait to read it!

Share this: