My friend and NYU colleague Rick Pildes, anticipating the Supreme Court’s ruling in the Arizona redistricting case, argues strongly for the Court to let independent redistricting commissions flourish.  The question presented – – whether “legislature” can be read to mean an independent, unelected body to which complete redistricting authority is delegated – – strikes Rick as somewhat beside the point.

The Framers could not have thought about this question, Rick writes, and so could not have ruled out this institutional innovation.  While “not naïve about the risk that officeholders would try to aggrandize their own power”,  they “didn’t have in their mental toolbox the possibility of the kind of specialized, relatively independent institutions that later emerged for tasks like drawing election districts or regulating other aspects of the democratic process.”  Other democracies have worked successfully with these institutions, and Rick contends that ours should be able to do so as well, as an effective means of addressing partisan self-interestedness in the drawing of district lines.

We will see Monday, of course, how all this goes.  But Rick’s interesting argument relies on a few assumptions that merit a close look.

First, it is not clear how we judge what might have been found in the Framers’ “mental toolbox”.  One could say, as does Rick, that they did not anticipate that “specialized, relatively independent institutions” might carry out responsibilities formally assigned to one of the branches.  Or one could say that, on all the evidence of their constitutional thought, they would not have seriously considered “specialized, relatively independent institutions” operating free and clear of the other branches (save the judiciary).   They were suspicious of unfettered democratic control; they were committed to checks on the powers of governing institutions.  So what about the creation and operation of these “independent” lawmaking entitles would they have found appealing?   And if Rick is right that they might have entertained the possibility, it goes far to say, as he does, that “if the Constitution had not been written at the dawn of constitutional democracy, we probably would have independent institutions for essential democratic tasks, like the drawing of election districts…” (emphasis added).

Second, it is easy to lionize independence and not adequately account for the concomitant loss of accountability – – democratic accountability.  This is a lesson we have learned in other contexts, as in the disastrous experiment with “independent counsels” that operated in a shadowy borderland somewhere between the executive and judicial branches.

Third, Rick does not contend with a fundamental objection lodged by the Arizona legislature, namely, that its formal authority in redistricting matters is effectively eliminated.  It has to fund the operations of the IRC and that’s that—unless one puts much weight on its ability to make non-binding recommendations.  It has been dislodged from the redistricting process altogether.  Whatever the merits of Rick’s argument for independent redistricting commissions, or for that matter his suggestion about what the Framers “mental toolbox “included, the Arizona plan puts the question in its most pronounced form – – can the reference to “legislature” mean the legislature has no role at all?

Fourth, references to “direct democracy” tend to misrepresent the options for democratic control over abuses in the redistricting process.  Legislators have in theory to answer at the ballot box for redistricting, and there are ways beyond “voting the bums out” in which the discharge of their responsibilities may be put into question and influenced in the direction reformers are arguing for.  Arizona has adopted more of the “either/or” approach that effectively displaces the operation of ordinary politics.  For example, the work of the IRC, while it can be challenged in court, cannot be put to voter judgment by popular referendum.

Finally, “direct democracy” buttresses Rick’s argument with a phrase that carries considerable rhetorical power but has more problematic practical implications.  He does note that direct democracy is “controversial,” and he cites the possibility that “majorities can too easily override minority rights.”  He could have said more.  Successful ballot initiatives can represent the triumph of those with the most money and savvy who can move through a low turnout electorate policy outcomes that might have been decided differently on wider participation and more equal terms of competition.  Initiatives and the like have their place in the democratic inventory, to be sure: but they have to be considered critically when put up argumentatively against the suspect “self-interestedness” of elected representatives.

Rick makes his case impressively but maybe overstates it.  And in some respects he doesn’t address the very specific case – – does the Constitution confer absolute lawmaking authority over redistricting on unaccountable “specialized, relatively independent institutions”?