Accountability Claims in Constitutional Law

I just posted a new article of mine, “Accountability Claims in Constitutional Law,” that recently came out in the Northwestern University Law Review. The abstract is below. While the piece addresses a range of constitutional doctrines, readers of this blog will be most interested in its treatment of campaign finance regulation. The Supreme Court often asserts that it promotes electoral accountability when it strikes down restrictions on money in politics. Without these restrictions, in the Court’s view, corporations, unions, and other groups are able to deploy more funds to inform voters about incumbents’ records, thus rendering incumbents more accountable.

The article explains why this claim is wrong — indeed, backward. First, campaign finance regulation tends to affect incumbents more than challengers. It therefore shrinks the spending advantage that incumbents enjoy over their rivals. Second, incumbents’ smaller spending advantage produces more competitive elections. Races are typically closer when candidates are more evenly matched in resources. And third, voters respond to greater competition by learning more about incumbents’ records and more often voting based on them. Voters respond, that is, by holding incumbents more accountable for their performances. Accordingly, it is campaign finance regulation — not deregulation — that actually fosters greater accountability.

Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances.

There is just one problem with these claims. They are wrong—at least for the most part. To illustrate their error, I identify four conditions that must be satisfied in order for incumbents to be held accountable. Voters must (1) know about incumbents’ records, (2) form judgments about them, (3) attribute responsibility for them, and (4) cast ballots based on these judgments and attributions. I then present extensive empirical evidence showing that these conditions typically are not met in the scenarios contemplated by the Court. The crux of the problem is that voters are less informed than the Court supposes, more likely to be biased by their partisan affiliations, and less apt to vote retrospectively than in some other way. Accountability thus does not rise in response to the Court’s interventions—at least not much.

The qualifiers, though, are important. If the Court’s claims are mostly wrong, then they are partly right. If accountability does not rise much due to the Court’s efforts, then it does go up a bit. These points are established by the same studies that document the general inadequacy of the Court’s reasoning. With respect to certain voters in certain settings, accountability is influenced by presidential control over agencies, congressional delegation to agencies, federal commandeering of state governments, and regulation of campaign spending. That is why this Article discounts accountability as a constitutional value but not does reject it altogether.

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