By Richard L. Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School

In my first two posts (Feb. 21, Feb. 23), I wrote more generally about the appropriate level of modesty for the Supreme Court to use in approaching the election law cases. In my final two posts, I will focus on more of the specifics related to the two cases before the Supreme Court this week. Today, I tackle the Vermont case; my next post will consider the Texas cases. (I assume that the reader has background on the Vermont case from either the other posts, Richard Briffault’s excellent article in the Election Law Journal (cited earlier by Dan Lowenstein), or Richard’s other excellent article on the topic, Richard Briffault, The Return of Spending Limits: Campaign Finance after Landell v. Sorell, 32 Fordham Urban L.J. 399 (2005).)

On the spending limits question, I believe it is unlikely that the new Roberts Court will reach out and hold, contrary to Buckley and to the Supreme Court’s understanding for the last generation, that candidate spending limits are constitutional. True, the “time preservation” argument of the law’s defenders once attracted the attention of Justice Kennedy-but it is of course true that a more narrowly tailored means of preserving candidate time (spent fundraising) is to impose a higher contribution limit or no limit at all. The alternative anti-corruption interest to support the law seems difficult for the current Court to accept without pulling down the entire Buckley edifice, and as Richard Briffault has noted, a predictable consequence of capping candidate spending without capping independent spending will be to further increase the importance of independent spending. The Court will likely be wary, following McConnell, of further undermining of the role of candidates and parties in elections.

More likely the Court will declare more forthrightly than in Buckley that candidate spending limits can never be constitutional. This would be quite unfortunate from the point of view of those of us who support reasonable campaign finance regulations. Indeed, for this reason I have been critical of the decision of the law’s supporters to urge the Supreme Court to take the case. The alternative would have been further proceedings in the lower courts while the Vermont law took effect, in essence giving us a chance to see if robust political debate would be curtailed by the new laws.

The Supreme Court should decline to rule on the spending limits question, leaving open the possibility that a narrowly tailored spending limit (particularly one coupled with generous decentralized public financing that allows for robust political debate) could somehow pass constitutional muster. In due course, the Court can reverse the Vermont limits when the case returns after remand, if it is convinced (as it likely would be) that the First Amendment costs of the particular Vermont scheme are too high.

On the contribution limits question, the court will face the issue raised recently by Ned Foley: how much does the Court want to adhere to precedent? It seems pretty clear that the Vermont contribution limits should withstand scrutiny under the “New Deference Quartet” beginning with Shrink Missouri and culminating with the McConnell case. A modest Roberts Court may choose to move slowly and adhere to precedent, but I doubt this new precedent will hold much weight with a new Court majority.

I have recently suggested that there may be good reasons for the Court to tinker with the contribution limits cases, in ways that continue to show deference to the value judgments made by legislative bodies but with skepticism about means and ends. Applied in the context of contribution limits, I would like the courts to look more closely at whether there is evidence that such laws further the stated and proven interests of the state in preventing corruption, preserving democratic legitimacy, or assuring political equality without infringing too much on First Amendment rights of political speech and association. I fear, however, that the Court will not move in this direction of careful balancing, but instead will take the first steps toward dismantling the New Deference cases and ultimately mandate for Congress and every local and state government a deregulated system of campaign finance, where corporations, unions and wealthy individuals can give as much as they like directly to candidates for political purposes.

By Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law

When elections are financed by private money, as in most elections today in the United States, I am skeptical that regulation of that private financing system is capable of making all that much difference. That skepticism is tempered by the initial success of the McCain-Feingold law; for at least the first election in which it applied, in 2004, that law does seem to have dramatically reduced corporate and union spending in elections. Nonetheless, the money that fuels elections will still come from people that can afford to devote disposable income to elections, along with entities that can donate large amounts. No matter what kind of contribution or spending limits might be adopted, those without lots of money to devote to politics will still not become the dominant funders and spenders in elections. Regulate contributions to candidates, and large donors will give to parties; regulate contributions to parties, and large donors will take out ads directly themselves or create private entities to do so.

And public financing faces a similar dynamic. Unless the amount of public financing is set high enough to make politicians indifferent to any private contributions or spending on their behalf, the same dynamic will set in. Indeed, it already has: we do publicly finance the national political party conventions, but that has made no difference at all; because the parties still benefit from resources well beyond those publicly provided, the parties still chase and get massive private donations – and the worries about the possible ties between political influence and these donations are no different now than before we began financing the conventions. We would do better to spend that money on anything else: unless public financing is high enough, it just becomes seed money for raising private dollars and buys nothing in the way of reduced private influence.

So what does that skepticism mean for the Vermont spending-limits case? Perhaps reformers should hope, perversely, for a dramatic rejection of Buckley v. Valeo, with the new Justices joining others to hold that all regulation of election financing – contributions to candidates as well as spending limits – violate the First Amendment. To the extent public perceptions about the corruption of large donations remains high, perhaps reformers would be able to mobilize the resulting frustration into support for a shift to publicly financed elections – an option with little current traction nationally. As I said, such elections are not a panacea; but I do think public financing is more likely to achieve the reformers’ goals than further efforts to regulate private financing – and would not raise the same First Amendment concerns.

The alternative dramatic rejection of Buckley was hinted at in the McCain-Feingold case a few years back, McConnell, in which the Court seemed to conclude it had contributed little to making sense of this issue over the years and essentially ceded the terrain to legislatures. Justice Kennedy hinted that he, too, might have such a belief, though the direction of his views is hard to read so far. But with two new Justices, neither of these dramatic paths seems likely right now. These are exceptionally difficult problems and, for better or worse, I would expect new Justices to want time to get comfortable and knowledgeable before any dramatic break. The route of least resistance is to affirm Buckley’s spending limits, which is what I expect. Brad Smith is correct, in my view, that we will likely learn more about the views of new Justices by focusing on the side of the case least noticed by the press – the side in which the Court reveals how aggressively it will scrutinize legislative caps on campaign contributions. In particular, Vermont ‘s limit of $500 on how much political parties can give their candidates seems, on its face, peculiarly low. But there’s no way to know without a deeper understanding of the facts.

If I am skeptical about the likely success of reforms, as long as elections remain privately financed, I nonetheless think legislatures should have room to experiment with different approaches, with certain caveats. One of these is the risk that I noted in earlier posts: that sitting officeholders will “regulate” financing in a way designed to make it even more difficult for challengers. If I thought campaign finance regulation – of contributions, spending, or any combination of the two – necessarily and inherently had that effect, then I would not just be skeptical of regulation, I’d be against it. As that earlier post noted, some critics of regulation – I take Brad Smith and Justice Scalia and George Will to be in this camp – do seem to take exactly that position. The brief for the petitioners in the Vermont case also makes this claim. So I would like to ask Brad: is it your view (and, by implication, that of others in this camp, to the extent your well-informed views reflect theirs) that regulation of contributions necessarily does make incumbents more invulnerable? Regulation of spending? If this is not inherently the case, then how would you have courts judge, case by case, when regulations are anti-competitive and when not? I ask these as serious questions, because I share the concern that finance rules not be used for anti-competitive purposes.

My own reading of the evidence, though, is that the right kind of regulation can enhance the competitiveness of elections. Not dramatically – I remain skeptical of that as well. But if it does turn out that regulation causes elections to be more competitive, Brad, would you then become more supportive? To be sure, there would still be further, serious First Amendment issues to be concerned about. But since the First Amendment is concerned with competition of ideas and means to hold political officeholders accountable, regulation that did enhance competition would also resonate with First Amendment concerns. Before we added two new Justices to the Court, the Court seemed poised – wearily, perhaps skeptically – to reduce its role and allow more legislative experimentation in this area. I expect no dramatic breaks from that this week, but perhaps we will have a few tea leaves that enable us to sense how much the new Justices – who lack the exhaustion with this issue of the rest of the Court – will be willing to tolerate state experimentation in this difficult area.

By Daniel Lowenstein
Professor of Law
UCLA School of Law

Several issues are raised in the Vermont campaign finance case, but I shall discuss here only the most fundamental issue, which the Supreme Court may or may not reach-the constitutionality of limits on campaign spending. For an excellent review of all the issues in the case, see the Case Preview by Richard Briffault at 5 Election Law Journal 74-86 (2006).

In Buckley v. Valeo, 424 U.S. 1 (1976), the Court strongly distinguished between limits on campaign contributions and on campaign spending. Contribution limits, while they significantly impinge on freedom of association, have a relatively minor effect on freedom of speech. Spending limits are direct and highly restrictive controls on speech. Recent cases have made it clear that contribution limits receive “intermediate” constitutional review, more lenient than the “strict” review applied to spending limits. The Buckley Court also found that contribution limits are better than spending limits in accomplishing the public purpose of controlling corruption and the appearance of corruption-or, as I prefer to say, controlling conflicts of interest.

Like most commentators, I have strongly criticized Buckley v. Valeo. I continue to believe that it was unwise for the Court to write a constitutional treatise on the subject before the 1974 campaign finance law had even gone into effect and that many of the particular arguments made in Buckley are weak. Nevertheless, as the decades have passed and as I have become more and more impressed by the profound difficulty of finding adequate approaches to campaign finance and its regulation, I have come increasingly to respect the actual judgments made in Buckley.

On one important point I continue to believe Buckley was mistaken. The Court claimed that given contribution limits, campaign spending limits are redundant as a device to control conflicts of interest. If only contributions over a certain amount create the possibility of conflict of interest and contributions over that amount are prohibited, a limit on campaign spending is superfluous. What this overlooks is that there is no one threshold beneath which conflicts of interest cannot arise. Contribution limits are set with many factors in mind, including the need for candidates and parties to raise ample amounts to run their campaigns. A limit on total campaign spending limits the demand for contributions and therefore may be expected to limit the pressure created by contributions.

Although I believe the Court underestimated the usefulness of spending limits as an anti-conflict of interest device, I still believe spending limits are very bad policy. One argument commonly given against spending limits is that they are anticompetitive and, in particular, that they favor incumbents. There is some merit in that argument, but I do not place as much weight on it as some do. For one thing, the empirical evidence that spending limits benefit incumbents exists but it is not as unequivocal as it once seemed to be. For another, there is a tendency to make a fetish out of competitive elections and the defeat of incumbents. Competitiveness in the electoral system is a value, but it has its limits and at best it is only one of many means toward a well-functioning democratic system.

If that argument against spending limits tends to be overblown, another argument does not receive nearly enough attention. A regime of effective spending limits makes bureaucratic and judicial decisions much too important in election campaigns. The world in which campaigns operate is complicated, diverse, and ever-changing. It therefore is inevitable that difficult questions will continually arise over what counts as an expenditure for purposes of limits. In the worst case, these decisions will be made by commissioners or judges who are less than impartial in the heat of a campaign. But the best case, in which the decision-makers make good faith judgments, is still a bad case. Campaigns and elections should be decided politically, not by arcane legal arguments.

A typical example of the problem, albeit in the context of contribution regulations, arose in the 2005 California campaign over Proposition 77, the redistricting initiative. Governor Schwarzenegger, the leading supporter of the initiative, was willing and able to raise millions for the campaign. The No on 77 Committee depended on money that would be raised by California members of the House of Representatives. But a question arose whether, under obscure provisions of the Bipartisan Campaign Reform Act, members of Congress were permitted to raise money for a state initiative campaign. The question was decided-correctly in my opinion-by a 5-1 vote in the Federal Election Commission permitting the House members to raise campaign funds. The point here is not whether the FEC was right or wrong but that there were strong legal arguments on both sides. A democratic system is less than free when the outcome of important elections can turn on such proceedings.

Finally, there is the most obvious problem with spending limits-that, as the Court said in Buckley , they are a direct and important restriction on freedom of speech. If a campaign has spent its limit and is effectively unable to continue to promulgate its message, there is no getting around the fact that its right to speak has been stifled in the very setting that is most central to democratic politics. The premise of spending limits is that the reformers can judge how much spending is enough. But that premise is profoundly wrong. First, very few reformers have significant experience managing campaigns, so even if there is anyone qualified to make that judgment, the reformers who set the limits are not. Second, no one is qualified to make that decision. Enough speech, in a free society, is as much speech as the speaker wants to and is able to speak. Even if the reformers could determine what the typical campaign “needs” to spend, what about the untypical campaign?

Does it follow that I hope the Court either reaffirms the ban on spending limits or declines to revisit the question? Yes, but not as strongly as the foregoing suggests. The reason is that I believe in judicial restraint. In a democracy, important public policy questions should be decided by elected representatives, not by judges. Judicial review is an important part of our system, and the case for aggressive judicial protection of freedom of speech, especially political speech, is stronger than on most other matters. But not so much stronger as some people believe. The notion that the ground rules of the political process are themselves somehow non-political and subject to neutral principles that can be administered impartially by judges without popular control is, in my opinion, mistaken.

My understanding of campaign finance tells me that campaign spending limits are unconstitutional. My understanding of constitutional jurisprudence tell me, don’t be so sure!

By Bradley A. Smith
Professor of Law
Capital University School of Law

Randall v. Sorrell seems destined to be known as “the Vermont spending limits case.” At least that’s what most people I know call it – including me. That’s unfortunate, because the more interesting, and potentially more important part of the case is the challenge to numerous contribution limits in the Vermont law.

It’s easy to see why spending limits have been the focus of the case. For years, supporters of campaign finance regulation have sought spending limits. So long as spending is unlimited, the unlimited demand for funds will mean constant efforts to circumvent contribution limits. (That spending limits may merely result in constant efforts to circumvent spending limits seems not to have occurred to anyone). But since Buckley v. Valeo, it has been generally presumed that spending limits are unconstitutional. The Vermont statute was intentionally passed to challenge Buckley , or at least the common interpretation of Buckley, on this point. Thus the decision of the Court of Appeals to open the door to spending limits was stunning news, and the dissent by Judge Winter – as powerful and thorough a dissent as I can recall, in any case on any issue – was most cogent on this point. For the Supreme Court to uphold the limits would mark a major change in campaign finance jurisprudence.

That said, I think it unlikely that the Court will uphold the limits. It seems fairly clear from past cases that Justices Scalia, Kennedy, and Thomas will not. Leaving aside the Court’s liberals, I am skeptical that either Chief Justice Roberts or Justice Alito will uphold the limits – and that makes five to strike down Vermont ‘s spending limits and maintain the Buckley status quo, even if all four liberal justices vote to uphold – no sure thing, given the precedent.

The contribution limits, on the other hand, seem more likely to create new law. Vermont ‘s limits are the lowest in the nation, as little as $200 for a state legislative district, up to just $400 for a statewide office. Of course, some state has to have the lowest limits in the country, and it may as well be Vermont , which is pretty small – 49th in population. But $400 is not very much for a statewide “district” with over 600,000 people. Adding to this is that all in-kind contributions count toward the limit, and this appears to include, for example, using a personal cell phone to make a call, using one’s personal auto, contributing a pen or pencil, or providing a deli sandwich to a volunteer worker.

In upholding contribution limits, the Buckley court noted that there could come a point at which limits were set so low as to prevent a candidate from raising enough cash to get his message out to the public – that, suggested the Court, would be constitutionally problematic. The Randall plaintiffs complain that the Vermont limits have reached that problematic stage. If the Court agrees with the plaintiffs, it will open up state laws to a great deal of second guessing as to just how low they can set limits without violating the Constitution. On the other hand, to uphold the limits would make clear that there is almost no lower boundary to what legislators can set as contribution limits. Either way, the Court’s decision will impact the law.

The third option, of course, is that the Court could decide that the limits here are too low, but that it cannot effectively micromanage the legislators. That could lead it to simply strike down limits entirely, as the only manageable standard – Justices Scalia and Thomas have already staked out that position, and Justice Kennedy has shown some sympathy to it. This result seems unlikely to me, but it’s not inconceivable and if adopted, it would be the blockbuster result of the case.

Even assuming the Court upholds the basic limits, it may balk at the limits on party activity. Under the Vermont law, parties are subject to the same limits as individuals. Where a political party is concerned, a $400 limit for a statewide race, including all independent expenditures as well as contributions, truly seems to cut parties out of the picture. In Colorado Republican Federal Campaign Committee v. FEC, the Court upheld limits on coordinated party expenditures as an “anti-circumvention” measure, but this case is asking a whole lot more of the Court. Frankly, it is very difficult to see how a $400 contribution from a party could “corrupt” a candidate, even using the amorphous definition of “corruption” adopted in McConnell v. FEC. And since party support is especially vital to challengers, the Vermont limits pose a real threat to competitive elections. While various options are open to the Court, any way it goes it is likely to upset the current Constitutional regime – the question is whether it will make a big splash, or merely add a few ripples to the water.

So watch the contribution limit issue. It is really the trickier one for the Court, and the one more likely to make new law. Perhaps, by summer, we’ll be calling Randall the ” Vermont contribution limits case.”

By Richard L. Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School

Both Rick Pildes and Brad Smith disagree with my call for the Court to act modestly. Rick calls my formulation “simplistic-and loaded,” essentially a pejorative label applied to election law policy I don’t like. Brad writes that “one person’s ‘careful balancing’. is another’s ‘mighty platonic guardian’ activism.” I respectfully disagree.

Let’s understand what is potentially at stake in these cases (or, as I have explained, at stake in the Supreme Court’s grappling with these issues over the next decade). If Brad Smith had his druthers, the Supreme Court would bar Congress, every state, and every local government from enacting any limits on the amount of money that any individual, corporation, or union could contribute to any candidate or committee. He’s not even sure that requiring disclosure would be consistent with a First Amendment right to “anonymous speech.”

If Rick Pildes had his druthers, the courts would have the power to examine every redistricting of congressional districts done in every state every ten years to make sure that the plan is sufficiently “competitive.” It is not clear how competitive districts would have to be-a problem that gives too much power on politically loaded questions to judges, as Dan Lowenstein notes. But even setting that problem aside, it appears that Rick would require states to place competitiveness above other valid interests, such as keeping communities of interest together.

Competitive districts create their own problems. There’s no question that one could create more competitive districts (in California , think liberal Santa Monica in the same district with conservative parts of Orange County ), but that would change the nature of representation. We would have more centrist representatives. That may or may not be desirable; but the Constitution certainly doesn’t mandate one form of representation. And what of majority-minority districts required by the Voting Rights Act? Also, if we had more competitive districts, we could see wild swings in congressional representation as Democrats or Republicans gain a small and temporary bump in public approval. Finally, looking at the Congress and the political system more broadly rather than at individual districts, it is hard to argue that our politics are insufficiently competitive.

All of this is not to say that Brad or Rick’s policy suggestions are bad ones. On redistricting, for example, I support moves toward nonpartisan redistricting commissions. But the Constitution does not mandate these policy changes. (Rick can correct me if I am wrong, but I believe his reliance on the Elections Clause is of recent vintage; in the past, Rick and his often-co-author Sam Issacharoff have argued for the court to read competition into the Constitution even while acknowledging that the Constitution does not explicitly provide a “textual hook” for doing so.)

The common problem with Brad’s and Rick’s projects is that they would have the Supreme Court impose “one size fits all” solutions for the entire United States, when there is no compelling reason to do so. A court that acts modestly considers whether intervention is really necessary, or whether the political process itself can be trusted to work things out. It engages in careful balancing on a step-by-step basis, balancing individual rights against the stated and proven interests of the state.

When it comes to campaign finance, a court conducting a careful balancing could well conclude that the Vermont spending limits impose too high a free speech cost, particularly because they are not coupled with generous public financing to ensure that a variety of different voices are heard. But Brad would have the court strike down the Vermont contribution limits too, taking the Court down the deregulationist road without a showing that contribution limits have prevented robust political debate.

When it comes to redistricting, Dan Lowenstein is right that there is a political solution-the Constitution fully empowers Congress to ban mid-decade redistricting. And states can impose redistricting reform on their own. Rick might claim that self-interested legislators will never draw competitive districts on their own. But what is interesting is that in the 24 states with the initiative process, where the people can make an end-run around the legislature, we don’t see a clamoring for redistricting reform. (Voters recently rejected such reform in California and Ohio .) Until we know the political process is really stuck, it is premature for courts to impose such draconian limits on state redistricting processes.

By Daniel Lowenstein
Professor of Law
UCLA School of Law

There are three major issues in the Texas redistricting case: voting rights, partisan gerrymandering, and mid-decade redistricting. I shall comment on the latter two.

In Davis v. Bandemer, 478 U.S. 109 (1986), the Supreme Court held that constitutional challenges to partisan gerrymanders are justiciable but that gerrymanders do not violate the Constitution except under extraordinary (nearly impossible) circumstances. In Vieth v. Jubelirer, 124 S.Ct. 1769 (2004), a plurality of four justices would have overruled Bandemer because of an ill-founded conclusion that Bandemer failed to establish manageable standards. Four justices dissented. The pivotal vote was cast by Justice Kennedy. In a remarkably irresponsible decision, Kennedy declined to join the plurality’s finding that no manageable standards exist, but adamantly refused to suggest what the proper standards might be. As I say in a commentary on Vieth in a forthcoming symposium in the Cornell Journal of Law and Public Policy, Kennedy’s opinion is like a black hole-it not only fails to shed light to guide lower courts, it affirmatively acts to prevent light from escaping.

Now that the Texas case is back in the Supreme Court following a well-crafted lower court opinion denying relief, the first noteworthy fact is that two members of the Vieth plurality, Chief Justice Rehnquist and Justice O’Connor, are no longer on the Court. It seems likely but by no means certain that their replacements, Chief Justice Roberts and Justice Alito, will take positions similar to theirs. In that case, Kennedy will again become the pivotal vote. His performance in Vieth was dismal enough, and he may be reluctant to repeat it. I suspect he will grab at an opportunity to avoid deciding the partisan gerrymandering question if he can. If not, he may want to crawl out of the black hole (the simile is getting strained here!). In which direction? That’s hard to say, but the most likely explanation for his posture in Vieth is that he subscribes to the anti-gerrymandering mythology and does not want to commit to keeping his hands off redistricting.

Some of the other commentators here discuss the perception of partisanship that may or may not ensue depending on how the Court rules. I agree with Professor Smith that serious criticism for partisanship is not likely to follow from the Texas case itself. But if the Court calls for intervention on political grounds, it commits the federal judiciary to an inherently partisan activity for the indefinite future. There are no compelling public interest principles, much less constitutional principles, governing the politics of redistricting, other than that plans should be the outcome of free negotiation and competition.

Space does not permit elaboration here on the many additional reasons why judicial intervention into partisan gerrymandering is a bad idea. Some of them are developed in Lowenstein & Steinberg, “The Quest for Legislative Districting in the Public Interest: Elusive or Illusory?” 33 UCLA Law Review 1(1985); the above-mentioned forthcoming article on Vieth; and the White Paper prepared by the No on 77 Committee in last year’s California campaign on Governor Schwarzenegger’s redistricting proposal. (I chaired that committee but did not write the White Paper.)

Mid-decade redistricting is a bad idea. One reason I believe the crusade against partisan gerrymandering is based on mythology is that it greatly exaggerates the potency of districting as a partisan tool. If districting plans could be updated every two years, the crusade would still be exaggerating the dangers but not nearly as much. Furthermore, there is some benefit in stable districts and the once-a-decade cycle represents a good balance between stability and the need to keep up with shifting population.

Some states prohibit redistricting more than once per decade in their constitutions. In California, our Supreme Court read such a restriction into the constitution early in the twentieth century and reaffirmed that position in Assembly v. Deukmejian, 180 Cal. Rptr. 297 (1982). The California rule prohibits more than one legislatively-drawn plan per decade. What Texas did would not violate the California rule, because the mid-decade plan replaced a judicially-drawn plan. Whether the rule should prohibit mid-decade replacement of judicially-drawn plans is fairly debatable and probably not very important. But a once-a-decade rule, in whichever form, is good policy.

That does not mean mid-decade districting is unconstitutional. I agree with the thrust of Professor Smith’s commentary here, that the Court should be applying the Constitution, not acting as a roving election law reform commission. The Constitution leaves districting procedures to the states, subject to congressional oversight in the case of districts for the House of Representatives. States that do not already have them should add mid-decade prohibitions to their constitutions. Congress should enact a ban on mid-decade changes in House districts.

By Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law

The Supreme Court’s coming back-to-back confrontation with campaign financing and legislative districting might appear to raise issues as far apart from each other as the sizes of Vermont and Texas , the two states involved. But the coincidence that the Court will hear the cases at nearly the same time brings into sharper relief a central, deeper issue that unites these particular problems – and that unites much else in thinking about the relationship between the Supreme Court and democracy. Before too quick a narrow focus on predicting outcomes and counting votes, we ought to think about the fundamental issues concerning democracy that lie at the heart of these cases.

All democracies face a critical problem: we know that those who temporarily hold power will always be tempted to make, change, or bend the rules to keep themselves – or their allies – in power. With his characteristic rhetorical flair, Justice Scalia has put it most concisely: “The first instinct of power is the retention of power.” (see last page of opinion) Democracies, old and new, have to come up with means to keep power from wrongly entrenching itself. Democracy requires that there be vibrant political competition, so that ideas are tested and citizens can hold those in power accountable through meaningful elections.

Campaign financing and the process of designing election districts – both in general and in the Vermont and Texas cases – can be used to suppress political competition. And in the United States today, elections to Congress, for example, have become less competitive than at any time in American history; elections to state legislatures are similarly becoming less competitive. In the United States , partisan political bodies – state legislatures – have the power to decide how elections should be financed and how election districts should be designed (the United States is the only Western democracy that designs election districts in this way, rather than through the commissions used everywhere else). Because partisan legislatures hold this power, the risk that they will manipulate the rules for these partisan purposes is ever present. And the question then becomes how constitutional law should respond to this threat, in general and in the Vermont and Texas cases.

In Vermont , those who challenge Vermont ‘s caps on election spending argue that this kind of campaign finance “reform” has the purpose and effect of making it more difficult to challenge incumbents. Indeed, some critics of campaign finance regulation appear to argue that virtually any system that puts caps on contributions or spending necessarily favors incumbents. Justice Scalia appears to believe that. Incumbents begin with numerous advantages; challengers need lots of money just to achieve enough name recognition to be credible; thus, these critics conclude, limits on spending or contributing necessarily benefit incumbents. And we should keep in mind that most campaign finance laws, like that in Vermont, are elected by incumbent legislators (some states, though, have adopted them through voter initiatives). But of course, the refusal of a legislature to enact campaign finance laws can also be a way that incumbents protect themselves against challenge too. The First Amendment is supposed to ensure robust political debate and competition. But how can we decide – and how can courts decide – whether any particular campaign finance law promotes or suppresses democratic competition? I will have more to say on that in later posts.

In Texas , the parties fight over whether the Republicans now in power took more, less, or the same advantage of the Democrats in designing election districts that the Democrats took of the Republicans in earlier decades when the Democrats were in control. But the biggest scandal of redistricting today is that the incumbents of both political parties have figured out, with computer assistance, how to design districts that eliminate any serious threat that incumbents will face a serious challenge. The Texas plan, arguably, does exactly that. Does the Constitution have anything to say about that? I believe that it does: the only power the states have to design congressional districts comes from the Elections Clause, Art. I. , sec. 4. I do not believe that clause gives state legislatures the power to design districts in a way that systematically insulates incumbents from all meaningful political competition. More on that in later posts, too.

Before leaving off, one general point: I agree with Brad Smith that Rick Hasen poses the legal questions in much too simplistic – and loaded – a way. The issue is not whether the Court should act as a “mighty Platonic guardian” or instead “act more modestly” and “carefully balance” the various interests in both cases. Framed that way, who could be against modesty and carefulness? And who would endorse rule by Platonic guardians, mighty or otherwise? These are just labels, attached after the fact to decisions one likes or dislikes; but they do no good in analyzing what the relationship between constitutional law and democracy ought to be. Based on the Constitution’s text, history, purposes, and institutional structures, the real question can only be, when is it appropriate for the Court to conclude that some effort of a State to structure or restructure the way democracy is practiced violates the Constitution – with respect to novel election financing systems, as in Vermont, or novel political practices, such as the mid-decade redistricting in Texas, or with respect to other issues at the border between constitutional law and the processes of democracy. The question is when the Court should intervene, for what reasons, in what contexts, under the Constitution. I will offer answers to that question, and turn to more specifics about both cases, in the next several days.

By Richard L. Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School

There’s no way to know how momentous the Supreme Court’s decisions in the Vermont campaign finance and Texas redistricting cases will be. After all, many of us thought that the Court’s earlier campaign finance case this term, Wisconsin Right to Life v. FEC, was going to be a pretty important case on the constitutional limits on corporate-funded speech during the election season. But the Court essentially punted, unanimously reversing the lower court and essentially remanding the case for further factfinding. So, too, with redistricting: the last time the Court got involved, in the 2004 Pennsylvania redistricting case, the Court divided 4-1-4, with Justice Kennedy, the swing voter in the case, essentially putting off for another day the question when a redistricting is so partisan as to be an unconstitutional gerrymander.

So the Court could potentially delay for later consideration big questions in the Vermont case about the constitutionality of spending limits (as the authors of the McCain-Feingold campaign finance law have urged) and possibly craft a narrow ruling in the Texas case applicable only to mid-decade redistricting. This might be an especially convenient thing for the Court to do, so as not to put the Roberts Court in a position to change doctrine too quickly and too radically.

But within the next decade, the Court is going to have to confront some major questions about its role in regulating politics. Since 2000, the Court’s decisions in the campaign finance area have signaled an unprecedented deference toward states (and Congress) that pass laws limiting the role of money in politics. And a different constellation of justices in the earlier partisan gerrymandering case took the position that the Court should keep its hands off districting decisions made by self-interested legislators. The pressure is now on the Court to move away from deference in both areas.

Opponents of the Vermont spending limits want more than a reaffirmation of the holding in Buckley v. Valeo striking down such limits as a violation of the First Amendment. They ultimately want a deregulationist approach to campaign finance, where any amount of money can be spent by anyone (including corporations and unions) or contributed directly to candidates for political purposes. Some deregulationists even contend the First Amendment gives them a right to engage in this spending anonymously.

Some of those asking the Court to strike down the Texas redistricting plan want the Court to go further than simply holding that the Texas redistricting is unconstitutional because it was enacted solely to benefit Republicans at the expense of Democrats. Rather, they want courts to take politics completely out of the districting process by reading the Constitution to bar states from drawing districts that are not sufficiently competitive.

The choices facing the Court, and particularly facing the new Justices on the Court, are stark. Should the Court act as group of mighty Platonic guardians who increasingly regulate the details of political competition for every state and local government in the U.S.? Or should the Court act more modestly, deferring to value judgments of states yet carefully balancing state interests against the rights of citizens to organize effectively for political action?

We may see some hints of the Court’s direction as these two cases are argued and decided. While I do not expect the Court to exit from the political thicket any time soon, the nature of the Court’s intrusion is likely to change, especially with the replacement of perennial swing Justice O’Connor with Justice Alito.

By Bradley A. Smith
Professor of Law
Capital University School of Law

Professor Hasen suggests that the question for the Court is whether to “act as a group of mighty platonic guardians who increasingly regulate the details of political competition for every state and local government in the U.S.,” or to, “act more modestly, deferring to value judgments of states yet carefully balancing state interests against the rights of citizens to organize effectively for political action.” Professor Foley expresses concern that the Court decide the cases in such a way that one party is not perceived to have lost both. I will confess, neither of those issues much concerns me.

Professor Hasen’s suggestion that the Court should “act more modestly” by “deferring” to the states echoes Justice Breyer’s recent book, “Active Liberty.” But Justice Breyer’s “modesty” is highly selective – for example, he shows no qualms at all about intervening in state decisions to regulate abortion, see e.g. Stenberg v. Carhart, 530 U.S. 914 (2000) (opinion by Breyer, J.) or in micro-managing the standards for assisted suicide statutes. See Washington v. Glucksberg, 521 U.S. 702, 789-92 (1997) (Breyer, J., concurring in the judgment) public religious displays, or innovative public education policies (see Active Liberty at 120-124). Similarly, Professor Hasen has supported Court action to strike down state election laws limiting state “fusion” tickets (an issue on which we agree, but one which I find far less convincing than other statutes Professor Hasen would have the Court be “modest” about.)

So one person’s “careful balancing,” it seems, is another’s “mighty platonic guardian” activism. Talking about “modesty” or “activism” gets us nowhere – if one believes that the Constitution restrains judges at all, then the failure to strike down an unconstitutional statute is as much a form of “activism” as striking down a constitutional statute. The difficulty in LULAC and Randall is determining constitutionality, not deciding whether to be “platonic” or “modest.” To me, but for some troublesome precedents – and I believe in respect for precedent – neither case would pose particularly difficult constitutional issues. But this is not to say that my view will carry the day on either case, or that there aren’t many very smart people who strongly disagree with me on both the proper results and the degree of difficulty.

The task for the Court then, is more traditional than Professor Hasen would have it – to decide these two cases in line with the Justices’ understanding of the Constitution. However that is done (if it is done) I am much less concerned about the partisan fallout of the cases than is Professor Foley.

The immediate partisan consequences of LULAC v. Perry will be obvious, and the losing side is sure to carp that the decision is partisan. But that carping will ring hollow. If the Court rules for the plaintiffs/appellants (i.e. favors the Democrats) the decisive votes will have to come from one or more of three conservative Republicans: Justices Anthony Kennedy and Samuel Alito, and Chief Justice John Roberts. If the Court rejects the Democratic challenge, it will be consistent with the position it has taken since the first partisan gerrymandering cases were brought in the 1960s. In either case, it will be hard to make cries of “partisanship” stick. Moreover, there is no long history of consistent Democratic opposition to partisan gerrymandering, or of Republican support for the practice. Rather, the two parties’ positions have historically been determined by whose ox has been gored. A decision for the state will be seen as business as usual, and not something that puts Democrats at a permanent disadvantage generally. A decision striking down the districting will not please Republicans, but will be accepted by all but the most partisan fringe of the GOP, with the party’s national majorities as an added salve.

Moving to Randall, it is true that historically most (though not all) liberals, and therefore most (but not all) Democrats have favored campaign finance restrictions, primarily due to ideology but assuredly in part because of explicit or implicit assumptions that a less regulated system of private funding of elections benefits conservatives. Correspondingly, most, (though not all) conservatives, and therefore most (but not all) Republicans have taken the opposite view, again largely due to ideology, but surely in some cases because of assumptions regarding the partisan effects of regulation. Still, it is not entirely clear who benefits, and indeed at the present time the Republican establishment in Washington is promoting campaign finance regulation as a way to gain a partisan advantage over Democrats.

In the 30 years beginning with Buckley v. Valeo, the Court has repeatedly ruled on campaign finance, yet its decisions have not been criticized for partisanship, including McConnell v FEC, upholding the McCain-Feingold law just two terms ago. It seems relatively clear that ideology, not partisanship, is the driving force behind what shows up as a partisan split. And as it is not entirely clear whose partisans benefit, I don’t see reaction to the decision being framed in partisan terms, even if it may break along partisan lines than correspond to ideology.

Thus, the only scenario I could see that might create the evils of which Professor Foley warns would be if the Court chose to strike down Texas redistricting, and to uphold the Vermont spending limits. In that case the Court would be seen not merely as siding with Democrats in each, but as going against well established precedent to do so. That combination seems to me a highly unlikely result.