The next few days of commentary on the Arizona redistricting decision will include the usual debate about which side had the better of the “legal argument.” And, in truth, both the majority opinion and the chief (Roberts) dissent can be defended. Each is effectively drawn, making the most of the materials available to it. Each also takes the usual liberties with the construction of precedent and the standards by which particular points—an example being the majority’s reliance on 2 U.S.C. §2(a)(c)—are deemed relevant. More interesting is the way that the majority weighs the reform objective. The majority in the Arizona case adheres to a model familiar in political reform arguments, within and outside the Court.
For this majority, the constitutional question cannot be considered apart from the reform objective served by the initiative creating the Independent Redistricting Commission. The “people” are seen to be taking urgent steps to protect against officeholder self-interestedness. So, as Justice Thomas points out in dissent, the Court here lauds the exercise of direct democracy, which at other times is given the back of its hand. The reason for the difference is simple: the objective that, in this case, the tools of direct democracy have been wielded to bring about.
For all the study expended on public corruption and possible measures to control it, few take seriously or pay much attention to the “ethics” rules that Congress makes for itself. Something interesting is going on here. On the one hand, supporters of campaign finance reform are quick to defend Congress’ legislative handiwork over the years. Defenders of McCain-Feingold deny that it was infected with incumbent self-interest. Upholding the new law against constitutional challenge, the Court in McConnell v. FEC even situated it within a long history of Congressional steps to combat corruption, characterized as “careful” and “cautious” and deserving of deference. 540 U.S. 93, 117 (2010)[citations omitted]. Yet when Members prescribe rules to govern their conduct in dealings with supporters or donors, the applause is thin and it is rare that legislators get even the benefit of the doubt.
It is possible that an important part of the story has been missed, or underplayed, and that the Supreme Court may have the opportunity to rectify, if only indirectly, the imbalance.
Assume general agreement that the Federal Election Commission is putting on a poor show nowadays. The Commissioners are snarling at one another, tweeting out their grievances, withholding simple courtesies, and just snappish.
Now Brad Smith rightly counsels that we not overstate the significance of this. It may go too far to say that the FEC is the most dysfunctional agency or, as one Commissioner has suggested, “worse than dysfunctional.” We are seeing mainly a case of frayed nerves and personality conflicts among administrators who are under constant attack for being unable to agree on difficult issues. The Supreme Court disagrees on those same issues, and the Justices can get testy, but they are saved from the charge of “dysfunction” because there are nine, not eight, Justices, and they can get to 5-4 and issue decisions.
But the open, increasingly personal squabbling, while uncomfortable to watch, is not all there is to the story. It has led a form of “acting out” by Commissioners in the forms of procedural shenanigans, furtive and open uses of the press to score rhetorical points, and questionable characterizations of the issues before them (such as the absurd debate yesterday over whether some Commissioners were denying that others were people). The personal and ideological conflicts have come to be expressed in administrative behaviors that some may find difficult to reconcile with a core understanding of the Commissioners’ official responsibilities.
George Will looks at Super PACs and sees the consequences of "reform": it's a mess, he writes, the result of pressures for a “thoroughly regulated politics” that drives political actors to evade foolish rules. The Constitution requires “unregulated politics”: recent reform experience shows that any other course is sure to end in a bad place. The choice he sees is between thoroughly regulated campaign finance, which is untenable, or none at all.
An alternative account of unsatisfactory reform experience would focus on the type of regulatory program that has dominated the policy debate. The FEC is somehow expected to regulate campaign finance as other agencies regulate food or drugs, or fair commercial practice, and the FEC best equipped for the job would be re-structured to take the politics out of its composition and operation. Underlying all of this is a belief that the right rules enforced by the right people, and repeatedly revised in the light of experience, will bring errant political behavior under control and end cheating. By this definition the “right” rule is one that attacks a questionable practice at its source, however complicated the rule and however challenging it will be to enforce it.
- “Desperate” at the FEC, Part II: The Risks of Unintended Consequences
- “Desperate” at the FEC
- Lobbyists and Campaign Finance: The “Bundling” Question
- The Supreme Court and the “Constituent”
- Super PACs: Causes and Effects
- More Conflict at the FEC: The Question of Partisanship and the Problem of Finger-Pointing
- The FEC, the Big Issues, and Getting Right a Few Basics–Like Disclosure
- The State of the Debate
- Holding Down the Fort or Tearing it down: Law Reform Projects at the FEC
- The Meaning of “Paralysis,” the Meaning of Fines, and the Meaning of McGahn