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.

Of course, more generally, direct democracy as a tool has proven to be powerful in the hands of those with money and savvy, and the results cannot be routinely characterized as a victory for the popular will.  In other contexts, the Court has understood this, and these factors—superior resources—account in part for the success of the Arizona initiative.  But the majority can quell any doubt it might have in the matter because it is taken with the campaign’s objective—a defense against abuse of the redistricting process.

Just as the Court stands behind the utilization of direct democracy for this purpose, it adopts a skeptical view of officeholder behavior.   The case involves the full displacement of legislative authority over redistricting, a point that the Roberts dissent emphasizes.  The Court has been notably selective in this judgment of how much trust can be extended to politicians.  Sometimes, as in McConnell, it is impressed with their judiciousness in regulating campaign finance in the larger public interest and not their own.  Then, in the dismissal of the legislative record assembled in support of the reauthorization of The Voting Rights Act, we can find a suggestion like Justice Scalia’s that our suspicion of politicians should be heightened when they unite across party lines and achieve unanimity.  In the Arizona case, the attitude is more Shelby County than McConnell, and the line-up of Justices is quite different, but it depends, it seems, on how reliably the politicians will do what is expected of them.  It depends, in short, on views of the reform objective.

Then there is the powerful attraction of “independent” and expert alternatives to the messy business of working issues out in the political process. The Arizona Independent Redistricting Commission functions outside that process, and the Commission members who are selected can be removed only with difficulty by the Governor, for gross misconduct, substantial neglect of duty, or inability to discharge the duties of office, subject to concurrence by two thirds of the Legislature.  Legislative leaders have a hand in picking some Commission members, but only from a list compiled by the Commission on Appellate Court Appointments.  The Redistricting Commission’s judgments are not subject to being overturned by popular referenda.  The reform here is a judgment by the “people” to depoliticize redistricting decisions through a full divestment of legislative authority and its delegation to a politically insulated independent body.

We see the same structure of reform thought in other areas.  Faced with chronic disagreement about the objectives and modes of political reform, reform programs can be built around strenuous claims of public support, reflexive distrust of legislative self-interest, and a resort to mechanisms that would provide for independent, depoliticized decision-making. Campaign finance reformers, for example, call for the President to nominate members of the Federal Election Commission from a list of recommendations made by a bi-partisan list of independent, “distinguished” individuals and for the Commissioners to rely on professional staff judgment in deciding cases.  In election administration, there have been calls for depoliticizing the field in part by emphasizing professionalism in appointments and looking to other reform models in which the chief election officers of the state are not elected officials with party allegiances, or defer to those who are not.  In Congressional ethics, similar objectives were pursued through the establishment of an independent Office of Congressional Ethics, run by private citizens, that would limit the risks of self-interestedness in the House’s administration of its disciplinary rules.

Not all proposals shaped by this vision of reform are deficient in merit or should be somehow off the table for discussion. For example, much can and should be said for professionalism in the administration of elections.   But there are always costs to be accounted for.  Rerouting decisions around elected bodies, in the name of “the people”, can result in the dilution of popular control and the erosion in the role and scope of political action.  Recently a collection of scholars and commentators labeled ““political realists” have called attention to a similar issue– the toll modern reforms may have taken on the power of much-maligned political parties and their leadership to engage in bargaining and compromise in the service of effective governance.

This is all something to consider after the historic Court decision this week on gay marriage—a result inconceivable without the foundation established beforehand by creative, persistent, impassioned political action. And in the course of which it was difficult to find progressives cheering for the uses of “direct democracy.

Leave a Reply