The Supreme Court and the “Constituent”

June 2, 2015
posted by Bob Bauer

The Supreme Court has effectively decided to consider the question of who qualifies as the constituent of a legislator, and, as Joey Fishkin has pointed out, it got into this question from a different perspective in its most recent campaign finance decision, McCutcheon.  There the Court included in that category donors, including out-of-jurisdiction donors.  Is it possible that this Court would conclude that a donor is a constituent but that for purposes of the constitutional question presented in Evenwel , a resident under the age of 18 or a noncitizen is not?    Fishkin writes: “[W]ho counts as a constituent?  That’s the question, long latent, that the Court has decided to decide in Evenwel.”

This question can be attacked by the Court’s application of High Theory, or the resolution can be left with…. the politicians, entrusted with the judgment of how to define their representative relationships.  This is one way to reconcile the McCutcheon decision with the right decision in Evenwell: the Court should not jump in and shape that choice by insisting on the one definition of constituency—eligible voters.  To the extent that the Constitution does not dictate the answer, the Justices would be unwise to do so.

In McCutcheon, the Court referred repeatedly to donors as constituents who were free to enlist the gratitude of officeholders for their support.  This was not corruption, the Court found: it was politics, and even more, it was fundamental to our proper conception of what a representative democracy must allow for.  The Court stressed that there was nothing troubling about this “responsiveness” of politician to supporter:

Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.

134 S. Ct. 1434, 1462.

On this reading of representation, the competent politician must have a feel for the boundaries of responsiveness and is accountable for it.  She must be thoughtful (and skilled) in defining the community of those to whom she owes this attentiveness—the “constituent.”   Included are the voters, the contributors who may but not always overlap with the voters, the issue advocates wherever they may be located whose cause on policy she has taken up—and, presumably, those ineligible to vote.   Her business as a politician is complicated.  The choice she makes of constituents—the determination of where her obligation of responsiveness lies– is essential to the work she does in winning re-election and achieving political programs.  As Hanna Pitkin wrote in her Concept of Representation (1967), the politician does not stand in a simple relation to voters, but:

[H]e is a professional politician in a framework of political institutions, a member of a political party who wants to get reelected, and a member of the legislature along with other representatives. He must be sensitive to his political party ( both local and national) and to various public and private groups and interests.

Id. at 220.

The question of who counts as a constituent is the key one for the politician to answer in establishing and managing her office.  The plaintiffs in Evenwel, ostensibly worrying about protecting “one person, one vote,” have their own answer—equating constituencies with eligible voters—and they wish the Court to pronounce it a constitutional requirement.

But the McCutcheon Court seemed to say that constituencies come in various forms.  In that case, the politician’s responsiveness to a donor’s “support” was “key to the very concept of self-governance.”  Whether the support provided was a vote, or the donor was a voter, was not part of the analysis.  Here was a view of politics and the representative function that suggests that the complexities of the constituency relationship are best addressed in the political process.   It suggests that Justices would do well to recall that the decision is one “with which we have been shown no constitutionally founded reason to interfere.”   Burns v., Richardson, 384 U.S. 73, 92 (1966).


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