Political Self-Dealing and Constitutional Innovation

July 7, 2015
posted by Bob Bauer

Strong critics of gerrymandering and other examples of political self-dealing can count an attentive audience—politicians using power to keep power, such as in drawing lines or raising money. There is no denying the legitimacy of the concern. But sometimes the attack can be taken up with zeal, and the proposed solution takes the form of aggressive constitutional innovation. The argument is made, and the Supreme Court is called on to agree, that regular constitutional process and ordinary politics must yield to extraordinary mechanisms installed in their place.

In the Arizona case, the Court ruled that legislatures could be ousted by initiative from the redistricting process  Arizona did not impose checks on legislative self-dealing; it relieved legislators of any role altogether. The Court had to know that it was sanctioning the substitution of one form of politics for another– the politics of direct democracy for that of the legislative process. To accomplish the flip, it had to deify direct democracy, by referring to it as a conduit for the expression of the popular will, and to render so harsh a judgment on legislatures and their anti-democratic ways that legislators were disqualified from further participation in drawing district lines.

In choosing this direction, the Court appears to have bought into what John Sides and Eric McGhee refer to as the “zombie myths” about the grossly anti-competitive effects of this mode of political self-dealing. Because it was redressing what it takes to be a major evil, the majority could sanction drastic measures on an enterprising construction of the constitutional text, concluding that “legislature” meant no role for the legislature. In sum, the Court treated the case before it as presenting a major dysfunction of governing institutions, justifying an extraordinary response, and it acted accordingly.

Answering the immediate question, the Court built little in the way of a durable, coherent framework for understanding when problems of self-dealing in the political process should be solved through the ordinary-course constitutional and political processes. It seems not enough for the Court to buy into the most heated claims about redistricting—“politicians selecting the voters and not the other way around”, etc.–and on that basis to strive to” save democracy” through the ratification of extraordinary means, such as the Independent Commissions unaccountable to the legislature or even popular referendum.

This instinct to answer crisis with constitutional innovation has happened before, of course, with the post-Watergate enactment of the statute authorizing the appointment of Independent Counsel. The Executive Branch was deemed incapable of policing itself, and Congress devised a prosecutorial office with attenuated accountability to the Executive Branch, its leadership chosen and mainly supervised by the judiciary. It was, like the Arizona IRC, independent. The Supreme Court went along with this, on an 8-1 vote, but the lone dissent made a useful point:

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.

Morrison v. Olson, 487 U.S. 654, 710-711 (Scalia, J. dissenting) [citations omitted]

Another sensitive point raised by Arizona and other cases involving political self-dealing is the Court’s apparent disinclination to put much stock in what legislators argue on their own behalf as the constitutional latitude required for them to function in their assigned roles. Right after the Court decided Arizona, it also disposed of—by refusing to hear– the Speech and Debate issues faced by Congressman Renzi, convicted of crimes related to a federal-private land exchange. The House, on a bi-partisan basis, through its Legal Advisory Group, had asked the Court to take the case. Its position was not identical to Renzi’s: the House was concerned that Speech and Debate protections be extended to documents and materials generated in the course of legislative activity. And the concern was keen. The House advised the Court that “it is difficult to imagine a construction of the Speech or Debate Clause that would chill, disrupt and burden Congress’ legislative, oversight and investigative functions to a greater extent.”

No matter–the Court declined to hear the case. Why? The Court was apparently unsympathetic to Renzi and claims such as his that cloaked the defense of corrupt self-dealing in high constitutional principle.

The doctrinal fine points are open to be debate, but it is hard to escape the impression that Court believes readily in the failures of the democratic process and the part played in this breakdown by self-interested legislators.   And it won’t overlook wrongdoing or allow the legislator’s constitutional defenses–perhaps also judged to be tainted by self-interest?–to get in the way.

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