The federalist safeguards of politics.
INTRODUCTION I. REPUBLICANISM, PERFECTIONISM, AND PLURALISM A. Republican Pluralism B. Republican Perfectionism II. The Nationalization of State Politics A. Congressional Nationalization B. Executive Nationalization C. Judicial Nationalization III. THE DISTINCTIVENESS OF STATE REPUBLICANISMS A. Legal Distinctions 1. Election Administration 2. Constituencies and Districting 3. Parties 4. Campaign Finance 5. Other Factors B. Rules, Regimes, and Systems of Republicanism C. The Persistence of State Political Cultures 1. Participation and Voting Turnout 2. Equality and Campaign Finance 3. Competition and Contested Races 4. Representation and Policy Alignment IV. The Federalist Safeguards of Politics A. State Means B. Republican Ends 1. Competition 2. Equality 3. Representation 4. Participation CONCLUSION
"The United States shall guarantee to every State in this Union a Republican Form of Government ..." (1) These words expound the fundamental federal constitutional safeguard of representative democracy in American states. Conventional wisdom portrays this safeguard for a "Republican Form of Government" as irrelevant to contemporary constitutional law and politics because the Supreme Court--and Congress, for that matter--will not enforce the Guarantee Clause. (2) Yet the real problem with the Guarantee Clause is not that the United States enforces it too little, but that it enforces it too much. The Clause's political theoretical contents have spilled into other enforceable constitutional guarantees. There is no shortage of theories proffered to perfect various conceptions of republicanism with the continuing expectation of federal, usually judicial, enforcement. (3) The Supreme Court, and to a lesser extent the national political branches, have taken the law of democracy beyond the basic rights of political equality expressed elsewhere in the Constitution into the deeply contested realm of republican theory: accountability and participation, majority rule and minority representation, deliberation and responsiveness, equality and liberty of influence, legitimacy and self-expression, and competition and stability. The interaction of these competing perfectionist conceptions of republicanism has led to the incoherence of the constitutional law of politics in the States. Federal efforts have produced a system in which the States, the Union, and the Republican Form of Government would be better served by letting states do more, and the United States less, to fulfill the guarantee.
There is an alternative pluralist conception of the republican guarantee. The Supreme Court once conceded, even while it opened the door to the one-person one-vote principle, "the lack of criteria by which a court could determine which form of government was republican." (4) Despite this concession, however, questions about the Republican Form of Government pervade federal supervision of state election law by the Court and its coordinate branches. The Court's subsequent interpretation of the First and Fourteenth Amendments, and of our federalism, masked underlying debates about distinct conceptions of republicanism. Meanwhile the People, through the Constitution itself, refined the republican guarantee by extending the right to vote to all races, (5) women, (6) the poor, (7) young adults, (8) and the People directly in electing their Senators. (9) Congress further extended the guarantee through legislation enforcing these amendments, thereby enabling the President to implement the guarantee in the States. (10) The Guarantee Clause itself, and with it any distinction between the States and the Union in the constitutional regulation of politics, faded from view.
The submergence of the broad republican guarantee by these narrower constitutional commitments helped the federal government improve the forms of government in the States. For a time, a federal consensus on basic political equality took the United States several steps toward a more perfect union. The emergence of primaries eventually engaged more voters in the process of party nominations. State and federal campaign finance regulation brought transparency and some measure of equality to campaigns. In the first few decades after passage of the Voting Rights Act, the Constitution empowered, the Congress enacted, the Executive enforced, and the Court upheld a powerful right of access to the franchise. (11) This consensus, however, has long since ended. As the United States nears the substantial fulfillment of basic political equality in the Second Reconstruction, the current political stalemate among the federal legislative, executive, and judicial branches produces a one-size-fits-all republican system that is as dysfunctional as it is dominant.
After the Court in Bush v. Gore brought to light the "common, if heretofore unnoticed, phenomenon" of serious problems in local administration of federal elections, (12) the President still conceded more than a decade later, "[W]e have to fix that." (13) In Citizens United, the Court prematurely heralded "[a] campaign finance system that pairs corporate independent expenditures with effective disclosure" after invalidating restrictions on corporate campaign expenditures. (14) But a gridlocked Federal Election Commission and Congress have repeatedly failed to take executive or legislative action necessary to implement such a system. The Court suggested in Shelby County v. Holder, after invalidating the Voting Rights Act's central enforcement mechanism, that "Congress may draft another formula based on current conditions" to address discriminatory voting practices, (15) a suggestion unlikely to be taken up in the foreseeable future. The one recent case in which the Court acknowledged dysfunction in federal election regulation, the inaction of the understaffed Election Assistance Commission in Arizona v. Inter Tribal Council, (16) laid bare fundamental yet vague divisions among the Justices about the scope of the federal government's power to structure elections in the states. (17) Even the Guarantee Clause itself resurfaced in a challenge to a Colorado tax limit initiative. (18) The Court's decision in Arizona State Legislature v. Arizona Independent Redistricting Commission undermined the plaintiffs' standing in the Colorado case, but not before dropping a provocative footnote that "[p]erhaps not all claims under the Guarantee Clause present nonjusticiable political questions." (19)
This Article argues that states do and should play as important a role as the federal government in articulating and implementing the law governing state political processes, or in formal terms, their republican forms of government. (20) The argument has four parts. Part I introduces the basic meaning of the guarantee and its amendment. Beyond a consensus that holds our republicanism to require basic political equality, various perfectionist conceptions of a republican form of government diverge, giving way to the essential pluralism of republican governments in a federal system. Part II explains how the Supreme Court, Congress, and the Executive are now unable to articulate, let alone implement, a workable national consensus on any perfectionist republicanism beyond a thin conception of those basic rights to political equality. Part III describes the states as the source of persistent pluralism in their republican forms of government, as both legal systems and political cultures that produce and are sustained by those systems. Part IV argues that these distinctions in how states articulate and implement their own plural versions of republicanism are crucial to efforts toward reforming, let alone perfecting, republicanism at the national level. Given the unsettled visions of republicanism at the national level and the structural autonomy the states must retain at the core of our federal system, a plurality of views on republicanism among the states is not only durable but desirable.
I. REPUBLICANISM, PLURALISM, AND PERFECTIONISM
In defending the Constitution as "strictly republican," James Madison argued that it established a composition of both a "federal form [of government], which regards the Union as a Confederacy of sovereign states[,]" and "a national government, which regards the Union as a consolidation of the States." (21) We might recognize the same distinction in the Constitution's guarantee of republicanism in the States. The Guarantee Clause itself, alongside other direct constitutional guarantees of basic political equality such as the extension of voting rights, contains both federal and national modes of implementing republicanism.
The federal mode establishes the necessary terms for participating in the confederation, such as the Guarantee Clause's prohibition of state aristocracies that corrupt neighboring states, or the Fifteenth Amendment's prohibition on race-based discrimination in voting that undermines the reconstructed Union. (22) These provisions also contain important nationalizing elements in terms of setting a floor of basic political equality among individual citizens (no monarchs) and between classes of citizens (no abridgement of the vote because of race) within the States. Such rules unify the nation under a certain broad conception of republicanism even as they preserve the confederation of autonomous States. For example, in addition to the Guarantee Clause, the Constitution empowers the States to prescribe the time, place, and manner of federal elections subject to congressional alteration. (23) Such provisions serve as the Union's shield to protect the federal republic against dangerous or uncooperative non-republican state governments. Primarily, the Constitution directly governs state political structures as a federal check against state departures from republicanism that might jeopardize the national government. Outside of such threats, the Constitution reserves to the States a sphere of autonomy in formulating republicanism. (24)
This federal conception of the republican guarantee is pluralist. Beyond the consensus of basic political equality, and consistent with the security of the Union, pluralist republicanism allows states to adapt their forms of government to their own circumstances. These distinct republican forms mutually reinforce and are reinforced by distinct political cultures arising in each state. An alternative national conception of the republican guarantee, one that exceeds the scope necessary for basic political equality and the security of the union, might be called perfectionist. Rather than take the guarantee as a shield, perfectionist republicanism takes it as a sword for the Union to attack state conceptions of republicanism that might differ from that of the Union, or those the Union's officers (legislative, executive, and judicial) might think ought to be imposed on the States nationally. It nationalizes state politics by dissolving distinctions between the forms of government at the federal and state levels. (25) In its most pronounced form, republican perfectionism reads the Guarantee Clause to require the States to confer positive rights that the Constitution does not require from the federal government.
A. Republican Pluralism
Republican pluralism recognizes that there is no definitive conception of a "Republican Form of Government." In The Federalist, the guarantee's co-drafter, Madison, described his view of a republic as simply "a government in which the scheme of representation takes place." (26) As Madison later suggests, this is not to distinguish a republic from what is popularly termed a democracy, a distinction that Akhil Amar notes "dissolves etymologically, with the res publica being a rough Latin equivalent of the Greek demos-kratia--rule by the demos, or people." (27) Rather, as the guarantee's neighboring protections "against Invasion" and "against domestic Violence" (28) suggest, one of its purposes is "to defend the system against aristocratic or monarchical innovations," particularly factions that may "possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers." (29) Within this federally enforced safety, the States may continue "the existing republican forms," or "choose to substitute other republican forms" so long as "they shall not exchange republican for anti-republican Constitutions." (30) Outside of the scope of the guarantee, the States would retain electoral autonomy, as "the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members." (31)
The Federalist should be read cautiously as the political advocacy it was, particularly when it promises to leave the States and their governments alone while seeking their joinder in the Union. Yet Robert Natelson's thorough study of the original understanding of the Guarantee Clause also concludes that the Constitution provided little more guidance than to say, "With respect to republicanism, choose the form you wish, so long as your governments are controlled by your citizens, have no kings (or, by another clause, no titled nobility), and honor the rule of law." (32) Similarly, Akhil Amar finds in both its framing and its practice, "The central meaning of Republican Government revolved tightly around popular sovereignty, majority rule, and the people's right to alter or abolish." (33) There is "near-consensus," observes Jacob Heller, that "republican governments rule (1) by the majority (and not a monarch), (2) through elected representatives, [and] (3) in separate, coequal branches." (34) This much of the Guarantee Clause is clear and even justiciable in those fortunately rare instances where these basic elements might be lacking. (35)
The republicanism of the Guarantee Clause is therefore more practical than theoretical, more structural than rights-based, and focused on a self-sustaining polity, not political perfectionism. As Cass Sunstein explains, republicanism is an effort to realize "a virtuous politics ... without indulging unrealistic assumptions about human nature." (36) The possibility of such a politics is modeled in the United States Constitution's "complex set of precommitment strategies, through which the citizenry creates institutional arrangements to protect against political self-interest, factionalism, failures in representation, myopia, and other predictable problems in democratic governance." (37) As the broad text of the clause suggests, the diversity of the ratifying states' forms of government confirms that the federal model was only one model, specially adapted to its federal functions, and not a casting mold to which the States would need to conform. (38) The nation of state republicanisms under the Guarantee Clause is structuralist all the way down.
This is not to say that republicanism is indeterminate. Congress's authoritative construction of the Guarantee Clause played a critical role in conditioning the admission and readmission of states during Reconstruction on suffrage for freed slaves. (39) Since then, other constitutional provisions have refined the guarantee, expressly extending it to include all races, (40) women, (41) the poor, (42) young adults, (43) and the People directly in choosing Senators. (44) The Supreme Court supplemented these textual constitutional guarantees with long-established political rights derived from the First and Fourteenth Amendments, including the right to speak, associate, and petition on political issues, and a basic right to have one's vote count equally. Richard Hasen identifies these as a concept of essential political rights, and his conception distinguishes these core equality principles as "basic political equality rights [that] are absolutely essential for any government to function as a democracy." (45) Together with the republican guarantee, these rights set a floor of basic political equality, above which states may adapt their own form of government consistent with their own conceptions of political equality and other republican values. (46)
Beyond this consensus of basic political equality, republicanism is an essentially contested concept. (47) No comprehensive conception of republicanism can exist outside of how any particular political community defines it at a particular time in its development. (48) At a national level, however, no such conception holds. At least as long as scholars have recognized election law as a distinct field, they have debated the conflicting values republicanism is supposed to embody: accountability and participation, majority rule and minority representation, deliberation and responsiveness, equality and liberty of influence, legitimacy and self-expression, competition and stability, and so on. (49) Standard accounts trace at least three distinct and conflicting republicanisms--civic republicanism, libertarianism, and pluralism--to Madison himself. What distinguishes the republican pluralism described here from other perfectionist forms of republicanism in election law is the political community that defines it. While many accounts of election law look to judges (usually federal judges) to weigh and resolve these conflicting republican values in state politics, (50) republican pluralism acknowledges the guarantee is a (one of many chosen by states), not the (one chosen by the federal government), republican form of government in the States.
Republican pluralism is pluralist in the ordinary sense that a republican form of government may exist in many distinct forms consistent with republicanism. It is also pluralist in the theoretical sense of embracing pluralism in politics among the States. These republicanisms are politically contested. Once one form satisfies the broad constitutional requirements of the Guarantee Clause and basic political equality, there is no criterion outside of politics itself to assess its desirability. In each state, that politics is partly a function of the republicanism it sustains. It is this latter theoretical sense that Bruce Cain emphasizes in proposing "reform pluralism," meaning first "a more explicitly pluralist political reform agenda" that takes a realistic view of political contestation. (51) Second, however, he also recommends "a blended approach" as "a kind of metapluralist principle" that recognizes the quantitatively plural distinctions a qualitatively pluralist politics creates when iterated across many governing institutions, including states. (52) This Article prioritizes the quantitative pluralism (or "metapluralism") reflected in the diversity of state republicanism forms and is more agnostic about the priority of qualitative pluralism among the possible republican values any one state realizes.
B. Republican Perfectionism
Compared with republican pluralism, republican perfectionism offers far more detailed (and contestable) constructions of the guarantee. (53) The sheer diversity of these conceptions reflects deep disagreements about the constitutional regulation of politics in general and the relationship of judicial review to that task in particular. The Guarantee Clause is not indeterminate, and Richard Hasen may put it too strongly when he says, "'Republicanism' is an empty vessel to be filled by whatever individual right the particular writer desires the courts to enforce." (54) But as Hasen suggests, any reading of the guarantee as a vessel for nationalizing individual civil rights (beyond individual political rights) misses its basic structural function as the Union's shield and not a sword. The history of the guarantee provides the backdrop to contemporary debates about republicanism that take place under more contested clauses.
In the past half-century, the argument for using the guarantee as the Union's sword against the States begins with Arthur Bonfield's hope expressed on the eve of Baker v. Carr that "the specific substance of republican government will be dictated by contemporary values." (55) His argument for broader political rights guaranteed as a form of republican government extended from abolition of the poll tax, to universal free public education, and then to "[e]qual access for all to housing, employment, education, transportation and numerous other things...." (56) This imperial conception of republicanism, Bonfield conceded, "might interfere a great deal in the internal governance of the states." (57) More recently, Erwin Chemerinsky argues that the Guarantee Clause should be an additional repository for federal courts to define and protect a similarly unenumerated, if not equally ambitious, set of "basic individual rights." (58) Thomas Berg proposes more modest national modifications of state republicanism under the Guarantee Clause. (59) Berg sees national republicanism as an avenue to enhance democratic deliberation in the states by limiting delegation of the legislative process and by strengthening rational basis review of legislative results. (60) However, these proposals are still quite remote from the core concerns of the clause.
Some readings of the clause do use the guarantee less as a sword against the States and more as a shield to protect the Union, as well as particular conceptions of republicanism in the States. Adam Kurland, for example, argues that the clause provides a positive grant of power supporting federal anticorruption legislation directed at state and local officials that is broader than what the Commerce Clause may allow. (61) Unlike other theories of republicanism, he is careful not to read too much into the guarantee beyond its provision of a rational basis for such legislation. (62) In view of recent and not-so-recent history, criminalizing corruption at the state and local level may well be rationally related to preserving majority rule in, and protecting the Union from, corrupt state and local officials. (63)
Conversely, Deborah Jones Merritt argues for using the Guarantee Clause as a shield for state autonomy against encroachments on federalism values such as direct federal regulation of state governments. (64) Indeed, this latter interpretation is one of the few proposals to gain at least limited traction in the Supreme Court. In New York v. United States, Justice O'Connor's opinion for the Court cited Merritt in partial support of an anti-commandeering principle of federalism that ensures "state government officials remain accountable to the local electorate." (65) This conception of the Guarantee Clause instantiates a particular form of limited federal power beyond Article I enumerations and the Tenth Amendment canon of construction, possibly as a way to rework intergovernmental immunities. (66) Yet these claims simply hand the inapt sword of republicanism from the Union to the States. Transforming the Guarantee Clause from a multipurpose tool for nationalizing rights into a multipurpose tool for decentralizing powers still misconceives the clause as a sword, not a shield.
Merritt also makes a more structurally grounded argument concerning the Guarantee Clause's relationship to other constitutional provisions. She recognizes that the primary federal constitutional constraints on the States' political structures are not found in the Guarantee Clause, but in other more direct requirements of basic political equality such as the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. (67) Merritt argues that beyond these specific requirements, "in the guarantee clause the United States promises to secure each of the states the autonomy necessary to maintain a republican form of government." (68) According to Merritt, a republican government "is responsible to its voters rather than to any outside agency." (69) Therefore, "[i]n order to ensure that state and local governments remain responsive to their constituents, those citizens must have the power to choose the governmental forms that work best for them." (70) In other words, the conception of the Guarantee Clause as a national shield to protect the Union's republicanism includes its guarantee that it will not be used as a sword to attack States' republicanisms.
Jacob Heller draws a similar distinction between "republicanism top-down and bottom-up," (71) though he has greater concerns about the state of republicanism in the States. Arguably dysfunctional state governments such as California's lead him to several "top-down" uses of the Guarantee Clause as a sword. He would construe it to empower federal anticorruption legislation (72) (following Adam Kurland, (73) to require one-person one-vote apportionment (74) (following Michael McConnell,) (75) and to support federal preclearance requirements for state election law changes under [section] 5 of the Voting Rights Act (76) following Richard Hasen). (77) Most ambitiously, Heller reads the clause to prohibit "legislative power grabs" that undermine the States' administrative agencies (78) and "ballot-box budgeting" through California's spending initiatives. (79)
The first three applications qualify as core uses of the clause as a "shield" to protect the Union against non-republican forms of corrupt or non-majoritarian government in the States. The last two might qualify as a shield only in the extreme instances when it is clear, as Heller suggests, that a state's republican form of government is suffering "death by a thousand cuts" through an excess of administrative and fiscal micromanagement by law and initiative. (80) While Heller's prescription may be overbroad with respect to the initiative process, (81) it recognizes what most commentators miss in the text of the Guarantee Clause: that "[it] does not apply to those matters not touching on a state's form of government[,]" such as public education or individual rights. (82)
Like Merritt's argument that the Guarantee Clause implies some level of state autonomy in choosing its republican form of government, Heller's "bottom-up" approach would deny the federal government a sword against state governments in at least one notable application. In Agua Caliente Band of Cahuilla Indians v. Superior Court, (83) the California Supreme Court denied a tribe federal common-law sovereign immunity from a state political practices investigation, holding that the Guarantee Clause shielded the state's political process from interference by federal immunity. (84) Heller argues, convincingly, that this use of the clause might serve as a model to shield state campaign finance laws from the same level of scrutiny applied to federal campaign finance laws. (85) The federal government ideally represents the strongest republican form of government due to its own structural guarantees (including its enlarged sphere of representation) "that help prevent corruption from interfering with representation or majority will." (86) As Madison originally recognized, the same cannot be said for the States, and strong federal constitutional attacks against the States' own anti-corruption shields not only distort the republican principles embodied in the freedom of speech, (87) but also may subvert the Guarantee Clause.
An emergent case serves as a reminder of the potential perils that may arise from a perfectionist reading of the Guarantee Clause. A century ago, the Supreme Court rejected a Guarantee Clause challenge to Oregon's initiative process. (88) Notably, it did not do so on the grounds that the initiative was consistent with a republican form of government, but only that the question was "embraced within the scope of the powers conferred upon Congress, and not therefore within the reach of judicial power," potentially leaving the federal government open to regulate the state initiative process. (89) Former Oregon Supreme Court Justice Hans Linde argues that the initiative, when "misused" for certain purposes, violates the Guarantee Clause. (90) Apparently, no court had revisited this question until Kerr v. Hickenlooper, a challenge to Colorado's "Taxpayer Bill of Rights" (TABOR) constitutional initiative. (91) On appeal, the Tenth Circuit held that the Guarantee Clause is judicially enforceable and, in light of the ample interpretative tools offered by originalism, susceptible to "judicially discoverable and manageable standards." (92) The court was careful on an interlocutory appeal not to address the merits of the plaintiffs' claim that TABOR "undermines the fundamental nature of the state's Republican Form of Government," (93) but the Supreme Court vacated the judgment (94) and remanded the case for further consideration in light of Arizona State Legislature v. Arizona Independent Redistricting Commission. (95) Still, such a sweeping attack on a state constitution lies well beyond what is necessary for preservation of the Union or protection of basic political equality. It exemplifies republican perfectionism.
II. THE NATIONALIZATION OF STATE POLITICS
The lack of meaningful consensus on the interpretation of the republican guarantee among scholars has not prevented the national government from attempting to impose various versions of republicanism masquerading as other federal powers and rights. The dominant constitutional story tells of perfecting the processes of democracy through representation-reinforcing federal judicial intervention against legislation, especially state legislation, that distorts the political process. (96) An extended narrative includes congressional enactment and federal enforcement of voting rights and campaign finance reform legislation and, more broadly, the proposal by Congress and ratification by the States of constitutional amendments extending voting rights. Throughout, the Supreme Court, abetted by Congress (or the reverse, depending on the telling), champions the Constitution's evolving promise of ever-more-equal citizenship in an ever-more-perfect republic.
This story, much of which has become true, is near its end. While substantial regression is unlikely given the hard-won settlement of basic political equality expressed in constitutional amendments and enforcing legislation, (97) federal progress beyond this settlement has run its course under the current constitutional regime. This settlement is the Union's national shield against anti-republicanism, and it remains strong in guaranteeing within a reasonable range republican pluralism in the States. Beyond this shield, no clear or coherent constitutional vision guides the Supreme Court or Congress to pick up the sword and fight for any particular republican perfectionism. If it ever did, process theory no longer constrains courts, no longer supports a consensus on its normative commitments, and no longer provides usable policy guidance. (98) To the contrary, the constitutional law of the political process is highly contested within the Supreme Court and between the Court and Congress.
The story, termed "the constitutionalization of democratic politics," (99) may be better understood as the nationalization of state politics, defined broadly as the inclusion of the entire political structure of a state including its means of electing federal officials. The national government "did not just judicialize election administration" and other aspects of state political structure, it "also federalized election litigation, moving much of it from state to federal courts." (100) What distinguishes the end of this story from its beginning is not that it is constitutional, but that it is national to the exclusion of, and often at the expense of, the states in a federal system.
The nationalization project has not failed. Rather, it helped establish the basic political equality of previously unrepresented or underrepresented citizens. (101) This strengthened the Union's shield against sectionalism that denied broad classes of the national population representation in our national and state politics. It may be true that federal courts' current construction of constitutional law "does both too much--by inappropriately extending rights doctrines into the design of democratic institutions--and too little--by declining to address self-entrenching laws aggressively enough." (102) Yet given the nation's substantial progress toward political equality, there is no longer reason to expect that the continued nationalization of state politics will do any better than devolution to the States at further advancing republican values, no matter how hard federal courts work to get the constitutional law right. At the same time, there are a number of reasons to expect that nationalization has done, and will continue to do, worse by imposing "constraints on what should be acceptable experimentation in the design of democracy." (103) Attempts to perfect any single vision of republicanism on a national scale, rather than to sustain plural visions of republicanism at the state scale, risk undermining the latter without achieving the former. The shield's work is largely done in guaranteeing republican forms of government in the States, so it may be time for the Union to sheathe its sword.
A. Congressional Nationalization
Congress is responsible for the most concrete advancements of basic political equality through nationalization. Beyond the significant impact of the Voting Rights Act and subsequent relatively minor administrative reforms, (104) however, Congress's greatest democratic achievements have been its partnerships with the States in amending the Constitution to establish a textual basis for basic political equality. Even with its own enforcement powers under those Amendments, its contribution does not extend far beyond the Voting Rights Act itself. Section 2 of the Fourteenth Amendment, (105) the Constitution's most explicit and self-executing republican promise of an expanded franchise (though compromised at the expense of women), has become a dead letter.
Congress's record in campaign finance reform is less inspiring. Even where it has been bold, as with the Bipartisan Campaign Reform Act of 2002 (BCRA), it has not been particularly innovative. The centerpiece of Progressive Era campaign finance reform, the Corrupt Practices Act regulating corporate and other campaign funding, was not a product of the federal government. Instead, it was conceived in the States and widely adopted by the early twentieth century when federal campaign finance legislation was still in its self-regulatory infancy. (106) Beyond BCRA, which the Supreme Court and the hydraulics of campaign finance (107) largely thwarted, Congress has either proceeded incrementally (the Help America Vote Act in 2002) or reiteratively (the Voting Rights Act reauthorization in 2006). Even such modest advances seem ambitious relative to the current pace and scope of federal legislation.
More importantly for campaign finance and Congress's structuring of republicanism in general, the unintended system resulting from the interaction of legislation, judicial review, and executive inaction is paralyzed by hyperpolarization that makes even minor reforms impossible. (108) As Lawrence Lessig explains, "The forces that would block [reform] work well and effectively on Capitol Hill, and inside the Beltway. That is their home." (109) For the few reforms where consensus might otherwise be possible, such as election assistance to states, malfunctioning budget and appointments processes prove insurmountable. (110)
B. Executive Nationalization
The federal legislation with the most transformative potential in the areas of voting rights and campaign finance faces uneven enforcement in the executive branch. The Voting Rights Act produced a record of uneven enforcement, particularly under the now impotent preclearance requirements of Section 5. (111) The lead enforcer and interpreter of federal campaign finance law, the Federal Election Commission (FEC), is subject to partisan nonenforcement by its deadlocked design; (112) the only serious dispute is whether that is a good or a bad thing. More work might be done on the causes and effects of partisan enforcement of federal election law, but suffice it to say that some campaign finance reform advocates view the Securities and Exchange Commission, or even the Internal Revenue Service, as a more promising enforcer of political transparency than the FEC. (113)
C. Judicial Nationalization
The Supreme Court stands at the center of the federal government's nationalization of state politics. Its banner was once the Carotene Products doctrine of heightened scrutiny for state legislation that "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." (114) Yet even Reynolds v. Sims, (115) the initial stage of clearing the most widespread political process blockage of malapportionment, did not advance any effective conception of republicanism beyond an important but technical rule of "one-person, one-vote" that has been overwhelmed by redistricting technology. (116)
We are not likely to see the Court create a republican representational principle on the scale of Reynolds again anytime soon. With one notable but self-limiting exception, (117) the Supreme Court has excused itself from the political thicket of justiciable political equality under the Fourteenth Amendment. (118) More recent racial and political gerrymandering cases suggest the reapportionment revolution's legacy of a justiciable and substantive standard of political equality may not progress farther than a strict quantitative, not qualitative, standard. (119) Notably, the Court in Evenwel v. Abbott appeared to defer to the consensus practice in the States by rejecting a claim that the Fourteenth Amendment requires states to use voter population, rather than total population, in apportioning state legislative districts. (120) Once again, however, the unanimous judgment's seeming endorsement of that consensus concealed deep divisions in the Court's approach to state republicanism. It drew a concurrence from Justice Thomas that invoked the Guarantee Clause directly:
As the Framers understood, designing a government to fulfill the conflicting tasks of respecting the fundamental equality of persons while promoting the common good requires making incommensurable tradeoffs. For this reason, they did not attempt to restrict the States to one form of government. Instead, the Constitution broadly required that the States maintain a "Republican Form of Government." But the Framers otherwise left it to States to make tradeoffs and reconcile the competing goals. (121)
The relative uniformity of state apportionment practices allowed the Court in Evenwel to avoid a choice between respecting state practices as legitimate expressions of diverse republican pluralism on the one hand, and using those practices as evidence of uniform republican perfectionism on the other. It remains to be seen which approach will predominate if and when a state departs from the consensus practice.
The Court's other interventions in political party, ballot access, and voting administration cases work only at the margins of a complex system of partisan politics, and as with gerrymandering, the Court has signaled its reluctance to intervene further. (122) Even setting aside its long history of narrowly construing possible constitutional bases for expanding the franchise, the Court's record on Congress's constitutional extension of voting rights is mixed. (123) In Shelby County v. Holder, the Court exposed basic disagreements about the role of Congress and itself in assessing, let alone guaranteeing, political equality in the States. (124) In so doing, it revealed again that the Court participates in, rather than adjudicates, the contest between particular forms of republicanism at the national level.
Notwithstanding the theoretical attraction of extending judicial representation-reinforcement to police the political process further, the actual Court has provided little reason to believe it could articulate and implement a coherent theory of republicanism. (125) The Court may not do much better than the current state political institutions it polices so as to justify displacing them. (126) Indeed, as Edward Foley argues, "[T]here is no guarantee that constitutional constraints designed to curb partisan favoritism in the legislature will be implemented in a nonpartisan manner by conventional courts, whether elected or appointed." (127) Beyond enforcing the thin settlement of basic political equality achieved through constitutional amendments credited equally to Congress and to some measure the ratifying states, the Court as an institution has proven itself incapable of nationalizing state politics to the end of perfecting any particular form of republicanism. The incoherence is as broad as it is deep, extending to comprehensively researched yet divided decisions on fundamental questions of politics like term limits and pamphleteering. (128)
Meanwhile, the Court's scrutiny of modern campaign finance reform efforts has transformed the First Amendment's republican values of democratic opportunity into libertarian values of a pluralist political marketplace. (129) According to the Court's view in Citizens United v. Federal Election Commission, "[democracy is premised on responsiveness[,]" and "[i]t is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies." (130) Although the dissent credited the majority with entrenchment concerns reflecting a broader republican suspicion of "an incumbency protection plan," it had to turn to an earlier case to find them. (131) The Court extended its pluralist (but not pluralism-respecting) theory of representation in McCutcheon v. Federal Election Commission, a case involving the right of a constituent of one representative to contribute to an unlimited number of representatives of other constituencies, with what appears to be a bold reframing of the American tradition of representation: "[C]onstituents [of the government but not of the candidate] support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those [donors' not constituents'] concerns." (132) The Court's general theory of republicanism expressed in these campaign finance cases supports its easy elision of federal and state politics (133) and may undermine federalism by opening the States' distinct republicanisms to further nationalizing forces. (134)
In one recent case, a different composition of the Court suggested it may be unwilling, in some circumstances, to move state election law further toward nationalization. Arizona State Legislature v. Arizona Independent Redistricting Commission presented the question of whether an independent redistricting commission enacted by popular initiative qualified under the Elections Clause as a "Legislature" competent to prescribe the "Times, Places and Manner" of congressional elections. (135) In Madison's terms, the case asked whether the Constitution uses "Legislature" in the Elections Clause in a national sense (for the nation) or a federal sense (for the state in confederation). Despite the apparently clear text, and with the benefit of a close analysis of constitutional structure and history, the Court read the Clause in its federal sense, and left to the States the power to govern federal elections--in the absence of congressional action--according to their own view of the legislative power in a republic.
Other cases on the horizon will present similar questions and again invite the Court to nationalize new rules of state republicanism. The Court avoided reaching the merits of Kerr v. Hickenlooper, but not without acknowledging the potential justiciability of its Guarantee Clause claim in a footnote to Arizona State Legislature. (136) That provocative citation, and Justice Thomas's invocation of the Guarantee Clause in Evenwel, suggests the Court will continue to engage the arguments between republican perfectionism and republican pluralism, perhaps with a helpful return to the constitutional text. As the Court reconsiders the justiciability of the Guarantee Clause, its text serves as an important reminder of its function as the Union's shield for the defense against anti-republicanism in the States, and not as the Union's sword for the imposition of a particular republicanism on the States.
III. THE DISTINCTIVENESS OF STATE REPUBLICANISMS
National republicanism may be incoherent, but is state politics any different or better? Distinct state republicanism may be merely a romantic notion overtaken by centralizing legal and political forces. (137) Once, perhaps, states constituted distinct political communities, but those were long ago displaced by factional interests working on a national scale. On this account, the mobility of individuals, parties, and campaign funds renders states as scenery on the national political stage. More pessimistically, even if states satisfy the constitutional requirements of basic political equality, distinct state republicanism only masks the partisan capture of state election laws for purely factional ends. (138) Drawing on Madison's suspicion of the factional disease afflicting state politics, this account finds the necessary republican cure at the national level. As bad as it might be at the national level, the argument goes, it is worse in the States.
Like other claims grounded in federalism principles, the existence and desirability of republican pluralism in the States depends on a significant degree of state autonomy in formulating election law. That legal autonomy must be more than theoretical or merely out of lockstep with federal law. It should be demonstrated in practice, producing "laboratories of democracy" in the truest sense of those words. That legal practice should be consequential, associated with diverse political cultures either preserved by or producing distinct systems of election law. Only then, if states are both legally and culturally distinctive, can we turn to an assessment of whether those distinctions are valuable to state and national politics.
It is worth asking, when we are this far along in the nationalization of state politics, if distinct state political cultures with distinct state conceptions of republicanism are becoming obsolete. The same financial and political forces that drive federal gridlock push money, political consultants, campaign advertising, and increasingly legislation out to the States, while exerting a gravitational pull on state-level politicians toward Washington, D.C. Recently, William Marshall concluded, "The uniqueness of a state's political culture and therefore the need to preserve it ... may be rapidly becoming a relic of the past." (139) Yet the persistence of states as distinct political systems--the persistence of republican pluralism--is hard-wired into national politics in several constitutional and extra-constitutional ways. Most obviously, after all the outside campaign money is spent, even Congress still must be elected "by the People of the several States," and presidential electors must be appointed in a manner directed by state legislatures. (140) Aside from this basic electoral connection, the discussion below reviews the range of policies and practices in which states remain distinct from each other and from the national government.
The strongest claim opposing distinct state republicanisms, that we have only one national republicanism, is overstated at least. National republicanism relies on distinct state rules for voting qualifications, election administration, political party organization, and districting. Even the broadest federal preemption under the Elections Clause, by a hypothetical Congress with an unprecedented appetite for centralization, could not entirely displace the States' role in national elections. Practically, moreover, "Congress has left much of its arguable power over election law on the table unused...." (141) In state elections, local campaign finance and lobbying laws come into play, as does a typically longer slate of elected offices and broader calendar of election dates. It is possible that pressure from national parties and interest groups could compress any possible political distinctions into an undifferentiated mass of election law reflecting a national republicanism. But the policies and practices in the States do not bear this out. There remain important, persistent distinctions among the legal regimes of state republicanisms, and these regimes produce and are preserved by distinct political cultures.
A. Legal Distinctions
An American today experiences more variation in elections than she does in just about any other aspect of her participation in mass culture, from what is playing on the radio when the alarm goes off, to the coffee shop, to the morning commute, to the workplace, to the lunch out, to the shopping trip on the way home, to the street where she lives. Within broad ranges of urban, suburban, and rural culture, these ordinary experiences may be indistinguishable. Yet on Election Day, everything changes.
Most of these distinctions are not merely functions of election officials' competence or best practices. There are vast and troubling variations in competence, to be sure. The legitimate breadth of these policy variations is telling, however. The leading bipartisan and nonpartisan efforts at election reform reach consensus on a number of effective "one size fits all" election metrics and rules, but they avoid the deeper value judgments (or partisan calculations) reflected in voter ID laws or particular means of early voting, let alone party rules and campaign finance regulation. (142) Nor are these distinctions simply a function of partisanship. For most election rules, significant variations occur among red and blue states, and within regions.
1. Election Administration
"Election Day" itself varies significantly among states. Primary campaigns kick off nearly a year before the election for March primaries in Illinois and Texas. They kick off in September, just two months before the general election primary, in Delaware, Massachusetts, New Hampshire, and Rhode Island. Louisiana holds no primary, but holds a runoff election in December if necessary. (143) General election campaigns therefore can run between two and nine months, depending on the state. Two-thirds of states offer some form of early voting, beginning an average of 22 days before the election and as early as 45 days before the election. (144) Twenty-two states allow early voting on weekends. (145) Twenty-seven states allow "no-excuse" absentee voting by mail, and three states (Colorado, Washington, and Oregon) require voting by mail. (146)
Once the traditional Election Day arrives, eleven states provide same-day registration. (147) A citizen is more likely to be registered to vote already in Mississippi (84% registration) and Colorado (74% registration) than if she lived next door in Arkansas (65% registration) or Wyoming (64% registration); voters need not register at all in North Dakota. (148) In states where there are still polling locations, opening hour varies from as early as 5 a.m. in Vermont (6 a.m. in ten other states) to as late as 11 a.m. in neighboring New Hampshire, and closing hour varies from as early as 6 p.m. in Hawaii and Kentucky to as late as 9 p.m. in Iowa, New York, and North Dakota. (149) A voter may wait to vote only a few minutes in Mississippi or New Jersey, but half an hour or longer in Florida or Maryland. (150) In the 2014 election, 31 states required voter identification, ten of which had a requirement that a voter without identification take additional action after Election Day for a provisional ballot to be counted. (151) Fifteen of these voter identification states required photo ID while sixteen accepted photo or non-photo IDs. (152) In local and special district elections, nonresidents may vote in twelve states, and non-citizens may vote in a small but growing number of localities. (153) Convicted felons can vote from prison in Maine and Vermont, but may never vote again in twelve states with permanent felon disenfranchisement where ineligible felons may make up as much as ten percent of the voting age population. (154)
2. Constituencies and Districting
One of the most fundamental and contested questions of representation, the choice between size of constituency and size of legislative body, is answered in a variety of ways by the States. State senates range from as large as sixty-three (New York) and sixty-seven (Minnesota) to as small as twenty (Alaska) and twenty-one (Delaware and Nevada). (155) State houses and assemblies range from as large as 400 (New Hampshire) to as low as forty (Alaska), forty-one (Delaware), and forty-two (Nevada); Nebraska lacks a lower house. (156) Senate constituencies range from more than 800,000 (Texas) and 900,000 (California) to less than 14,000 (North Dakota). (157) House constituencies range from more than 465,000 in California to less than 10,000 in Montana, Maine, New Hampshire, Vermont, and Wyoming. (158) California's average assembly constituency is the only constituency close in size to a congressional district, and more than 100 times larger than the house constituencies in New Hampshire (3,291) and Vermont (4,172). (159) The smallest seven state houses and smallest five state senates today are smaller than the U.S. House and Senate, respectively, in 1789. (160) Seventeen states have house constituencies smaller than the 30,000 minimum the Constitution sets for Congress. (161)
All state legislators have either two- or four-year terms, (162) and nearly all state executive officers have four-year terms. (163) Beginning in 1990 with California, Colorado, and Oklahoma, and ending with Nebraska in 2000, twenty-two states enacted term limits on executive or legislative officials by statutory or constitutional initiative. (164) Combined with pre-existing executive term limits, thirty-seven states limit the term of their governor and other executive branch officials. (165) Four states invalidated term limits by state supreme court decision, and another two repealed them by legislative action. (166) The wave of term limit laws represents one of the more successful recent efforts to nationalize state politics from the bottom up.
Redistricting--the state practice that may have the most direct effect on the composition of the national government--exhibits notable differences among the States. A slight majority of states leave redistricting in the control of the state legislature, although Iowa takes exceptional measures to cleanse the legislature's process of partisanship through legislative staff analysis of plans. Twenty-one states rely on some form of redistricting commission, though these commissions vary in independence. (167) In thirteen states, a commission has primary authority for drawing up the redistricting plan. In three states, a commission has advisory authority only. In five states, a commission serves as a backup in the event the legislature is unable to finalize a plan. Eight states form their redistricting commissions by legislative appointment, (168) and eight more rely on mixed appointments by the executive branch or a combination of executive, legislative, and judicial branches or state party leaders. (169) Four states form commissions from executive branch officials, and two include legislative leadership. (170) One, California, uses a citizens' redistricting commission chosen by lottery. (171) Most states rely on single-member districts after a slow decline of multi-member districts in the wake of the reapportionment revolution and subsequent voting rights litigation. (172) Yet, ten states continue to use multimember districts, ranging from two to eleven representatives each, in one or both houses of the state legislature. (173)
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|Title Annotation:||Introduction through III. The Distinctiveness of State Republicanisms A. Legal Distinctions 2. Constituencies and Districting, p. 415-450|
|Publication:||Harvard Journal of Law & Public Policy|
|Date:||Mar 22, 2016|
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