Akin to every other legal issue that comes before the Court, reconciling the state’s discretion and the Supreme Court’s role in judicial review requires a judicially manageable standard that allows the Court to determine when a legislature has overstepped its bounds. Without a judicially discoverable and manageable standard, the Court is unable to develop clear and coherent principles to form its judgments, and challenges to partisan gerrymandering would thus be non-justiciable.
In the partisan gerrymandering context, such a standard needs to discern between garden-variety and excessive use of partisanship. The Court has stated that partisanship may be used in redistricting, but it may not be used “excessively.” In Vieth v. Jubelirer, Justice Scalia clarified, “Justice Stevens says we ‘er[r] in assuming that politics is ‘an ordinary and lawful motive’ in districting,’ but all he brings forward to contest that is the argument that an excessive injection of politics is unlawful. So it is, and so does our opinion assume.” Justice Souter, in a dissent joined by Justice Ginsburg, expressed a similar idea: courts must intervene, he says, when “partisan competition has reached an extremity of unfairness.”
At oral argument in Rucho, attorney Emmet Bondurant argued that “[t]his case involves the most extreme partisan gerrymander to rig congressional elections that has been presented to this Court since the one-person/one-vote case.” Justice Kavanaugh replied, “when you use the word ‘extreme,’ that implies a baseline. Extreme compared to what?”
Herein lies the issue that the Court has been grappling with in partisan gerrymandering claims. What is the proper baseline against which to judge whether partisanship has been used excessively? And how can this baseline be incorporated into a judicially manageable standard?
In its recent decision in McDonnell v. United States, a case concerning corruption charges against the former Governor of Virginia, Robert McDonnell, the Supreme Court faced a seemingly simple question of statutory interpretation: what constituted an “official act” for the purposes of the bribery statute, 18 U.S.C. § 201(a)(3). In reality, not only did it answer a question far more complicated, but also, it provided far more than a simple answer.
In its attempt to reinforce democracy, the Court failed. Instead, it validated a pernicious definition of access, in which paid-for access, pay-to-play schemes, and bribery are the norm. Specifically, in claiming that this maligned form of access was necessary for a functioning democracy, the Court endorsed political norms that are, in fact, corrosive to society: stratified access to politicians and by association, democratic institutions. The Court ignored the reality of pervasive and systemic inequality—ranging from political, economic, social, and racial—in contemporary American society and the effect that inequality has on access. However, the Court did not arrive there alone—the many amici filing on behalf of the petitioner blinded it—at least partially—to the aforementioned realities and public opinion.
During the 2016 Presidential campaign, the average adult saw at least one “fake news” item on social media. The people distributing the articles had a variety of aims and operated from a variety of locations. Among the locations we know about, some were in Los Angeles, others in Macedonia, and, yes, others were in Russia. The Angelenos aimed to make money and sow chaos. The Macedonians wanted to get rich. And the Russians aimed to weaken Hillary Clinton’s candidacy for president, foster division around fraught social issues, and make a spectacle out of the U.S. election. To these ends, the Russians mobilized trolls, bots, and so-called “useful idiots,” along with sophisticated ad-tracking and micro-targeting techniques to strategically distribute and amplify propaganda. The attacks are ongoing.
Cheap distribution and easy user targeting on social media enable the rapid spread of disinformation. Disinformative content, like other online political advertising, is “micro-targeted” at narrow segments of the electorate, based on their narrow political views or biases. The targeting aims to polarize and fragment the electorate. Tracing the money behind this kind of messaging is next to impossible under current regulations and advertising platforms’ current policies. Voters’ inability to “follow the money” has implications for our democracy, even in the absence of disinformation. And of course, an untraceable flood of disinformation prior to an election stands to undermine voters’ ability to choose the candidate that best aligns with their preferences.
Political advertising is undergoing what some experts have coined a “revolution,” as digital advertising catches up with-and looks poised to overtake-television advertising as the most effective way of reaching voters during a political campaign. An increasingly popular method of communicating with voters online is through native advertisements-ads that match the editorial content of media or technology platforms, making them less intrusive but also more difficult to identify as advertising. Native ads can be used to match a broad range of environments and now can be found in online newspapers, social media platforms like Facebook, and even mobile and video games. New native advertising techniques have become so sophisticated that, according to studies, many consumers cannot distinguish a native ad from editorial content. Politicians have identified the potential appeal of native ads, particularly as a tool for engaging younger voters through popular mediums such as social media and games. But in the political sphere, due to several outdated loopholes in current federal election law, native ads may be exempt from having to include typically mandatory disclaimers, making them particularly difficult to identify as advertisements. This Note argues that native ads create disclosure issues when they are used in settings such as mobile games, where users may have no expectation of seeing political advertisements, if the platforms are exempt from disclaimer requirements due to alleged practical limitations.
Constitutional law is committed to a principle of geographic self-government: congressional districts and states are separately located and entitled to select different officials to send to Congress. James Madison explained in The Federalist Papers that checks and balances would only work if different places and their different politics were empowered to compete with and constrain one another. While constitutional law makes place significant for congressional elections, campaign finance law does not. Those with the resources to contribute often and in large amounts to congressional campaigns primarily reside in a few neighborhoods in a few metropolitan areas. Campaign finance law imposes no limitations and minimal disclosure on contributions from these places to other districts and states—places quite different than the ones where contributors reside. The result is that a few metropolitan areas dominate contributions to congressional campaigns.
Campaign finance law thus allows Congress to be controlled by very few places, dramatically undermining geographic self-government. While scholars have devoted substantial attention to other problematic features of money in politics, the geography of campaign finance law is a different constitutional problem justifying different constitutional solutions. This Article considers two types of legal responses: those that focus special attention on where campaign contributions are beginning and those that focus special attention on where campaign contributions are ending. While both types of solutions have their own respective constitutional benefits and negatives, they both share a common insight. Only by making campaign finance law conscious of place can we begin to address the problems of the geography of campaign finance law.
The scholarship on “politics as markets” reveals that dominant political parties use “lockups” to control the political system. So stronger, process-oriented judicial review is necessary to disrupt existing lockups. This Note comparatively applies this scholarship to campaign finance laws in the United States and United Kingdom. It shows that these countries’ campaign finance regimes function as lockups that permit the major parties to dominate their countries’ politics. Lockups allow these parties to control elections and the national discourse. These campaign finance lockups raise significant normative concerns because they restrict alternative voices’ political participation. This challenges democracies’ need for varied, pluralist free speech. In both nations, judicial review has disrupted the system and weakened these lockups, but this disruption has been more extensive in the United States. Finally, this disruption may bring its own costs by giving wealthy elites further, disproportionate speechmaking power.
Money buys things. This is the worry about money in judicial elections. As campaign spending in judicial elections has rapidly ramped up, there is increasing concern that judicial elections now have become “floating auctions” in which contributors purchase favorable judicial treatment in exchange for campaign financing. For sitting judges, the prospective need for money to finance their re-election looms over judicial decisionmaking and tempts them to decide cases in ways that attract, or at worst would not alienate, prospective contributors. Even the Supreme Court, which has hardly demonstrated great concern about campaign finance, recognized for the first time the potential for actual bias from big-money campaign spending in state judicial elections in Caperton v. A.T. Massey Coal Co.
What is regularly missed in this story of modern judicial campaign finance, however, is that the Republican and Democratic Parties play an indispensable role in the influence of money on judicial decisionmaking. The intuitive understanding of judicial campaign finance as a direct exchange of money for influence between individual contributors and candidates is too simplistic to capture the larger realities of modern judicial elections. Of course, there is a very real relationship between contributions to judges and judicial decisions by those judges favorable to their contributors that we ourselves have helped document. However, in the modern world of judicial campaign finance, the Republican and Democratic Parties broker the powerful relationships between contributors and candidates, particularly in partisan elections where their involvement is greatest.
Proposition 8, the California ballot measure that amended the state constitution to deny marriage to same-sex couples, passed by a small margin in November 2008. The campaign was contentious, well funded by both sides, and the subject of much media attention. After Proposition 8 passed, however, the debate about same-sex marriage in California was far from over. Shortly after the election, Proposition 8 opponents organized protests against certain Proposition 8 supporters and their employers throughout California and in other states. For example, opponents protested at the Church of Latter-Day Saints in Los Angeles because the church and its members raised a significant amount of money to support Proposition 8. Opponents also organized boycotts of businesses whose owners or employees donated to support Proposition 8. Several of these protests had negative repercussions for donors. For example, following threats of boycotts of his musical works and his employer, Scott Eckern, the longtime artistic director of the California Musical Theater, resigned from his position after it was revealed that he donated $1000 to Proposition 8. Marc Shaiman, the composer of the music for Hairspray, told Eckern that he would not let his work be performed in the theater due to Eckern’s support for Proposition 8. U.S. law requires a secret ballot for both candidate and issue elections, so how did opponents of Proposition 8 identify the donors to Proposition 8? The answer lies in disclosure laws. In California, as in most states, campaigns must publicly disclose certain information about individuals who donate to a ballot measure or candidate. California’s Political Reform Act of 1974, as amended, provides that all campaign donations of $100 or more must be published on the Secretary of State’s website, allowing the public to easily search for the names of campaign donors online. Further, not only must the donor’s name and the amount of the contribution be disclosed, but the donor’s street address, occupation, and employer’s name—or, if self-employed, the name of the donor’s business—must also be disclosed. On the federal level, campaign contributions to federal candidates are also now easily accessible to the public online. Federal law requires disclosure of individuals who contribute $200 or more to a candidate. This information can be viewed online through the Federal Election Commission’s (“FEC’s”) website, as well as on other websites. Not only has technology increased the availability of donor information online, but political entrepreneurs have also taken the FEC’s campaign finance data and made it even more accessible online, allowing users to search the data by multiple categories. For example, the Huffington Post, a popular blog, runs a search engine called “Fundrace 2008,” which allows a user to search for donors to 2008 presidential candidates by a donor’s first or last name, address, city, or employer. The website boasts about the easy access to the political leanings of nearly anyone a user knows of: “Want to know if a celebrity is playing both sides of the fence? Whether that new guy you’re seeing is actually a Republican or just dresses like one?”
The widespread use of the initiative process and the perception that it has lead to considerable negative consequences have prompted calls for reform. In this Article, we focus on two complaints about initiatives that can be addressed through a new legal framework. First, some have argued that the policy choices made through direct democracy are often not socially optimal, and the process through which initiatives are passed may make welfare-reducing decisions inevitable. Reform proposals often aim to correct this complaint by increasing the hurdles to ballot qualification. This sort of reform is counterproductive in several ways. By increasing the “price” of ballot access, such responses are likely to exacerbate the current disproportionate influence of money. Moreover, there is no reason to believe that a more difficult qualification process will impede more socially suboptimal policies than policies that are welfare-enhancing and yet stymied in the legislature by powerful interest groups. We argue that a better focus of initiative reform would provide other checks and balances throughout the process, not primarily during the qualification period. Second, initiatives, once enacted, often fail to be implemented by government officials. Few reform proposals are aimed at this post-enactment problem; they do not take account of the likelihood that government officials who resisted passing the proposal are likely to continue to undermine it during the implementation phase. In contrast, our framework includes a new institution to monitor compliance with popularly generated initiatives and ensure greater enforcement. We describe these two concerns in greater detail in Part II.
In a February 2005 press conference about his proposed 527 Reform Act of 2005, Senator John McCain (R-AZ) vehemently expressed his views about the Federal Election Commission: “the Federal Election Commission has failed to do their duty….This is a corrupt organization. And I don’t use the word lightly. We need to reform the Federal Election Commission.” This was not McCain’s first public contribution to the litany of derogatory rhetoric about the FEC, which has been called the “Failure to Enforce Commission,” a “toothless tiger,” “FEC-less,” a “muzzled watchdog,” and “The Little Agency That Can’t.” McCain has previously called the FEC a “rogue agency” and “weak and failing.” But in a comment that is more than just name-calling, McCain gets to the heart of what is really wrong with the FEC: it is “structured by Congress to be slow and ineffective.”