Race and Politics: The Problem of Entanglement in Gerrymandering Cases

Gerrymandering—the manipulation of political districting processes and boundaries for partisan political advantage—has proven a troubling and difficult area of constitutional concern. This is partly due to the exceptionally divergent standards of judicial review applicable depending upon the basis for the gerrymander claim. The Supreme Court has consistently held that racial gerrymanders are subject to strict scrutiny review and presumptively violate the Equal Protection Clause of the Fourteenth Amendment. The Court has recently declared that partisan gerrymanders, on the other hand, are a political question and non-justiciable. 

This Article argues that current guidance from the Supreme Court on standards for evaluating gerrymandering claims is inadequate to guard against constitutional violations because of the problem of entanglement: the race and partisan preferences of voters are so deeply intertwined in many contexts that it is practically impossible to discern whether race or partisanship was the basis for political districting decisions. The entanglement of race and politics in political districting processes means that there is a dangerous risk that unconstitutional racial gerrymanders will escape judicial review under the cover of partisanship. 

This Article explicates the problem of entanglement in gerrymandering cases and evaluates several possible solutions. Presenting original research drawn from the 2020 decennial census and voter data from the 2020 presidential election, this Article establishes an empirical basis for the problem of entanglement. Although prior legal scholarship has emphasized the problem of “conjoined polarization”—the overlap in partisan and racial preferences—as an enabling factor in partisan redistricting processes, this Article claims that racial residential segregation plays a more central and dynamic role than has generally been acknowledged in undergirding the entanglement of race and politics in political redistricting processes.


The manipulation of political districting processes for political advantage—popularly known as gerrymandering—has long bedeviled the United States, but concerns about the abuse of this practice have intensified in recent decades due to a confluence of factors: intensifying partisan political polarization, widening racial political polarization, the use of detailed voter files to predict voting behavior, the emergence of sophisticated computer technology to generate ever-more precise political maps, and a sharp divergence in the Supreme Court’s jurisprudence governing different forms of this practice. 

In reviewing suits brought to challenge gerrymandering practices, the Supreme Court has held that state legislative efforts to draw political districts based on race violate the Equal Protection Clause, a natural extension of the Court’s general prohibition on the use of racial classifications in policymaking. On the other hand, the Supreme Court has held that legislative efforts to draw political districts based upon partisanship or for partisan political advantage are “political questions” and non-justiciable. 

In this regard, these two forms of gerrymandering are treated in the utmost extreme: racial gerrymandering is subject to the highest level of judicial scrutiny while partisan political gerrymandering is treated as non-justiciable, meaning not that it is subject to the lowest level of judicial review, rational basis review, but that the practice is deemed unsuitable for judicial review at all. Racial gerrymanders are subject to strict scrutiny judicial review whereas partisan political gerrymanders are not subject to judicial review whatsoever. 

The Supreme Court’s broader equal protection clause jurisprudence supplies a basis for treating these two types of claims differently. Prevailing equal protection jurisprudence treats race as a “suspect” class in government policymaking subject to strict scrutiny review, while most other classifications are reviewed under a rational basis test. But strict adherence to this approach would compel a very different result than the determination that partisan gerrymanders are non-justiciable. Lower courts would still be able to entertain such cases, just under a much lower level of review, rational basis.

If there were no relationship between race and partisanship in voting patterns, then political gerrymanders and racial gerrymanders could be regarded as separate and distinct categories and there would be no logical inconsistency in a jurisprudence that regulated one but not the other. Partisan gerrymanders would have no observable racial effect, or vice versa. In practice, however, race has long been highly correlated with partisan political affiliation. Although racial political polarization waxes and wanes over time, it is strong enough that a jurisprudence of gerrymandering cannot neatly divide the two types. 

The Court’s racial gerrymandering jurisprudence makes clear that sorting voters into separate political districts on the basis of race is unconstitutional, just as it is presumptively unconstitutional to sort pupils into different schools on the basis of race. In racially diverse states with racially polarized voting patterns and merely modest levels of racial residential segregation, however, it is likely that partisan gerrymandering will effectively sort people into different districts on a racial basis. In much of the country, race and partisanship are entangled, such that redistricting efforts on one basis are largely indistinguishable from the other. As a consequence, unregulated partisan gerrymanders have a dangerous potential to subvert the constitutional rule against racial gerrymandering.

Although political scientists have long recognized the correlation of race and partisan affiliation (what political scientists term “conjoined polarization”), prior analysis of gerrymandering jurisprudence has underexamined the specific role of racial residential segregation in facilitating the entanglement of race and politics in redistricting processes. In recent legal scholarship analyzing this problem, segregation is either completely absent from the discussion, mentioned in passing, or is treated as an assumed operative background condition. The role of segregation in relation to gerrymandering processes is both more central and more dynamic than is generally appreciated.

This Article argues that it is the interaction of racial residential segregation and racial political polarization that creates the entanglement problem in redistricting processes, not merely “conjoined polarization” by itself. Where the level of racial residential segregation is higher, the entanglement of race and politics in districting processes is likely to be greater, not only because of the geographic concentrations of people that facilitate political district line-drawing, but also because regions with higher levels of racial residential segregation have both greater racial political polarization and partisan political polarization. 

This Article presents original analysis of the 2020 presidential election results and 2020 census data to demonstrate that racial segregation and partisan segregation are strongly correlated. Moreover, regions with higher levels of racial residential segregation appear to have higher levels of partisan polarization. As a result, partisan gerrymanders in those regions are likely to result in the segregation of voters into different political districts on the basis of race and vice versa. 

Part I provides a brief history of gerrymandering, including the types and forms of political districts that were historically practiced. Political districts were far more varied in the early years of the republic than is generally appreciated or understood today. More importantly, Part II notes that although gerrymandering practice can be traced to the early decades of the republic, efforts to curb it also extend back into the nineteenth century. Standards and norms for democratic practice have improved and evolved since the framing of the Constitution, laying the groundwork for particularized claims brought to challenge this practice. 

Part II compares racial gerrymandering and partisan political gerrymandering cases, rulings, and reasoning. It analyzes points of divergence and convergence between the two lines of cases. The partisan and racial gerrymandering cases germinate from the same seed and the same soil but have produced extremely divergent results in the body of the Supreme Court’s precedent governing these cases. This creates a problem in cases brought that challenge redistricting where race and partisan affiliation are largely co-extensive. In such cases, racial gerrymandering could escape judicial scrutiny under the cover of partisanship. 

Part III explicates the entanglement problem, that purely partisan redistricting maps are in many cases objectively indistinguishable from redistricting maps that explicitly use race. The key components of this problem are racial political polarization and racial residential segregation. When these factors coincide, partisan gerrymandering is likely to sort people into different districts on a racial basis. Part III also shows that racial residential segregation plays a larger role than is generally appreciated in both racial and partisan gerrymandering processes. It presents original and other recent empirical research suggesting that regions with higher levels of racial residential segregation have both more racial political polarization and political segregation.

Part IV reviews three possible ways to address the entanglement problem in terms of current constitutional law and text, weighing the merits of each. First, any hybrid gerrymandering case in which race appears to play a significant role but is co-extensive with partisanship could be categorically exempted from judicial review if the state raises such a defense. This approach is not a functional solution because it would formalize a loophole for subverting the Constitution as long as racial gerrymanders are clothed in the guise of partisanship. 

Second, any case where race and partisanship are co-extensive could instead be drawn within the racial gerrymandering line and held to strict scrutiny review, even though race cannot be said to “predominate.” This approach would better align with the Court’s broader anti-classification jurisprudence but would require adjustments to the standards applicable to racial gerrymandering cases.

Finally, the Court could reverse its judgment that partisan gerrymanders are non-justiciable. The Court only recently gathered a majority of Justices in support of that view. It could reverse course and direct lower courts to review such claims under a lower standard of review within the equal protection jurisprudence or some other constitutional provision or basis altogether. In this regard, Part IV makes the case for revisiting the Court’s Guarantee Clause jurisprudence based upon principles and concerns articulated by the framers of the Constitution. 


Although the United States was still a young nation at the time of the ratification of the Constitution in 1787, the framers already enjoyed decades of cumulative experience with democratic political processes, including political districting, based upon the collective experiments already underway in the various states since the Revolution. The Federalist Papers, for example, note political districts of varying size and composition both within and between states as a matter of fact. 

In Federalist No. 57, James Madison observes that different sized political districts contribute to both the federal and state legislatures: “The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes for each of its representatives in the State legislature.” Thus, Pennsylvania’s county-districting system for electing state legislators necessarily resulted in large population disparities between political districts in that state at the time of the adoption of the Constitution. But in Federalist No. 61, Alexander Hamilton notes that although the New York State Assembly is drawn from counties, the New York State Senate is drawn from districts composed of two to six counties apiece.

While acknowledging the existence of population disparities between political districts (and implicitly, the existence of inequities in political representation), both Madison and Hamilton unequivocally maintain throughout The Federalist Papers that the principle of majoritarianism—that the majority should prevail—is the fundamental basis of free government and republican government. In Federalist No. 58, for instance, Madison asserts that “the fundamental principle of free government” is that the “majority would rule.” In that context, he was writing against the suggestion made by critics of the proposed Constitution that supermajorities should be required for either a quorum or a decision (such as passing a law) in the House of Representatives. As he explains: “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.” 

Indeed, this is one of the chief objections the framers had with the Articles of Confederation, which gave equal suffrage to each state in the federal legislature (unlike the Constitution, which does so only in one legislative chamber, the Senate). Prior to the constitutional convention in Philadelphia in the summer of 1787 where the Constitution was hammered out, Madison privately wrote to Thomas Jefferson expressing his hopes for systemic changes to the federal government. Chief among these concerns was converting from a system in which each state receives equal voting power in Congress to a system of representation based upon population. 

Hamilton firmly agreed. In Federalist No. 22, Hamilton maintains that “the fundamental maxim of republican government . . . requires that the sense of the majority should prevail.” Therefore, in his view, Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware [sic] an equal voice in the national deliberations with Pennsylvania or Virginia, or North Carolina. 

In a powerful and eloquent denunciation of the principle of equal suffrage between states, Hamilton goes on to develop the argument on the “impropriety of an equal vote between States of the most unequal dimensions and populousness” in various ways. 

This argument, however, and all of the reasoning developed in support of it, would appear to have equal force against political districts within states of “most unequal dimensions and populousness.” Indeed, in Federalist No. 46, Madison asserts that “[e]very one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the state, to the particular and separate views of the counties or districts in which they reside.”

How can the principles, reasoning, and keen insights developed by Hamilton in pushing for more proportional representation between states in the federal government be reconciled with the apparent lack of concern with unevenly populated political districts within states or the absence of an explicit mechanism regulating it? The answer is not clear. It may have been an oversight. There were many weighty matters that preoccupied the Constitutional Convention, and the issue of unequal political districts within states may not have been a topline concern. Or, if it were a serious concern, perhaps any concerned framers were either outnumbered by those who were not or sensed efforts to regulate it were either impracticable or not a winnable issue. Despite their reputation, especially Madison’s, as “author” of the Constitution, historians have noted that most of the proposals Madison or Hamilton introduced or supported at the convention were defeated. 

Or perhaps they assumed that unequal populations across political districts within states, to the extent that they were found, would exist within tolerable limits, or would not result in the vast and strikingly unequal representation of political interests to the same extent found when small states enjoyed the same voting power as the larger states. After all, the proponents of the Constitution were largely concentrating their reform efforts on addressing defects in the experience of government under the Articles of Confederation and the paralysis that resulted from allowing small states to block legislation necessary to advancing the interests of the nation.

Yet another possibility is that they believed that a separate and sufficient mechanism existed for addressing the districting problem. As an example of the latter, perhaps they believed that Article I, Section 4, allowing Congress to alter state electoral rules in federal elections, would suffice to remedy any particularly egregious or extreme case that might arise within a state. This possibility is purely speculative given that none of the three lengthy Federalist Papers (59–61) dedicated to defending the inclusion of this provision mention the composition, size, or population of political districts. In any case, this provision quickly fell into disuse, because it would be decades before Congress passed a law under this authority.

Regardless of the framers’ concern—or lack thereof—for the issue of inequities between political districts within states, state legislatures took full advantage of the maneuvering room granted them by the Constitution’s silence on this matter. In one of the most notorious instances of abuse of this power, the Massachusetts legislature passed a redistricting law in 1812 designed to minimize the political power of the Federalist Party in the next election by concentrating Federalist voters into a small number of districts while spreading Republican voters into a wider range of districts. The plan worked because the Republican party won twenty-nine seats compared to eleven for the Federalist Party, despite winning only 49% of the vote. The map, however, so conspicuously divided up the Boston region in an unnatural manner that critics likened the shape to a salamander. Governor Elbridge Gerry, a leading proponent of the plan, lent his name to political history when a political cartoonist dubbed the plan a “Gerry-mander: A new species of Monster.”  

The type and form of political district found in the early republic was more diverse and less uniform than those that exist today. Not only were political districts of unequal population and dimension regularly employed, and the manipulation of those districts common to the extent of political tolerance, but the form and type of district were not nearly as uniform as is the case today. All districts organized for electing members to the House of Representatives today are what political scientists call “single-member plurality” districts. This means that each district elects a single member, and that member is elected by a plurality of the vote (winning more votes than any other candidate—also called “first past the post”). This was not, however, the case in the early years of the republic. A variety of district types co-existed, from multi-member to at-large districts. Many of these district types were designed to maximize or entrench partisan political power.

The Constitution neither prescribes nor prohibits particular types of districts or methods of electing representatives, aside from the requirement that voting qualifications be the same as those employed for the most “numerous branch of the state legislature.” It only requires a certain number of representatives for each state based upon relative population. Consequently, most of the original thirteen states used multi-member districts in the first congressional elections. 

Between 20% and 44% of House members were elected from multi-member districts until the Twenty-Eighth Congress. This means that each district elected more than one representative. They did not use proportional representation systems, as is common to most modern parliamentary democracies, as such systems had not yet been developed. Instead, they gave some districts greater political representation relative to others. Later, some states used “at-large” voting, meaning that House members were elected in some states by a vote of the entire state, as United States senators are elected today. 

As is true of many aspects of our political system and institutions, there was a gradual trend toward greater uniformity. In 1842, Congress passed the first of a series of laws, generally known as “Apportionment Acts,” which outlawed at-large, statewide House districts under its Article I, Section 4 authority. Although ostensibly aimed at giving political minorities within states more opportunity to elect members to Congress, it also had the effect of outlawing multi-member districts, not just at-large systems. There were serious doubts about the constitutionality of such laws, and at least a few states continued to use at-large systems in violation of the law.

It was not until an apportionment act in 1872 that Congress added that districts should not only be geographically contiguous and single-member, but also that they should contain “as nearly as practicable an equal number of inhabitants.” This requirement was reiterated in similar subsequent enactments, although it was not yet a constitutional principle. 

In 1967, Congress passed another law prohibiting multi-member and at-large districts (in states with more than one representative) based on concerns that southern states might resort to at-large, statewide systems in response to the Voting Rights Act of 1965. Both multi-member and at-large districts could be used to dilute Black voting strength in southern states. 

The key developments, however, were in the courts of the 1960s. In 1962, the Supreme Court ruled that political districting processes were “justiciable” and could be reviewed by courts in the case of Baker v. Carr. Two years later, the Supreme Court ruled that political districts should approximate equal population and announced the principle of “one person, one vote.” Unequal political districts undermined this principle. If districts could be devised of unequal size, then some people enjoy greater electoral influence, and their votes might count more than others. This legal principle has been serially re-affirmed and strengthened such that the Court has struck down districting laws drawing districts with deviations of less than 1% in population between them. Permitting suits challenging inequities and disparities in the design of political districts opened the door for the challenges to partisan political and racial gerrymandering processes.


This Part of the Article will briefly review the major challenges to racial gerrymandering and partisan political gerrymandering reviewed by the Supreme Court and conclude with some comparative observations and analysis. 


The first notable racial gerrymandering case actually precedes Baker v. Carr. In Gomillion v. Lightfoot, the Supreme Court considered a challenge to a redistricting plan in Alabama that would have rendered the city of Tuskegee a twenty-eight-sided political district for no perceptible reason other than to disenfranchise the town’s Black population, which lived virtually exclusively in the districts outside the newly drawn city boundaries. The Court held that complaints alleging racial gerrymandering of municipal boundaries were cognizable under the Equal Protection Clause of the Fourteenth Amendment. 

A decade later, in White v. Regester, the Supreme Court affirmed a lower court ruling that a redistricting plan adopted in Texas had elements designed to exclude Mexican-Americans from electing representatives in the state legislature through the employment of multi-member districts. The Court, however, rejected a similar claim involving multi-member districts in Indiana that had a disparate effect on Black voters in racially segregated urban neighborhoods. These cases, however, did not involve the drawing of districts so much as the type of district. 

Racial gerrymandering claims received a significant boost in a series of cases considered by the Supreme Court after the 1990 census, beginning with the landmark case of Shaw v. Reno, in which the Court first recognized this claim as such in the drawing of district lines. After the 1990 census, North Carolina was awarded an additional congressional seat. The state legislature’s initial apportionment plan was rejected by the Department of Justice under the preclearance provision of the Voting Rights Act (“VRA”). A revised VRA-compliant plan created a second majority-Black district. Five white North Carolina residents sued, arguing that the redistricting plan violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, the residents claimed that the state engaged in an “unconstitutional racial gerrymander.”

In an opinion authored by Justice Sandra Day O’Connor, the Court articulated several principles that helped lay the foundation for a clear rule against racial gerrymanders. First, the Court situated the case firmly within its racial classification jurisprudence, affirming that “laws that explicitly distinguish between individuals on racial grounds fall within the core of [the Equal Protection Clause’s] prohibition,” and that “[e]xpress racial classifications are immediately suspect.” Furthermore, the Court asserted that the harms of racial classification are as present in the electoral context as they are in other contexts that the Court had reviewed: 

Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.

The Court acknowledged, however, that all redistricting is necessarily race-conscious, drawn with an awareness of racial demographics, just as the legislature is aware of many other demographics features when drawing legislative districts. Therefore, the Court held that not all race-conscious redistricting is unconstitutional. The Court did not, however, identify the line between permissible race-conscious political redistricting and impermissible racial gerrymandering. It concluded that the plan in question was so “bizarre on its face that it was ‘unexplainable on grounds other than race.’ ” Therefore, the Court held that the appellants stated a claim strong enough to survive a motion to dismiss and remanded the case for further determinations. 

A similar set of facts led to another suit that the Supreme Court considered involving Georgia in the case of Miller v. Johnson. In announcing its decision in an opinion authored by Justice Anthony Kennedy, however, the Court both affirmed critical parts of Shaw and helped indicate where to draw the line between race-conscious political districting and impermissible racial gerrymandering. 

The Court first specifically rejected the state of Georgia’s claim that “evidence of a legislature’s deliberate classification of voters on the basis of race cannot alone suffice to state a claim under Shaw.” Kennedy also observed that “the essence of the equal protection claim recognized in Shaw is that the state has used race as a basis for separating voters into districts.” Critically, however, the Court promulgated a “predominant factor” test to guide it’s application of the facts to the law in this context. 

To establish a racial gerrymandering claim, a plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” To make this showing, a plaintiff must establish that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a state can “defeat a claim that a district has been gerrymandered on racial lines.” 

In several subsequent cases involving similar fact patterns and southern states, the Court further clarified that to bring racial gerrymandering claims, individuals must reside in the district that they claim is gerrymandered and that such claims should be brought on a district-by-district basis, not against an entire plan. This is consistent with the view that these cases are concerned with the dangers of racial classification. An individual residing outside of a district that it claims has been gerrymandered has not, in some sense, been “classified” on the basis of race by government as the Court has construed this concept. It should be noted that most of the contemporaneous cases heard by the Court at this time involved drawing districts to increase or preserve minority representation in Congress under the VRA.

There remain a number of ambiguities in how to apply the predominance test, some of which the Supreme Court has grappled with, but has not necessarily fully resolved. In particular, the Court has tried to clarify how the consideration of race is to be viewed in relation to other considerations before triggering strict scrutiny. In a case heard in the 2015 term, the Court rejected a lower court’s ruling that race did not “predominate” as a consideration in the redistricting plan because of “non-racial factors,” including the goal of creating districts of equal population. The Court clarified that the equal population factor is not a factor to be considered in the ordinary course of redistricting, but a constitutional mandate. While that may seem like an easy case, the Court considered a harder question in the 2016 term. 

The state of Virginia defended a Republican-led redistricting plan against a racial gerrymandering claim on the grounds that the “predominance test” should only be applied if the use of race is in conflict with “traditional districting principles,” as it had presumed in cases such as Shaw. The Court rejected this position in a seven-to-one decision presented in an opinion by Justice Kennedy. He concluded that racial gerrymanders can exist or arise even under plans that otherwise conform to traditional factors such as compactness and contiguity. As he explained, “The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.”

Critically, the Court emphasized that an unconstitutional racial gerrymander can arise or exist even if an identical plan could have been adopted without consideration or use of race. Justice Kennedy explained that “[t]he racial predominance inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications the legislature in theory could have used but in reality did not.” Thus the predominance test is a factual inquiry into considerations used as part of the actual districting process. Holding otherwise would provide a state with constitutional cover for unconstitutional behavior. As the Court observed, “By deploying [non-racial] factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.” 


Since the early 1960s, the Supreme Court has become more solicitous of racial gerrymandering claims even has it has become more hostile to partisan political gerrymandering claims. This Section will now review the latter line of cases. 

The Supreme Court squarely confronted a partisan gerrymandering claim in the 1986 term in the case of Davis v. Bandemer. In that case, the Court reviewed a redistricting plan proposed by the Republican-controlled Indiana state legislature. This plan yielded an immediate partisan advantage in which 43 out of the 100 seats in the state House of Representatives were filled by Democratic candidates even though 51.9% of the statewide votes went to Democratic candidates. Upon review, a deeply divided Court produced a fragmented set of opinions in which most justices agreed on the result—a holding that the plan was not unconstitutional—but disagreed on the rationale and basis for that judgment. 

Six of the Justices, and therefore the Court, endorsed the legal principle that partisan or political gerrymanders are justiciable, while three Justices, Justice O’Connor, Justice Burger, and Chief Justice Rehnquist, preferred to rule that such claims are not. Even among the Justices in the majority and plurality, however, there was a lack of consensus on the grounds for doing so and on the standards that should be adopted to evaluate such claims. The debate between the Justices prefigures most of the issues that have been subsequently debated in this context. 

The plurality of Justices White, Marshall, Brennan and Blackmun begin with the principle that in order to establish a partisan gerrymandering claim, plaintiffs must “prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” They caution, however, that the mere fact that “a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm.” In addition, they reject the notion that mere disproportionality in representation is a sufficiently adverse effect to establish a constitutional violation. The plurality advises that reviewing courts examine both the district individually as well as the state’s overall districting plan holistically. The plurality also asserts that a constitutionally infirm redistricting plan can occur either when a minority manipulates boundaries to consistently thwart the will of the majority, or when a majority uses its power to shut a minority out of the political process or a meaningful chance to influence it.

Ultimately, the plurality held that “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” In applying this standard, the plurality emphasized that claimants would need to examine more than a single election to conclude that an impermissible partisan gerrymander exists, and that they should be able to distinguish between a meaningful structural disadvantage established by districting compared to mere lack of success in persuading voters. The plurality felt that the district court’s conclusions were less persuasive than the state’s defense on this point and voted to reverse the lower court. 

Justice Powell and Justice Stevens found the plurality’s approach too restrictive and would have affirmed the lower court. In particular, Justice Powell wrote in favor of a multi-factor analysis: 

The most important [factor to consider is] the shapes of voting districts and adherence to established political subdivision boundaries. Other relevant considerations include the nature of the legislative procedures by which the apportionment law was adopted and legislative history reflecting contemporaneous legislative goals. To make out a case of unconstitutional partisan gerrymandering, the plaintiff should be required to offer proof concerning these factors, which bear directly on the fairness of a redistricting plan, as well as evidence concerning population disparities and statistics tending to show vote dilution. No one factor should be dispositive.

Justice O’Connor and Justice Burger argued strenuously that the majority’s holding would prove unworkable in practice, as illustrated by the inability of the six Justices in favor of holding partisan gerrymanders as justiciable to get behind a single standard and therefore was a “political question” as set out in the framework for evaluating such questions in Baker v. Carr. In addition to the lack of a clearly defined and easily applicable standard for adjudicating such claims, they had prudential concerns. Justice O’Connor argued that without a clear standard, opening federal courts to claims of partisan gerrymandering would lead to “pervasive and unwarranted judicial superintendence of the legislative task of apportionment.” She wondered if there was any logical stopping point short of “roughly proportional representation for every cohesive political group.”

Despite its inviting holding, Bandemer established a heavier burden for plaintiffs to overcome so as to make out a discriminatory political gerrymandering claim than its authors probably imagined. Over the next eighteen years, no federal courts, at any level, ruled that a redistricting plan was an unconstitutional political gerrymander. This was the situation when the Court heard the case of Vieth v. Jubelirer in 2004.

In Vieth, the Court considered a suit brought by members of the Democratic Party, claiming that the state of Pennsylvania’s partisan redistricting plan violated the Constitution. Five Justices agreed that the plan did not violate the Constitution, but four of those Justices took the position of Justice O’Connor, Justice Burger, and Chief Justice Rehnquist in Bandemer, arguing that political gerrymanders should be non-justiciable and voting to overturn Bandemer. The fifth Justice, Justice Kennedy, however, agreed that current standards were unworkable, but he preferred to leave the door open to discovering one. The four dissenting Justices agreed with Bandemer’s holding but disagreed on the specifics of how to operationalize that principle. 

The Court subsequently heard a case that had been held over until Vieth was decided, League of United Latin American Citizens v. Perry. In Perry, the petitioners challenged the 2003 redistricting plan enacted by the Republican-controlled Texas legislature. Drawn merely a year after the 2002 midterm elections, the 2003 plan led to an election result where twenty-one Republicans and eleven Democrats were elected in congressional elections the following year, a far more lopsided result than the aggregate vote count would suggest. The petitioners argued that the mid-decennial nature of the redistricting plan revealed the legislature’s sole motivation to gain partisan advantage, which should be sufficient to trigger heightened scrutiny. In the majority opinion, Justice Kennedy entertained the petitioners’ proposed “sole-intent” test, but ultimately found it “not convincing” because some contested district lines were drawn based on more local interests and a number of line-drawing requests by Democratic legislators were honored.

Interestingly, Justice Stevens and Justice Breyer, in their dissent, proposed a different test wherein a plaintiff must prove partisan aims by showing that: (1) the legislature “subordinated neutral districting principles to political considerations” and (2) their predominant motive was to “maximize one party’s power,” along with a showing of discriminatory intent by establishing that (1) the plaintiff’s candidate of choice won election under the old plan; (2) the plaintiff’s residence is now in a district that is a safe seat for the opposite party; and (3) the plaintiff’s new district is less compact than the old district. However, this complex alternative test was clearly not entertained by the majority. 

The next major partisan gerrymandering case was heralded when the Court agreed to review a redistricting plan arising from Wisconsin in Gill v. Whitford, based on the fact that a new technical standard had been developed and proposed: the efficiency gap. This was a formula devised by social scientists to provide metrics that could gauge the specific disadvantage created by certain redistricting schemes. The authors of this formula claimed it provided clear and workable standards for operationalizing them. The result was a letdown when the Court dismissed the case for lack of standing. The Court also breezily dismissed another case the same year in a per curiam opinion regarding Maryland’s Democratic-favored political gerrymandering. This case was reconsidered, and then dismissed, in the 2019 term.

Justice Kennedy’s departure from the Court led to a more decisive result in this line of cases. In Rucho v. Common Cause, a majority of the Court held for the first time that partisan gerrymanders are a political question and non-justiciable largely for the reasons developed in the dissent in Bandemer and the concurrences in Vieth. This would seem to be, thus far, the end of the line for claims of partisan gerrymandering. 


The juxtaposition of the racial gerrymandering and partisan political gerrymandering cases is itself revealing. The partisan and racial gerrymandering cases germinate from the same seed and the same soil. They both arise out of a political context in which democratic representation is being distorted or manipulated for specific advantage, and in a legal context in which the Constitution provides scant direct guidance (despite the provision of a political mechanism by which Congress, via Article 1, Section 4, can alter state electoral rules in federal elections). The germ for both claims is the Court’s greater solicitude toward challenges to various electoral schemes in the early 1960s. And yet the Court has evolved vastly different frameworks and conclusions for regulating these forms of political districting activity for reasons that are not entirely convincing or coherent. 

In theory, the different levels of scrutiny and accord given to race versus other classifications under the Equal Protection Clause could explain the differences in treatment, but the proponents of treating political gerrymanders as non-justiciable decline to ground their reasoning on this basis. After all, if this were the critical explanatory factor, then partisan gerrymandering claims would be justiciable, just at a much lower level of judicial review. 

Instead, the main contention of the non-justiciable position emphasizes the lack of workable standards and the constitutional structure and history of gerrymandering as a political practice. Recall, for example, that Justice White and the plurality in Bandemer emphasized whether a districting scheme created a severe structural disadvantage in access to the political process, whereas Justice Powell (joined by Justice Stevens) would have applied a multi-factor, holistic approach. Justice O’Connor and the Justices who joined her opinion argued that the Baker factors for evaluating whether an issue is a political question squarely fit, and that there was no logical stopping point short of proportional representation once such claims were entertained.

The most obvious rejoinder to the claim that political gerrymandering suits cannot be grounded onto a workable standard is the fact that workable standards have already been developed and adopted in the racial gerrymandering context. Logically, if the standard is workable in one context, it should be workable in another, absent some factor that would render it otherwise. Indeed, this is a prominent theme of the Justices who support judicial review of extreme partisan gerrymanders. 

In Bandemer, all six Justices in the majority signed onto a sharp critique of Justice O’Connor’s opinion (joined by Burger and Rehnquist) arguing that she failed to “point out how the standards that we set forth here for adjudicating this political gerrymandering claim are less manageable than the standards that have been developed for racial gerrymandering claims.” This was also a central point of contention in Vieth. The plaintiffs in that case modeled their claim on the standard adopted in Miller, that the partisan objective was a “predominant factor” in the redistricting process. As the plurality in Vieth forthrightly noted, “Appellants contend that their intent test must be discernible and manageable because it has been borrowed from our racial gerrymandering cases.” Yet, it disagreed, for reasons that Justice Stevens upbraided in his dissent: 

Especially perplexing is the plurality’s ipse dixit distinction of our racial gerrymandering cases. Notably, the plurality does not argue that the judicially manageable standards that have been used to adjudicate racial gerrymandering claims would not be equally manageable in political gerrymandering cases. Instead, its distinction of those cases rests on its view that race as a districting criterion is “much more rarely encountered” than partisanship, and that determining whether race—“a rare and constitutionally suspect motive”—dominated a districting decision “is quite different from determining whether [such a decision] is so substantially affected by the excess of an ordinary and lawful motive as to [be] invali[d].” But those considerations are wholly irrelevant to the issue of justiciability.

Moreover, the stronger the argument advanced by the plurality in Vieth and the majority in Rucho against porting the standards used in the racial gerrymandering cases to the political gerrymandering context, the more they reveal the weaknesses of the doctrine they have developed in the racial gerrymandering context. In Vieth, for instance, Justice Scalia writes on behalf of the plurality that the “predominant motivation” test is “vague . . . when used to evaluate single districts, [but] it all but evaporates when applied statewide.” Any vagueness, however, is built into the notion that courts can discern the predominance of any particular factor in a complex legislative process. Qualitative considerations in legislative processes are not like mechanical inputs into the production of widgets. They inherently resist the quantification necessary to determine “predominance.” 

The argument Justice Scalia develops in the guise of a rhetorical question is especially revealing: 

And how is the statewide “outweighing” to be determined? If three-fifths of the map’s districts forgo the pursuit of partisan ends in favor of strictly observing political-subdivision lines, and only two-fifths ignore those lines to disadvantage the plaintiffs, is the observance of political subdivisions the “predominant” goal between those two? We are sure appellants do not think so. 

The exact same argument could be developed at the scale of a single political district in the racial gerrymandering context, using neighborhoods, census tracts, or other census designated geographies as the smaller scale analogue subdivision. The “predominant factor” test seeks to quantify the inherently qualitative. Any deficiency in the predominant factor test in the partisan gerrymandering context is likely equally applicable to the racial gerrymandering context. 

Finally, Justice Scalia tries to draw another distinction to justify this difference in treatment: 

Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it. 

But this argument utterly ignores the fact that Shaw and its progeny never characterized the pursuit of partisan political advantage as an ordinary (“traditional”) districting principle and also readily acknowledged that virtually all political districting is race-conscious, drawn with the awareness of racial demographics. To that extent, it is impossible to declare that consideration of race is any less “ordinary” than consideration of partisan advantage in the redistricting process. Moreover, in both cases, the argument is that it is only the predominance of this consideration that renders it illegal, not its mere presence. To that extent, Justice Scalia’s comment assumes what it concludes when it declares one legal and the other unlawful. 

Chief Justice Roberts makes a similar leap in logic in Rucho: “A permissible intent—securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent predominates.” If true, it is only because he and his colleagues make it so. If they decided that securing partisan advantage was unconstitutional when it predominates the redistricting process, then it would be so. Both Justice Scalia and Chief Justice Roberts assume that pursuit of partisan advantage is permissible to justify their conclusion that the case lines are different. Further, if the main reason that partisan gerrymandering is non-justiciable is the lack of workable standards, then the constitutionality of such processes is based upon their judgment in that regard rather than an evaluation of valiant, but ineffective, efforts. 

As unconvincing as these arguments are for why the predominance test cannot be reasonably applied to the partisan context, there is an even stronger argument for why partisan and racial gerrymanders cannot be treated in such categorically distinct ways, and it is a point that the dissenters have not developed: the entanglement of partisanship and race in redistricting processes. 

Against a backdrop of even moderate racial residential segregation, racial political polarization in voting patterns combined with the race-conscious districting processes mean that partisan gerrymandering cannot be clearly distinguished from racial gerrymandering. Even if mapmakers completely ignore racial demographics in generating districting options, a redistricting process motivated by the pursuit of partisan advantage is likely to produce maps strikingly similar to those that might occur if the state had “used race as a basis for separating voters into districts.” The next Part of this Article confronts and unpacks this problem.


The entanglement of race and partisanship in political districting processes is rooted in a few critical phenomena. To understand the entanglement problem, we must first examine the concept of polarization, especially as it is applied to politics. 

Polarization is itself an elusive notion, and it is not always clear what it means. Sometimes polarization is invoked to describe the salience of political conflict. This simple characterization is misleading. Although there may be an underlying relationship, partisanship and political polarization are not coterminous. 

The existence of closely contested elections versus landslide elections cannot tell you whether the electorate is polarized or not. Landslides might occur in deeply polarized contexts but in which one group dominates another, as in the Jim Crow South, or low-polarization contexts in which a broadly popular, mainstream candidate triumphs. Similarly, closely contested elections can occur when both candidates are popular or both are deeply unpopular. Aggregate returns are not indicative. 

More often, polarization is used to refer to intensity of disagreement or political conflict. This conceptualization, however, also fails to capture the essence of polarization. Extreme (corrosive or toxic) partisanship can exist in a state of either high or low political polarization. It is the distance or scope of disagreement, not necessarily the intensity of feeling or contestation, that is key to understanding polarization. This is perhaps easier to understand in an economic context. 

Suppose that most people in a certain society are middle-income, with far fewer extremely rich and extremely poor individuals. Such an income distribution would be depicted graphically in the form of what statisticians call a “normal distribution” (or a “Gaussian” distribution) with a bulge in the middle and smaller downward sloping tails toward the edges of the income distribution. In contrast, suppose that most people in another society are either extremely poor or very wealthy, with fewer people as middle-income. This is what statisticians call a bimodal distribution, with bulges towards the ends of the distribution. The mean or median results could be identical in both situations. See Figure 1.


FIGURE 1.  A Normal vs. a Bimodal Distribution

Polarization refers to a process by which a distribution resembling a normal distribution evolves into something more closely resembling a bimodal distribution. Thus, if the income distribution hollows out this way, economists may describe this as “economic polarization.” The same is true of politics. 

As political scientists and surveyors have demonstrated, American political attitudes have indeed become more polarized in recent decades. The Pew Research Center, which conducts regular surveys on political attitudes, found that in both 1994 and 2004, more Americans expressed mixed or centrist political opinions than either conservative or liberal views. By 2014, however, this had reversed, a trend that has continued to the present. 

One particularly important dynamic contributing to political polarization is that Republicans have become more conservative and Democrats have become more liberal. In 1994, only 64% of Republicans were more conservative than the median Democrat, and only 70% of Democrats were more liberal than the median Republican. By 2014, those figures had risen to 92 and 94%, respectively. 

Another form of polarization is racial political polarization. This tends to refer to distinctive partisan preferences between racial groups. Table 1 below indicates the significant racial gaps in support for partisan candidates in presidential elections since 2000. 

TABLE 1.  Republican Support by race in Presidential Elections, 2000–2020

Although there is non-trivial variation between electoral cycles, this table shows consistently high political polarization between racial groups in the popular vote for President (and by implication for political party) over two decades. In presidential elections since 2000, Black support for the Republican candidate narrowly ranges from 4% to 12%. White support ranges from 55% to 59%. Latino support ranges from 26% to 44% (in 2004). And Asian support ranges from 27% to 43%. The white-Black voting gap ranges from 46 to 53 points. Although political polarization by race seems to reach a peak in 2012, the figures as of 2020 are just as large, if not larger, as they were in 2000. In short, racial political polarization has worsened over time, but it has been consistently high throughout the twenty-first century. 

Similar tables could be generated for congressional races, midterm elections, governor’s races, and the like. Political scientists have observed that racial political polarization in the United States has been pronounced at least since 1965. This connection between race and partisan affiliation is described as the “conjoined polarization.” Although this phenomenon might be troubling in its own right, it is not automatically a problem in the context of political redistricting processes. 

If racial groups were evenly distributed across space, then political polarization by race would not factor into political redistricting processes. Gender political polarization offers a contrasting illustration. Gender political polarization has increased significantly in recent years too, and a table similar to Table 1 could be presented illustrating it. But the absence of gender political segregation means that gender is not a meaningful basis upon which to conduct political redistricting processes.

Residential segregation is the critical element that enables gerrymandering. This is true generally, but in the context of racial gerrymandering, racial residential segregation is the critical factor. 

When racial groups are highly concentrated into certain neighborhoods or communities, and there is a moderate to high degree of racial political polarization, then racial gerrymandering is relatively easy. On the other hand, even if the political community is racially polarized, if racial groups are highly integrated across space, then racial gerrymandering would prove extremely difficult to impossible. If either condition is absent, it is not possible to either use race to draw political districts for partisan advantage nor to draw districts for partisan advantage that segregate people into different political districts on the basis of race. Only when both conditions hold does the entanglement problem arise. Table 2, below, indicates the relationship. 

TABLE 2.  Conditions for Entanglement

The entanglement of race and politics in political redistricting processes, then, is not simply a function of the conjoined polarization of racial political polarization and partisan political polarization. It depends on the existence of racial residential segregation as well. 

Unfortunately, racial residential segregation is persistently moderate to high across much of the United States. Using traditional measures of segregation such as the dissimilarity index, national Black-white dissimilarity in 2020 was 55.2, meaning that 55% of Black Americans would have to move into a predominantly white neighborhood to have no racial residential segregation between Black and white Americans. This is in a range social scientists regard as “moderately high.” Asian-white dissimilarity scores are 40.0, and Hispanic-white dissimilarity scores are 45.3, in the moderate range. Even though most of these numbers have improved in recent decades, they demonstrate the persistence of racial residential segregation. In many cities, these figures are much higher.

Other popular measures of segregation are the Isolation/Exposure Indices, which describe neighborhood composition of the typical (median) or average person by race. The “typical” Black and white Americans reside in vastly different neighborhood milieus. As of 2020, the average white resident of a metropolitan area resides in a neighborhood that is 69% white, 9% Black, 12% Hispanic, and 6% Asian. In contrast, a typical Black resident lives in a neighborhood that is 41% Black, 34% white, 17% Hispanic, and 6% Asian. Not only are these demographically different worlds, these figures mean that Black “exposure” to white people is 34, roughly the same level it was in 1940. 

Using a different measure of segregation, the Divergence Index, which can account for multiple racial groups simultaneously and provide a single holistic score for every city or metropolitan region, racial residential segregation appears stubbornly persistent. The Divergence Index compares demographic proportions of smaller geographies to larger geographies and then sums those population-weighted differences to yield a holistic score. Over 50% of cities and metro areas have a higher (more segregated) Divergence score as of 2020 than in 1990. 

Given the central role of residential segregation in facilitating or impeding the manipulation of district boundaries for political advantage, it is strange that prior legal scholarship has under-emphasized or ignored this factor in analyzing gerrymandering cases. Perhaps that is because it is assumed that segregation is a neutral or binary background factor that either exists or does not, and does not actually affect the level of partisan political polarization in a region. If so, there are several findings that challenge this assumption.  

A study conducted by the political scientist Jessica Trounstine identified a direct relationship between racial residential segregation and partisan political polarization. She finds that the relationship between segregation and racial political polarization is statistically powerful: a city in the 10th percentile of segregation has a 35% point divide in racial support for a political candidate, compared to a 63% point divide at the 90th percentile. In other words, the more racial residential segregation, the more racial political polarization. 

Could this difference be explained by the fact that white people vote more conservatively in certain states or regions than others? She tests for this and finds that the relationship between segregation and polarization is unaffected by the conservatism of the local white population. In fact, she found that “cities with more conservative white populations have smaller racial divides.” 

In short, racial residential segregation is not a background condition that exists in a binary state, either existing or not, to undergird the entanglement problem. Rather, it is a condition that interacts dynamically with racial political polarization. A higher level of racial residential segregation seems to coincide with higher racial political polarization. Similarly, racial residential segregation interacts dynamically with partisan political segregation and (by inference) partisan political polarization, as will be shown below. 

To appreciate the full relationship between race and politics, it is important first to emphasize that the critical role of residential segregation in relationship to gerrymandering is general, not specific to racial segregation and racial gerrymandering. Partisan political polarization, by itself, is neither a necessary nor a sufficient condition to enable partisan gerrymandering. Political segregation, however, is necessary. If people of different political preferences or partisan affiliation are evenly distributed across space, regardless of how polarized they may be, it is extremely difficult to draw political districts for partisan advantage. On the other hand, high levels of partisan residential segregation (say, Republicans living in one community and Democrats in another) make it much easier to draw districts for partisan political advantage. For simplicity of illustration, compare hypothetical voting precincts of equal size with voting totals depicted in Tables 3 and 4 below. 


TABLE 3.  Hypothetical #1 Voting Precinct Electoral Results

Although the vote total in Table 3 is relatively close (only a two-point margin between the winner and loser), the precincts are extremely divergent from the aggregate vote total, suggesting a high degree of political segregation between precincts. In contrast, consider this a different election with the same aggregate result in Table 4 below.


TABLE 4.  Hypothetical #2 Voting Precinct Electoral Results

In this case, the winner’s vote margin is the same as in the first case, but the precincts only marginally diverge from the aggregate result. The largest gap for support for Candidate A and the aggregate result is just 4 points, in Precinct 1, compared to a 37–40-point gap between each precinct and the ultimate results in the first case. The first case suggests a high level of political segregation across precincts. If these results were stable over time, and not specific to a particular candidate but consistent across candidates and issues, then we could reasonably describe that region as having a high degree of political segregation. It should be much easier for mapmakers to draw political districts for partisan advantage in cases like the first rather than the second (although a larger number of precincts or sub-precinct level voting data would be needed). 

Unfortunately, the United States has widespread political segregation as well, which maps vividly illustrate. Democrats and Republicans are not just more divergent in their views, they are increasingly residing in different communities. Using this type of data or other geographically disaggregated vote tabulations, it is possible to calculate the degree of political segregation that exists in different regions. Using the formula for the Divergence Index (described above), I have calculated the relative degree of political segregation for different major metropolitan regions of the United States.

Using 2020 presidential election precinct tabulation results, out of the 314 largest metropolitan areas in the United States (those with a population of 200,000 or more), Table 5 below lists the top 20 most politically segregated regions of the United States along with their divergence score. 


TABLE 5.  The 20 Most Politically Segregated Metropolitan Areas in the United States (2020 Presidential Election)

The dynamic of political segregation can also be depicted visually, providing a more intuitive and easily comprehensible approach. Compare maps of Jackson, Mississippi (the most politically segregated metro), with Carson City, Nevada (ranked 273 out of 314), which has one of the lower political divergence scores), in Figure 2, below. The contrast is vivid. 


FIGURE 2.  Political Segregation in Jackson, Mississippi, and Carson City, Nevada


As the maps displayed in Figure 2 illustrate, the metropolitan area of Jackson ranks first in political divergence, indicating the presence of ideological extremes where precincts overwhelmingly voted in favor of one party while neighboring precincts voted in favor of the other party. In contrast, all of the precincts in Carson City approximate the regional average, suggesting a much lower level of political segregation. The high level of political segregation in Jackson makes it especially vulnerable to partisan gerrymandering. This is partly what makes districting such a dilemma in the United States: the high degree of political geographic or residential segregation. 

One of the striking features of the list presented in Table 5, above, is that the vast majority of the most politically segregated regions are in the South (17 of the top 20). Given that region’s racial history, it raises the question of whether there is a relationship between political residential segregation and racial residential segregation in the United States. Figure 3, below, confirms the relationship between the two, as shown in a scatterplot. 


FIGURE 3.  Racial Segregation and Political Segregation in the United States, 2020 (314 Metros)

Figure 3 depicts the 314 largest metropolitan areas in the United States. The horizontal axis indicates the divergence index score (calculated as described above) for political segregation and the vertical axis indicates the relative percentile rank for racial residential segregation using the same formula but with data from the 2020 decennial census. The scatterplot indicates a clear positive relationship, with a 0.50 correlation between the two variables. 

Not only does this analysis suggest a relationship between the two phenomena, but it also means that where racial segregation is higher, partisan gerrymandering should be easier. Conversely, where partisan segregation is higher, racial gerrymandering should be easier. In short, they go hand in hand, but in a dynamic relation. The problem lies in their coincidence. This is the crux of the entanglement problem, not the simple fact of conjoined polarization between race and politics. 

Whether the context is partisan gerrymandering or racial gerrymandering, the active ingredient is segregation, not polarization. Partisan gerrymandering only requires some degree of political segregation. Racial gerrymandering, however, requires both racial political polarization and racial residential segregation. Prior legal scholarship treats segregation as the backdrop condition and conjoined polarization as the central or proximate problem when the truth is the opposite. 

In practical terms, the persistence of racial political polarization means that the strong correlation between political segregation and racial residential segregation easily facilitates both racial and partisan gerrymandering in ways that are essentially indistinguishable. State officials can draw maps at a hyper-granular level that may relocate a small number of people from one district to another, with full awareness of their race and the fact of conjoined racial identity with partisan preference, and nonetheless claim that the decision was based on partisan motivations. In other words, racial residential segregation enables partisan gerrymandering that will result in the political segregation of people between districts on the basis of race. Even if the map-makers were to scrub all data regarding race from their software, a map drawn on partisan or other non-racial characteristics could appear objectively indistinguishable from maps drawn in cases like Shaw. 

This problem is not speculative or theoretical. The Supreme Court has already heard cases touching on this problem. In oral argument in Wittman v. Personhuballah, Chief Justice Roberts asked “if race and partisanship are co-extensive, which one predominates?” In that case, several Republican members of Congress appealed a lower court’s decision to strike down a redistricting plan it found to be based on race. This question led to a brief dialogue among the Justices and the lawyer for the original plaintiffs regarding this issue, but the case was ultimately dismissed for lack of standing among the members of Congress to bring their appeal.

In another case decided that same term, Cooper v. Harris, the Court acknowledged that many of the Shaw considerations (compactness, for example) used to assess whether race predominated become less probative when the state raises the defense of partisanship. As it explained, “political and racial reasons are capable of yielding similar oddities in a district’s boundaries. That is because, of course, ‘racial identification is highly correlated with political affiliation.’ ” In that case, the Court rejected the claim that partisan goals are a complete defense to racial gerrymandering claims. As it explained, the predominance “inquiry is satisfied when legislators have ‘place[d] a significant number of voters within or without’ a district predominantly because of their race, regardless of their ultimate objective in taking that step.” 

But this guidance merely sidesteps the more difficult question of how to determine whether a legislature’s districting decisions were “because of race” in such cases, and assumes that racial motives can be disentangled from partisan ones (either as a means or an end). Indeed, the entire concept of “predominance” assumes that the factors considered by entities charged with redistricting, and which are being reviewed by courts, are separate and independent elements. Because of the difficulties introduced by entanglement, lower courts may be hesitant to rule that race “predominates” when race and partisanship are highly entangled or when the state supplies reasons to believe that any apparent use of race was merely partisanship. 

Again, this is not a speculative concern. The NAACP Legal Defense Fund and the Lawyers Committee for Civil Rights brought a suit against Georgia in 2017 alleging that a mid-decade redrawing of political districts was both a racial and political gerrymander. The district court acknowledged that ascertaining the existence of a racial gerrymander was “particularly hard to do when the State offers a defense rooted in partisan gerrymandering, as it did here. We did not move these voters because they are black, the State tells us. We moved them because they were Democrats.” The court ultimately sided with the state for that reason. 

Experience demonstrates that this epistemological problem created by the entanglement of racial and partisan gerrymanders already exists and may be intensifying. The provision of block level census data following the 1990 census meant that state legislatures could draw more fine grain political districts based on race than was ever possible before using computer programs. Indeed, the Court confronted this fact in Bush v. Vera, in which the Court noted that the computer program “REDAPPL enabled districters to make more intricate refinements on the basis of race than on the basis of other demographic information.”

This technology has only improved in the intervening decades. It is now possible to generate thousands of potential maps at a keystroke with computer processing and programs that draw from large voter or census files. Large data files can be cross-referenced not only to generate demographic profiles, but also psychographic information, such as predicting propensity to vote, donate money, or even respond to certain campaign communications.

Upon the death of a North Carolina Republican strategist involved in redistricting efforts, his daughter made public his personal computer files against the wishes of the party and company he worked for. The trove contained thousands of documents detailing the various ways that he sought to generate political advantages for his clients, describing gerrymandering as legal vote stealing.

In Vera, however, Justice O’Connor stated that “[i]f district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify.” Although likely dicta, this approach nonetheless does not resolve the issue because, if there is a perfect identity or correspondence of race and partisanship, how is a court supposed to judge whether the lines were drawn “because of political affiliation” or “because of race”? If a state legislature is trying to conceal its racial intentions, it would simply develop a record of partisan purposes and other traditional districting considerations. The entanglement of race and partisanship would then allow state legislatures to subvert the Constitution. The vastly divergent standards for both forms of gerrymandering makes it even more difficult to regulate this problem. There are, however, solutions. 


This Article argues that the wildly divergent standards established by the Supreme Court governing partisan political gerrymandering and racial gerrymandering claims are untenable. Justices across the ideological spectrum agree that the use of race in drawing political districts may run afoul of the Constitution, but the Court’s extremely divergent rules regulating gerrymandering cases make it extremely difficult, if not impossible, to know whether race has been used or not. In too many contexts, partisan political gerrymanders will entail conduct that violates the principles and standards established by the foundational racial gerrymandering cases, or run so closely up to them that any attempt to fully disentangle partisan ends from racial ones is likely to be hopelessly futile or end up subverting the Court’s racial gerrymandering jurisprudence by allowing racial gerrymanders to escape under the cover of partisanship. 

Beyond the categorical differences grounded in the Court’s precedent regulating the use of race at a higher level of judicial review than most other classifications, the Court has tried to manage the entanglement problem in two steps: first, by recognizing that all political districting processes are inherently race-conscious, as they are conscious of other demographic and community characteristics. Thus, the Court has distinguished between awareness of race and actions or policy decisions that use race in the sorting of people into different districts. The Court has held that it is the latter that violates the Constitution, not the former. 

Second, by requiring that racial considerations actually “predominate” other factors, the Court has drawn a line between impermissible consideration of race and other ordinary or “traditional” considerations such as compactness, contiguity, community boundaries, and so forth. It is notable that in the listing of such ordinary considerations that partisan political advantage is never mentioned or listed. And this is presumably not simply because a bare-faced partisan consideration is unseemly, but because it was not considered by the Court (at least in those decisions) as a regular or ordinary consideration in the districting processes. Nonetheless, the Court’s jurisprudence prompts an objective, factual inquiry into whether race was in fact used or not. 

Unfortunately, several demographic factors are converging in a way that makes it much more difficult—if not impossible—to delineate between race and partisanship as a consideration. First, political polarization appears to have increased in recent years. Second, political segregation is highly visible and becoming more pronounced as well. Third, racial political polarization has increased markedly in recent decades. The interaction of these three factors, on top of a fourth—the persistence of racial residential segregation—means that partisanship and race are highly correlated in a way that makes partisan districting largely and increasingly coterminous with racial districting. In simplified terms, “conjoined polarization” and racial residential segregation interact to create the conditions that entangle race and partisanship in political redistricting processes. 

That this is a practical problem is evidenced by the fact that many cases heard by the Supreme Court in recent years feature both claims, whereas that would have been anomalous even a few decades ago. With the Court shutting the door on partisan gerrymandering claims, it seems increasingly likely that suits designed to curb the excesses of partisan gerrymandering will be brought under the color of racial gerrymandering. Thus, the Court will eventually need to squarely confront and address this problem. 

One possible solution is to carve out an exemption for racial gerrymanders that appear to be largely or entirely based on partisan motives, as Justice O’Connor intimated in Vera, but to extend the exemption to cases in which the objective use of race clearly “predominates.” Under this approach, mapmakers would be permitted to use race in districting processes as long as their purpose was purely partisan. Under this approach, partisanship would be a complete defense to racial gerrymandering claims. 

This approach would solve the smaller problem of the difficulties lower courts confront disentangling race and partisan motivates, but it would leave intact the larger problem of allowing racial gerrymanders to persist under the cover of partisanship. To that extent, this is only a partial solution or non-solution, because it would potentially obliterate the racial gerrymandering claim and undermine the constitutional prohibition against the use of race in policymaking in many ordinary cases. Under a rule such as this, any egregiously racially segregated political district could be justified on the basis of mere partisanship. The obvious exception would be cases in which state legislatures are seeking to create “majority-minority” districts under the VRA, because those could not plausibly be defended on partisan-only grounds. This approach would clearly violate the Court’s prevailing anti-classification jurisprudence and the principles and spirit of Shaw and its progeny’s rules against permitting state legislatures to sort people into one district or another on the basis of race. 

A second possible solution would be to create an exemption in the opposite direction: a supplement could be drawn to the rule that partisan gerrymanders are non-justiciable if partisan purposes overlay or are essentially indistinguishable from racial considerations. In such a case, partisan gerrymanders could be swept into the racial gerrymandering line, even though it would be difficult or implausible to assert that race “predominates.” This is essentially the tack the Court appeared to take in Cooper v. Harris in its 2016 term, prior to the Court’s more recent decision that partisan gerrymanders are non-justiciable in Rucho.

The NAACP Legal Defense Fund’s president and director-counsel, Janai Nelson, has suggested an approach along these lines. The approach would shield against rearguard incursions into racial gerrymandering from the partisan direction. This option is most consistent with the Court’s anti-classification jurisprudence: any sorting or segregation of people into different political districts based on race violates the Constitution, even if it cannot be said that race “predominates.” This approach drives the presumptive rule against the use of racial classifications to its logical endpoint. 

Although requiring a tweak to the Court’s racially gerrymandering jurisprudence, the Court can easily justify the use of a threshold test less than “predominance” when two factors are so tightly entangled that “predominance” becomes nonsensical. In such cases it is either impossible for race to “predominate” because partisan considerations are co-extensive with race or, even if they are greater, it is because their correspondence renders the possibility of calculating predominance by disaggregating and weighing the relative influence of each factor or consideration impossible. 

A third possible solution to the entanglement problem is to reverse course on partisan gerrymanders and declare that they are justiciable. Aside from the unlikely chance that the Court will revisit, let alone reverse, it’s recent decision in Rucho, even if it were to do so, there remains the challenge of defining the standard upon which they can or should be reviewed. 

The most obvious and straightforward option is the predominance test—to inquire whether partisan considerations “predominate” over other ordinary districting considerations. In cases where race and partisanship are entangled, this could help solve the larger problem of allowing racial gerrymanders to escape under the cover of partisanship, but it does not actually solve the epistemological problem of how courts may distinguish between entangled factors or inputs. Thus, it would have the inverse effect of the first possibility, which is to help address the larger problem, but leave the smaller one intact. 

Moreover, this possibility remains only a partial solution to the larger problem. Even if the Supreme Court were to allow courts to review partisan gerrymandering claims, it is unlikely that such partisan gerrymanders would be reviewed at the exactingly high level of scrutiny as racial classifications are. Thus, there is still some risk present that racial gerrymanders will escape regulation in the guise of partisanship due to the gap in the standards of review.

This third option, however, although requiring a reversal of recent precedent, is at least more logically consistent with the idea that these are categorically distinct claims arising from different case law and constitutional concerns. It renders the entanglement problem less urgently in need of resolution since the more extreme partisan gerrymandering cases would be regulated through a parallel structure under (presumably) rational basis review. 

This approach has several other meritorious considerations in its favor, especially its potential grounding in various aspects of constitutional jurisprudence. Some versions of this approach, for example, naturally conform to the paradigm famously known as “Carolene Products footnote four.” This famous footnote in Constitutional Law maps neatly to the entanglement problem at issue in this Article. That is because at the heart of this footnote are issues of political process and racial equality and their interrelation, the same issues here. As the Court said in that famous footnote: 

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. . . . Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Carolene Products footnote four has been called a “paradigm” within equal protection jurisprudence on account of the fact that it provides a coherent and comprehensive roadmap for judicial review. It is not just that the footnote addresses one possible way of dealing with laws that affect access to the political process, like political redistricting does, but it also specifically deals with the intersection of race and political access: suggesting that laws which impede racial minorities access to the political process should be reviewed more closely. 

The Equal Protection Clause arguably provides a sufficient basis by itself for establishing a rule against partisan gerrymanders: they violate fundamental democratic principles such as those that motivated the Court to rule, in the early 1960s, that political districts should be of equal size. They violate majority rule—what Madison called the “fundamental principle of free government” in Federalist No. 58 and Hamilton called the “the fundamental maxim of republican government” in Federalist No. 22. Whether permitting a minority to entrench itself through the manipulation of district boundaries or by manipulating the number of voters in each district, the result can be the same and does violence to the principle of “one person, one vote” either way. 

A claim rooted in equal protection could narrowly assert that permitting extreme partisan gerrymanders would violate a person’s right to be treated equally by law or more broadly assert that it would also hinder access to both the political process and the ability to use that process to remedy unfair or unjust legislation. But even if the Equal Protection Clause itself, or some broader more synthetic reading of it, Carolene Products, or even related associational claims grounded in the First Amendment are part of the foundation for rendering partisan gerrymandering claims justiciable, there is another constitutional provision which has lain dormant but could be potentially enlisted to this cause: the Guarantee Clause. 

The Guarantee Clause requires the United States guarantee to the states a republican form of government. Although rarely invoked, the prevailing consensus is that this Clause requires majority rule and that representatives serving in state governments be selected by elections. In other words, it is a guarantee to the citizens of those states (and of the nation) that each state government must be republican in form. This clause might be the basis for challenges to features of various state governments that are anti- or un-democratic. In addition to a formal recognition of the problem of entanglement in the gerrymandering cases, a revival of the Guarantee Clause could provide an easily understandable basis for reversing or excepting Rucho.

The problem here is that Supreme Court precedent does not allowed federal courts to entertain claims brought under the Guarantee Clause, thus far. In 1849, and again in 1946, the Supreme Court ruled that claims under this clause are non-justiciable. Prominent and notable jurists, however, would have held otherwise. In his courageous and lonely dissent in Plessy v. Ferguson, the first Justice Harlan would not only have held that the segregative railway statute adopted by the state of Louisiana and reviewed in that case violated the Thirteenth and Fourteenth Amendments to the Constitution, but also the Guarantee Clause. As he explained: 

Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

The aforementioned Supreme Court decisions, moreover, occurred prior to the Court’s ruling that districting cases are justiciable in Baker v. Carr. And in any event, these decisions cannot be based on the meaning of that clause as understood by its framers. 

Federalist No. 9 explains that the “principles” of republican governance are “now well understood,” and in addition to the fundamental majoritarian principle, they include: (1) “[t]he regular distribution of power into distinct departments”; (2) “the introduction of legislative balances and checks”; (3) “the institution of courts composed of judges holding their offices during good behavior”; and (4) “the representation of the people in the legislature by deputies of their own election.” 

Moreover, Federalist No. 39 dealt specifically with the meaning of republican government. As Madison explained there, “we may define a republic to be . . . a government which derives all of its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure for a limited period, or during good behaviour.” In other words, it is a government, in the words of Lincoln, “of, by, and for the people.” Madison goes onto explain that 

[i]t is essential to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. 

Critics might note that, despite Madison and Hamilton’s declarations on the centrality of the principle of “majority rules,” they and their colleagues seemed unconcerned with the use of districting for partisan advantage in terms of either unequal size of districts or manipulation of lines, or else they would have argued against it (as they did against equal suffrage for states) or proposed or included provisions in the Constitution or in their respective roles in the federal government against it. In Part II, a number of possibilities were presented as to why Madison and Hamilton may not have introduced measures relating to this potential problem. A few more may now be considered.

First, any interpretative methodology assessing the Guarantee Clause would have to account for the fact that many categorical exclusions for voting existed at the time of the framing of the Constitution that are now prohibited, including those on the basis of sex, race, and class (through the Fifteenth, Nineteenth and Twenty-Fourth Amendments, respectively). Thus, there are textual reasons to “update” any originalist understanding of the Guarantee Clause based upon the text of the Constitution itself, as amended. After all, it has already been observed that the modern Supreme Court has repeatedly struck down districting plans with population disparities in percentage terms far less than those observed by Madison and Hamilton in The Federalist Papers. 

Second, the framers failed to anticipate the extent to which partisanship would manifest in the federal councils and the harmful effects thereof. There is no reason to believe that they should devise measures to address problems they lacked the foresight to see. And, by their own accounts, the precautions and safeguards that the framers believed would curtail the harmful effects of partisanship were based on assumptions and premises that proved fallacious or were quickly refuted by experience as political parties organized themselves in the federal councils. 

To be clear, the framers were well-aware of the problem of partisanship. Having observed it within the states and other republics, Alexander Hamilton referred to this problem as “the diseases of faction” and the “demon of faction,” and James Madison called it “mischiefs of faction” and the “rage of party.” What they underestimated was the degree to which political parties would become the primary organizing forces to frame political discourse and focus policy debate in the federal government. 

As Madison and Hamilton explained throughout The Federalist Papers, the framers believed that the size and diversity of peoples and interests represented in the national government would ameliorate the effects of faction as observed in the state governments. As Madison concluded in Federalist No. 10, the “variety of sects dispersed over the entire face of [the confederacy of states] must secure the national councils against any danger from that source.” Hamilton arrived at similar conclusions in Federalist Nos. 60 and 61, where he wrote that “a diversity of local circumstances, prejudices, and interests” would make it unlikely that a “predominant faction” would prefer a particular class of electors over another. Not only that, Hamilton felt that the diverse manner in which the various federal branches would be populated would safeguard against this problem, such that he concluded there is “little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”

If at any moment the quantity of highly competitive national political parties had been greater and more numerous or if political parties had not acquired so much significance in organizing political interests at a national level, then this conclusion might have proven correct. But by the end of the first decade of the government’s operation under the Constitution, the problems of partisanship were already manifest to such an extent that it was one of the principal subjects of concern in George Washington’s 1796 Farewell Address. Far from leaving office assured with his good works and sanguine on the young nation’s prospects, he sounded an alarm. 

In this regard, any originalist argument would be incomplete without considering George Washington’s remarks in his Farewell Address, which were drafted with input from Hamilton and Madison, his top advisors. The degree to which they underestimated the corrosive effects of toxic partisanship—what they called the “baneful effects of the spirit of party”—is clear from the substance of the address.

Having observed the emergent dynamics of partisanship firsthand as the nation’s first chief executive, Washington expressed a deep-seated fear that political parties presented a danger to the stability of the young republic, and potentially an existential threat. The Senate Historical Office characterizes his remarks concerning the “dangers of parties in state” as reflecting the view that political parties “carried the seeds of the nation’s destruction through petty factionalism.” The remarks specify, in serial form, the harmful effects that flow from extreme partisanship. Among them:

• “It serves always to distract the public councils and enfeeble the public administration.”

• “It agitates the community with ill founded jealousies and false alarms,”

• “kindles the animosity of one part against another,”

• “foments occasionally riot and insurrection.”

• “It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.” 

If anything, the experience of the last few years amply illustrates these dangers, especially in the administration of President Donald Trump, which experienced arguably each of these effects, most obviously in the Ukraine scandal that led to the first impeachment, the interactions with Russian officials that led to the Mueller investigation, and the riot and insurrection at the Capitol on January 6, 2021. 

Extreme partisanship has fostered a visceral antipathy against the other party (what political scientists call “negative partisanship”) often for no other reason than the “animosity of one part against another,” such that even bipartisanship on broadly popular legislation (such as when Republicans in Congress voted for the 2021 infrastructure bill) is viewed within the faction as a violation of partisan solidarity. 

And, in the most extreme case, above all the previously listed concerns, Washington asserted that partisanship could lead to the “destruction of public liberty” in this way: 

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.

Some political prognosticators and military leaders have warned that some version of this frightful vision might be realized in the aftermath of the 2024 election. 

Critically, however, Washington also characterized the dangers of extreme partisanship in geographic terms, which he called “the danger of parties in the state, with particular reference to the founding of them on geographical discriminations.” Although he may well have been referring to the sectional divide between the North and the South, the specific formulation is a perfect fit for the excesses of gerrymandering. It accurately characterizes the manifestation of partisanship through gerrymandering, which is a process of making geographic discriminations.

Whether a consequence of the framers’ underestimation of the ultimate role of political parties, the extent to which partisanship would infect the federal government, or some other reason, the Constitution itself is silent in regards to the problems posed by extreme forms of political districting. But that does not mean that the framers left the political community helpless, even in the absence of an explicit constitutional provision adopted to solve this problem. Provisions like the Guarantee Clause are open-textured specifically to empower that political community to address problems such as this, empowering both Congress and the courts to regulate such practices as partisan districting as circumstances may necessitate. 


Unlike the canonical and venerated document that it is regarded as today, the United States Constitution was recognized by its framers as a political experiment of uncertain prospects. To give the political community governed by it the flexibility to make it work in practice and tailor it to exigencies without violating its text or spirit, the framers provided an amendment process to correct for unforeseen flaws or circumstances and used terse, open-textured language amenable to varying shades of interpretations in enumerating certain powers, rights, or prohibitions. 

Nonetheless, the Constitution was chiefly designed to overcome the deficiencies of the Articles of Confederation and other problems that had plagued the young republic. Consequently, it is silent on many issues that subsequently bedeviled the nation governed by it in intervening centuries. Two notable examples that frustrated subsequent generations in the first half of the nineteenth century were the definition of national citizenship and its relationship to state citizenship, and in the latter half of the twentieth century and early twenty-first century, the issue of abortion. 

Because the original Constitution did not explicitly indicate how federal citizenship was defined or acquired, the Supreme Court ultimately decided the question of whether persons of African descent were or could become United States citizens, which it did in the most notorious case of Dred Scott v. Sandford. The Court’s decision was reversed by opening line of the Fourteenth Amendment. Similarly, the issue of abortion has proven to be highly divisive and one of the most deeply contested legal matters of the last fifty years. Advocates and jurists often look beyond the explicit text to the structure of the Constitution and the history and traditions of the republic at certain points in time to try to resolve these matters.

Unfortunately, extreme manipulation of political districting processes is another issue upon which the Constitution remains explicitly silent. This does not mean federal officials are powerless to address it. Constitutional text provides indirect solutions, such as the affirmative powers afforded Congress under the Elections Clause to “make or alter” the laws for elections to the federal legislature and implicit protections made by inferences drawn from other provisions, such as the Equal Protection Clause. Nonetheless, as a result of the lack of constitutional specificity regarding this issue, certain problems generated by this underlying phenomenon are treated differently, depending on the circumstances, the class of persons most affected, or the form of the districting problem. 

This Article focuses on the problem of the entanglement of race and partisanship in the judicial review of gerrymandering claims. It conducts a brief history of gerrymandering, examines the divergent lines of cases, reveals the factors that contribute to the growing problem of gerrymandering, including the relationship between political segregation and racial residential segregation, and closes with a survey of possible solutions grounded in the constitutional text and structure. 

Although Congress could potentially pass laws curbing gerrymandering in the states, and would have the authority to do so under Article I, Section 4, the core of the problem of gerrymandering is that it violates what Madison called the “fundamental principle of free government”—that of majority rule, and therefore should be within the cognizance of the Constitution, not ordinary legislation, to resolve. This is true even though the Constitution is silent on it, an omission that is adequately compensated for by the applicability of indirect provisions that the framers included such as the Guarantee Clause and subsequent Amendments, most notably the Fourteenth, requiring equal protection of the law. 

Blame for underestimating the rise of political parties and the harmful effects of extreme partisanship cannot be entirely placed on insufficient foresight of the framers. A number of developments have contributed to the intensity of political partisanship in the federal government, including the enlargement of the sphere of national politics, the evolution of the information and media environment, and technological developments. 

There is no way that the framers could have fully anticipated the extremities toward which political districting processes designed for partisan purposes might distort many of the principles of representative government that they sought to institutionalize. In particular, they could not have anticipated the development of modern technological tools such as computer databases and programs such as Geographic Information System (“GIS”) technology that would easily permit state legislators to essentially select their voters rather than the other way around. But the framers’ insufficient foresight does not leave us helpless.

Whether the remedy lies in an act of Congress or the courts applying a synthetic reading of the Constitution as a whole, Carolene Products footnote four, the Guarantee Clause, or a novel reading of the Equal Protection Clause, partisan gerrymandering is a problem for our health of democracy that requires resolution. It is a problem in its own right because it undermines the values and foundation of the republic, and because it causes and results in the racial segregation of voters in clear violation of the Constitution without necessarily running afoul of the standards established by the Supreme Court to secure those protections. 



96 S. Cal. L. Rev. 301


* Stephen Menendian is the Assistant Director at the Othering and Belonging Institute at University of California, Berkeley. The author would like to thank john powell and Dan Tokaji for their insights on this critical issue, Chris Elmendorf and Joshua Clark for their invaluable expert feedback on drafts of this Article, Samir Gambhir and Peter Mattingly for their contributions to the underlying research regarding segregation and assistance in developing the maps and scatterplots, Wenqi (Michael) Xu, Sara Osman, and Yemaj Sheik for their general research and citation assistance.

Get Out the Vote (or Else): Testing the Constitutionality of Compulsory Voting

Note | Constitutional Law
Get Out the Vote (or Else): Testing the Constitutionality of Compulsory Voting
by Ryan Eason*

94 S. Cal. L. Rev. 963 (2021)

Keywords: Election Law, Voting, Constitutional Law

The Preamble to the United States Constitution envisions a nation governed by “We the People.”1 The United States has never been governed by the people, however. Instead, the United States is and always has been run by the voters. Voters are wealthier, more educated, older, and whiter than “the People.”2 These differences have consequences. Since voters hold the key to lawmakers’ job security, representatives are often more responsive to voters’ interests than nonvoters’ interests.3

The reason voters differ so much from the population4 as a whole is that voter turnout is consistently low in the United States. In federal midterm elections since the passage of the Voting Rights Act in 1965, voters have only constituted an average of 41.4% of the population.5 Even in presidential elections, in which voters usually do make up a majority of the population, the majority is usually bare.6 Consequently, the winners of those elections

are chosen by nowhere near a majority of the population. For example, President Donald Trump was elected by roughly 27% of the population in 2016.7 Even President Joe Biden, who won the largest number of votes for a presidential candidate in United States history, was elected by roughly 34% of the population in 2020.8 These low voter turnout figures set the United States apart from most of the developed world.9

Of course, low levels of voter turnout do not delegitimize elections in the United States. Other major democracies also do not achieve full voter turnout.10 Electoral legitimacy would be impossible to realize if it depended on full voter turnout in every election. However, many argue that low voter turnout in the United States is a serious problem.11 To the extent a country values majoritarianism,12 its elections arguably serve that purpose better

when the gap between its voters and its population is minimized. One day, Congress may agree with this argument. Therefore, this Note imagines a world in which Congress takes a decisive step to fix low voter turnout: compel every eligible American adult to vote.13

Congress is unlikely to pass such a transformative piece of legislation in the near future. However, it might enact compulsory voting someday. Far from being a fringe or radical idea, it has been implemented by several democracies,14 and it has been successful where actually enforced.15 Indeed, commentators often cite compulsory voting as a solution to the United States’ low voter turnout problem.16 Compulsory voting legislation has even been recently proposed at the statewide level in California.17

But if Congress decided to pass compulsory voting legislation, it would face a substantial and unanswered question: would it be constitutional? This Note intends to answer that question by analyzing how compulsory voting would fare in various constitutional challenges.18 Part I explores how compulsory voting might be structured in the United States if Congress based its legislation on Australia’s. Part II addresses the most likely constitutional challenges to compulsory voting. The structural argument addressed in Section II.A concerns whether Congress has the constitutional power to pass compulsory voting if it conflicted with state legislation. I conclude that it does because the Elections Clause gives Congress the power to supersede

state election regulations, even when states have not acted. The rights-based arguments addressed in Section II.B concern whether compulsory voting would violate the right not to speak or a potential right not to vote. I conclude that while the voting is expressive conduct, compulsory voting would not violate the First Amendment by compelling it. I also conclude that there is likely no such thing as a right not to vote. However, if there is a right not to vote, the interests served by compulsory voting would outweigh the light burden upon it. Finally, Section II.C argues that compulsory voting legislation could be legally justified as a tax.


*.2021, University of Southern California Gould School of Law. This Note has benefited greatly from the guidance of Professor Sam Erman; the support from my fiancée, Katie Bayard; and the astute editing of my colleagues at the Southern California Law Review.

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Technology-Enabled Coin Flips for Judging Partisan Gerrymandering – Postscript (Comment) by Wendy K. Tam Cho

From Volume 93, Postscript (May 2019)


 Technology-Enabled Coin Flips for Judging Partisan Gerrymandering

Wendy K. Tam Cho[*]

This session, the Supreme Court heard oral arguments in a set of twin partisan gerrymandering cases, one brought by Democrats, Rucho v. Common Cause,[1] and the other by Republicans, Benisek v. Lamone.[2] This was not the first time the Court has considered this issue: partisan gerrymandering has now come before twenty-one Justices of the Supreme Court, without resolution. Over the history of these cases, it has remained uncontroversial that the Elections Clause in Article I, Section 4 of the U.S. Constitution gives states the right, and indeed wide latitude, to prescribe the “times, places and manner” of congressional elections. That includes the drawing of electoral boundaries. At the same time, the power of legislatures is not unfettered.  And, it is the role of the Supreme Court to guard against unconstitutional legislative acts.

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.[3] 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.”[4]

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.”[5] Justice Kavanaugh replied, “when you use the word ‘extreme,’ that implies a baseline. Extreme compared to what?”[6]

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?

I. The Promise of Technology

Fifteen years ago in Vieth, Justice Kennedy wrote the following:

Technology is both a threat and a promise. On the one hand, if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow. On the other hand, these new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties.[7]

Indeed, more sophisticated technology has fueled the threat of gerrymandering. With the aid of computers and advanced software, map drawers now have the ability to adhere tightly and meticulously to legal districting practices while simultaneously and surreptitiously entrenching power. Moreover, computing power and software sophistication are only improving over time—a fact certainly not lost on Justice Kagan, who last year wrote in Gill v. Whitford, “[t]he 2010 redistricting cycle produced some of the worst partisan gerrymanders on record. The technology will only get better, so the 2020 cycle will only get worse.”[8]

In short, the threat of technology for gerrymandering is real and looms more ominously daily. However, it appears that the Justices are now seeing a possible glimmer of hope: the day of technology’s promise to help identify and curb gerrymandering may have arrived, or is, at least, arriving.

The Court now appears to accept the idea that in addition to aiding nefarious intent, computers may also help detect such intent in litigation through generating large numbers of maps that embody only the neutral districting criteria. When humans are drawing maps, it is difficult to enumerate all of the criteria that are considered for a particular map. However, with a computer, the criteria are well-specified and known. One must explicitly choose which criteria to include and which to exclude. At oral argument in Rucho, Justice Alito acknowledged as much:

If you make a list of the so-called neutral criteria—compactness, contiguity, protecting incumbents, if that’s really neutral, respecting certain natural features of the geography—and you have a computer program that includes all of those and weights them all . . . at the end, what you get is a large number of maps that satisfy all those criteria. And I think that’s realistic. That’s what you will get.[9]

The Court also seems to accept that one could use such a set of maps as some sort of “baseline.” Justice Kagan stated that “[t]he benchmark is the natural political geography of the state plus all the districting criteria, except for partisanship.”[10]

II. The Barriers to Connecting Technology with the Law

While the Court appears to be in agreement that a baseline of non-partisan maps can be created, it struggles with a way to incorporate this baseline into a judicially manageable standard that allows us to identify a partisan gerrymander. For the Justices, there is not yet a satisfactory connection between the baseline that they believe the technology can now create and the requirements of the Court for a judicially manageable standard.

There appear to be two main barriers. The first is what they see as a connection to proportional representation (PR). Justice Gorsuch seems particularly suspicious that the baseline of non-partisan maps provides nothing more than a test for proportional representation in disguise. When he sees the range of partisan outcomes that emerge from the baseline of non-partisan maps, he is not seeing how one can use those maps to identify a partisan gerrymander. He envisions that there must be a “cutoff” where partisanship becomes excessive. But, to identify that point, Gorsuch asks, “aren’t we just back in the business of deciding what degree of tolerance we’re willing to put up with from proportional representation?”[11] Justice Alito is similarly perplexed about how one might utilize the baseline set of non-partisan maps:

[I]f you have 24,000 maps that satisfy all of the so-called neutral criteria that you put in your computer program, don’t you need a criterion or criteria for deciding which of the 24,000 maps you’re going to choose? . . . [I]mplicit . . . is the idea, is it not, that you have to choose one that honors proportional representation? You have no other criteria for distinguishing among the 24,000 maps.[12]

While large deviations from PR may raise suspicion and seem intuitively problematic to the public eye, the judiciary is unequivocal that PR is inconsistent with geographically defined single member districts. Hence, this seeming connection to PR is obviously problematic given the long history of the Supreme Court’s emphasis that our system of government is explicitly not one of proportional representation. To be sure, any judicial standard cannot simply require PR or an outcome “close to PR.”

A second issue is that the Constitution grants wide discretion to the states in devising its electoral maps. Neither the appellants nor the appellees in North Carolina’s redistricting case disagree. The disagreement, rather, stems from how this wide discretion affects the use and interpretation of the baseline maps.

The challengers argue that “[t]he legislature has wide discretion, as long as it does not attempt to do two things, dictate electoral outcomes, [or] favor or disfavor a class of candidates.”[13] It is true that the legislature has wide discretion so long as it does not violate the Constitution. However, the challengers did not articulate a standard for how we would know that the legislature is dictating electoral outcomes other than to say that the legislature’s map has a partisan effect that is not one of the common effects in the baseline set of maps. The challengers’ argument, in essence, is that being on the tail of the distribution (i.e., producing an unusually uncommon partisan effect) is de facto evidence of the state overstepping its discretionary powers. We have already discussed Justice Gorsuch’s objection to this articulationthis characterization of unconstitutional gerrymander is conceptually indistinguishable from a PR standard.

Within the specific facts of the North Carolina case, the challengers also argue that statements made by the legislature show that partisanship was the predominant factor and a “material factor” in creating the map. In particular, David Lewis, a Harnett County Republican and the House redistricting leader at the time, stated that the map was drawn “to give a partisan advantage to ten Republicans and three Democrats because [I do] not believe [it’s] possible to draw a map with eleven Republicans and two Democrats.”[14] Chief Justice Roberts did not take issue with the particular facts present in the North Carolina case, but also did not see how they would then translate into a general principle to govern how the baseline set of maps would help identify the degree of partisanship utilized in future partisan gerrymandering cases.

The state of North Carolina, on the other hand, points out that all of the baseline maps are properly conceived of as non-partisan since they were all drawn without partisan information. Accordingly, they say, all of these maps would thus be within the legislature’s discretion to enact. The state looks at the large set of baseline North Carolina maps “with partisanship taken out entirely,” and observes that “you get 162 different maps that produce a 10/3 Republican split.”[15] From here, they argue that when the legislature is devising its particular map, it is “about as discretionary a government function as one could imagine.”[16] In other words, the legislature cannot be dictating outcomes when no partisan information is even being utilized. Therefore, the argument goes, all of these declaredly non-partisan maps and thus their partisan effects fall within the legislature’s discretion.

The dispute here is about what the tails of the distribution of partisan effects from the baseline set of maps indicate. Do they indicate “dictating outcomes” as the challengers argue or are all of the maps, tail or not, within the legislature’s “discretionary powers” as the state argues? More importantly for the Court, how does one distinguish “dictating outcomes” from “discretionary power?”

In short, the Court is not skeptical about whether a baseline of non-partisan maps can be created. It is skeptical about whether it can reconcile a baseline they believe exists with the wide latitude conferred to the states in the Elections Clause and our system of representation, which is explicitly not proportional representation.

III. A Judicially Manageable Standard

I argue that when the application of the “new technology” is properly conceived and executed, neither the issue of proportional representation nor our commitment to states’ rights in prescribing the “times, places and manner” of congressional elections remains problematic. In fact, both are part and parcel of a judicially manageable standard.

First, let us establish the relationship of PR with the baseline set of maps. Because partisan information is necessary to determine PR and no partisan information is used in the construction of the baseline maps, we can say, unequivocally, that PR plays no role in the construction of the baseline set of maps. Instead, the computer-drawn maps are constrained only by the locations where the particular people in the state reside and the neutral map-drawing criteria.

If partisans are randomly dispersed throughout the state and there are roughly an equal number in each party, PR is, unsurprisingly, a natural outcome. When partisans cluster geographically, this type of political geography undermines PR in the sense that a “natural outcome” would more likely be further from the PR outcome. The size of the discrepancy between PR and the common outcomes in the baseline non-partisan maps depends on the state and the precise pattern of political geography and degree of clustering. Sometimes political geography works strongly against PR. In other cases, the political geography may have only a small impact. This concept appears to be well understood by the Court. In Vieth, Justice Scalia wrote the following:

Consider, for example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a “natural” packing effect.[17] 

In other words, if Democrats tend to cluster in cities, rather than being randomly dispersed across the state, then this “political geography” that is created by their tendency toward urban clustering results in Democrats being “packed” into the same districts because the map drawer may be trying to keep cities and counties together—an objective that the Court accepts as neutral and not partisan per se.

In addition, if the partisans are not roughly proportional, PR is less likely to be the outcome. We have long known that if a state’s partisans are split, say, 70 percent Republican to 30 percent Democrat, then almost surely, the Republicans will win all of the state’s seats unless the Democrats are unusually clustered so that it is possible to place them in a district where they command the majority vote. Here again is an interactive effect between political geography and the degree to which PR is even possible—though this time, clustering would work in favor of the minority party.

Indeed, the reason we simulate maps is to understand how political geography and neutral map-drawing criteria affect the natural partisan outcomes when partisanship information is not present. The effect of political geography is statespecific since it depends on the particular people in the state, where they reside, and other neutral criteria that may be based on, for example, city and county boundaries. One can think of the simulation process as procedurally fair in the sense that the process has no explicit partisan information guiding it.

The idea behind employing simulations to understand a process, map drawing or otherwise, is not new. The concept of frequentist probabilities and their interpretation has been well-established since at least the end of the nineteenth century.[18] We can gain some intuition about how simulations work in the familiar context of flipping coins. Suppose we want to know what typically happens when you toss a fair coin one hundred times. Maybe in the first round of one hundred tosses, the coin lands on heads fiftysix times. In the second round, the coin lands on heads fortyeight times. We repeat this process a large number of times. These “simulations” help us understand the behavior of a fair coin. After we have properly repeated this process sufficiently many times, we have an accurate gauge of the behavior of a fair coin.

Figure 1 shows the result when a computer simulates one hundred tosses of a fair coin, and repeats the one hundred tosses three million separate times. This process illuminates that the outcome of more than sixty heads occurs less than 2 percent of the time. Indeed, for any outcome or number of heads, we can know how likely that outcome is to occur for a fair coin. To be sure, it is possible for a fair coin to land on heads one hundred times in one hundred tosses, but if it did, any sane person would question whether that coin was actually a fair coin. While this outcome is not impossible, it is an inordinately improbable outcome. Indeed, in my actual simulation, after the computer has tossed a coin one hundred times for three million repetitions, the event where all of the tosses landed on heads did not occur even once. We can see from the figure that even seventy-five heads would be an “extreme” outcome for an allegedly fair coin. In my actual simulation, seventy-five heads in one hundred tosses did not happen even once in the three million different attempts.

A similar baseline and analysis can inform judgments about maps. Of course, the mechanics of how to draw electoral maps are exceedingly more complex than tossing coins. Indeed, I have spent many years thinking and researching about how to do this properly,[19] but the logic is the same.

To simulate map-drawing, we repeatedly draw maps that adhere to neutral principles like equal population, preservation of cities and counties, and compactness, but do not consider partisan information. Just like for coin tosses, when properly executed, this process creates a baseline for understanding what types of outcomes emerge from a map-drawing process that does not involve explicit partisan information.

Of course, as we have discussed, a state is not constrained to consider only neutral map-drawing principles—many decisions go into devising a map, and a state has wide latitude to act in the interest of its people. There are any number of criteria that can be regarded as outside the set of neutral or “traditional districting principles” but still non-partisan. One example might be a claim that Representative Lynn Wachtmann, in the state of Ohio, made in the legislative record,

The community of Delphos is split with Representative Huffman and I, and let me share with you a little bit different story about what could happen with a great county like Lucas County if they care to work on both sides of the aisle. That is, they could gain more power in Washington.[20]

She is making a claim that the splitting of this county was not done for partisan reasons, but to garner more political power for the people of Ohio. Whether this is true or not, we leave aside at the moment. It could be true, and certainly, when a map is devised, the decisions that determine the boundaries should be done in the interest of the people. In this sense, that the legislature has wide latitude to work in the interest of its people is a feature, not a flaw. Indeed, there are many non-partisan decisions that may lie behind a particular map configuration. Possibly, a representative wants her church or her family’s cemetery in her district. Why a representative may want those things might be personal and completely devoid of partisan motivation. These types of decisions all fall within the wide latitude and undisputed discretionary power of the legislature to devise its electoral map.

Note that even completely non-partisan decisions have partisan effects. Every time a boundary is changed, partisans are shifted from one district to another district. This necessarily changes the partisan composition of the districts, and a partisan effect ensues. But, then, if all decisions, even non-partisan ones have a partisan effect, how do we know if the admittedly many decisions behind a map make it “excessively partisan”? It would be impossible, almost surely, and impractical, at the very least, to try to discover all the reasons and then to determine whether each one was partisan or not.

This realization that many elements influence district boundaries is not lost on the Court. In Vieth, Justice Breyer wrote that the desirable or legal criteria represent a series of compromises of principle—among the virtues of, for example, close representation of voter views, ease of identifying government and opposition parties, and stability in government. They also represent an uneasy truce, sanctioned by tradition, among different parties seeking political advantage.[21]

Partisan effect that arises from the compromise of principles is not problematic. The need for compromise among many factors is a given. It is well established that an important role of the legislature is to bargain and compromise in the pursuit of legislation. The issue is not the compromise of principles, but rather, determining when partisanship has been injected excessively.

To gain some insight into this conundrum, we can think about how this works with the coin toss simulation. A fair coin lands on heads roughly half the time because it is not biased toward heads or tails. Likewise, non-partisan decisions, by definition, are not biased toward one party or the other. Roughly half the time (with the exact probability again depending the political geography of the state), a non-partisan decision will shift partisans in a way that makes a map more Republican. Roughly the other half of the time, it will shift partisans in a way that makes a map more Democratic. To be sure, every shift provides a more favorable effect for one party over the other. However, in the aggregate, for non-partisan decisions, there should be no systematic bias in favor of one party and at the expense of the other party.

Recall that our baseline effect emerges from only neutral criteria (the “traditional districting principles” and the law). It shows what type of partisan outcomes we expect when one employs only the neutral non-partisan map-drawing criteria. If the other motivations behind a map are non-partisan, the unintended partisan effects should wash out, just as over the course of one hundred coin flips, the tallies of heads and tails will be similar. If the partisan effects from these other decisions do not wash out (or if there are many more heads than tails), then we have evidence of partisan motivation (or unfair coins).

The stronger the cumulative partisan effect is in one direction, the greater the evidence of underlying partisan motivations. If a coin lands on heads once, no suspicion is raised. If the second flip also lands on heads, I can say that I am not bothered in the least. But if that coin lands on heads one hundred times in a row, my disbelief is boundless.

 If the legislature uses only neutral criteria, then the expected effect is reflected in the baseline set of maps. Of course, the legislature will contemplate, negotiate, and compromise. No one would argue that they should “choose” one of the baseline maps that are restricted to a small set of criteria. This would be inconsistent with the Elections Clause because it would heavily constrain the legislature rather than allowing it wide latitude. Instead, many other criteria will be considered. Importantly, the political effect from non-partisan decisions should wash out if they are truly non-partisan in nature. If one non-partisan decision results in a map that leans more favorably toward the Republicans, I am not suspicious in the least. After all, every decision moves the map in one party’s favor or the other party’s favor. If a second decision moves the map more Republican, I remain unsuspicious. As the decisions pile up and they continually move the map toward the tail of the baseline distribution, my disbelief grows.

IV.  The State of Ohio

To see how my proposed test would work in an actual redistricting case, we can examine the congressional electoral map for the state of Ohio. I served as an expert witness in the state of Ohio’s gerrymandering case, A. Philip Randolph Inst. v. Householder.[22] Since the 2010 redistricting, each of the congressional races (in 2012, 2014, 2016, and 2018) resulted in twelve Republican seats and four Democratic seats. Figure 2 shows the seat split from more than three million computer-generated maps that I created on the Blue Waters supercomputer for the state of Ohio using only the neutral districting criteria with Ohio’s population and its particular political geography. In the figure, we can see that nine Republican seats is the most commonly expected outcome. Eleven Republican seats is not common at all, and twelve seats, which did occur among the more than three million maps, is an outcome that happens so infrequently that while the histogram bar at twelve seats is present, it is sufficiently minuscule that it is not even visible.

Judging from the legislative record in Ohio, the legislature considered population equality, compactness, contiguity, minority representation, and the preservation of cities and counties in the construction of the current Ohio map.[23] My simulated maps do likewise. The legislature also took a number of other unspecified criteria into account. Once all of the legislature’s criteria were taken into account, the map they produced resulted in a 12/4 Republican/Democrat seat split for every set of congressional elections run under this map.

While we do not know what each of the individual decisions behind the map were, we do know that every one of their “unspecified criteria” moved the map either toward a more favorable Republican outcome or a more favorable Democratic outcome. How did they end up on the tail of the seat share distribution? It is possible that using only the neutral districting criteria, they started at an extreme location. It is possible, but as we know, it’s extremely unlikely—just like obtaining a highly disproportionate number of heads when tossing a fair coin one hundred times. 

One could also argue that many other considerations went into the decision process. Indeed, many other decisions could have and should have entered the calculus. One could also make the claim that these decisions were not partisan. Some appear to be benign requests like splitting a military base across several districts. Other decisions may have involved an explicit attempt to protect constituents’ interests, aimed at better representation for the people of Ohio. Each of these decisions, partisan or not, changed the partisan effect of the map. But the non-partisan decisions should have no systematic bias toward the Republicans or the Democrats. Their collective partisan effect should wash out in the aggregate. On the other hand, partisan decisions surely are intended to have a specific partisan effect and move the map in the intended direction.

What we observe is a map that is all the way on the right end of the distribution of partisan effect. That means we either began on the tail, which is extremely unlikely, or we started in a more likely spot and then the subsequent decisions moved that partisan effect to that end of the distribution. If the subsequent decisions moved that map so far in one direction, it is like the coin that keeps landing on heads. If the first “decision” makes the map more Republican leaning, that is not bothersome since it has to have some partisan effect. If the second “decision” moves the map in the Republican direction again, that is also not so unusual. If the entire set of decisions move the partisan effect all the way to the end of the distribution, we have strong evidence that an increasingly small set of those decisions were actually non-partisan.

Importantly, note that there are different types of partisan unfairness. An electoral map can be unfair if partisanship is used excessively so that one party’s seat share or electoral outcomes are affected. This might be observed, as we have just seen, by how many seats favor one party over the other. However, this is not the only way in which a legislature may use partisan information to usurp power from the voters. Another option is to create districts that are not competitive. When districts are not competitive, the outcome is essentially pre-determined such that the voters are effectively disenfranchised because while they are still able to cast a ballot, their ability to influence elections has been non-trivially compromised.

In my capacity as an expert witness for the Ohio gerrymandering case, I produced not just the baseline distribution shown in Figure 2, but also the one shown in Figure 3. Here, I examined how many of Ohio’s congressional districts were competitive. I defined “competitive” as resulting in an outcome that was “within a 10% margin of victory” (i.e., the winning party received no more than 55 percent of the two-party vote and the losing party received at least 45 percent of the two-party vote). Recall that I have already generated more than three million baseline maps. To be sure, when we have a set of baseline maps, there are many facets of these maps that can be examined. We are not restricted to seat shares or even the number of competitive seats. Indeed, this set of baseline maps has depth and richness on many dimensions, allowing us to explore numerous and varied facets of an electoral map. When I examined the competitiveness of Ohio’s congressional seats, I found that, commonly, half of the districts in the simulated maps were competitive. In contrast, in the current Ohio congressional map, all of the districts are quite non-competitive. So, in addition to producing a highly unusual seat split, the maps also resulted in a highly unusual lack of competitive seats. To be highly unusual on two partisan measures, as you can easily intuit, is even more suspect than if the current Ohio map was unusual in only one way. Maybe the first time you toss a coin one hundred times, the coin lands on heads an unusually large number of times. Unusual events like this do happen. If you toss that coin one hundred times again and a second unusual outcome occurs, the strength of the evidence is undeniably stacking up against that coin being fair.


Surely a map can be unusual on only one dimension. For instance, in North Carolina, if the map resulted in a 7/6 seat split, just because this outcome is “close to PR” does not exonerate it from other possible gerrymandering claims. We see clearly here that the baseline set of maps is not about some assessment of PR. Rather, they are far richer, allowing us to scrutinize many facets of partisan unfairness. If that map is 7/6 but sufficiently uncompetitive so that the voters have very little ability to change the outcome, then that map “dictates outcomes” and can be regarded as unconstitutional in that way. What makes a map unfair is not a deviation from any sense of proportional representation. What makes it unfair is the evidence that excessive partisanship was utilized.

V.  Rigorous Identification of Partisan Gerrymandering is Possible

When subject to litigation, a state is free to protest that its legislature’s map has been improperly identified as “excessively partisan.” That state can also present exculpatory evidence. Clearly, a map drawn free of partisanship can have an extreme partisan effect that emanates from neutral considerations. A fair coin also can land on heads one hundred times, but this outcome invites incredulity. Simulations are never able to tell us definitively that a coin is not fair or that the decisions behind a map are excessively partisan with certainty. In both cases, the simulations provide evidence and give us a sense of the strength of that evidence. The greater the number of heads over tails, the greater the evidence against a fair coin. The further the partisan effect moves from the baseline maps, the greater the evidence that partisanship was used excessively.

Sometimes, one has a smoking gun. Perhaps a suspect was caught, covered in blood, standing over the victim, holding the murder weapon at the crime scene. In the case of North Carolina, one may or may not regard Representative David Lewis’s comments about purposefully drawing a 10/3 map as this type of evidence. Barring such evidence, we still have a way to develop solid, probative, and dispositive evidence through the baseline set of maps.

The ability to create a baseline set of maps, combined with a proper and theoretically sound interpretation allows us to honor the Elections Clause that provides wide latitude to the states to prescribe the times, places, and manner of its elections, support our system of geographically based single member districts, be divorced from notions of proportional representation, and maintain the Court’s oversight of the legislature by providing a judicially manageable standard that assesses whether legislative decisions are excessively partisan.

The cutoff for what qualifies as “excessive” is a legal judgment call—the bread and butter of the Supreme Court’s constitutional jurisprudence. The exact cutoff may not be clear, but the Court is the institution charged with making that judgment. What is clear is that there is a way to measure excessiveness that is consistent with the Constitution’s regard for states rights and the legislature’s mandate to legislate for the people. This measure is not related to proportional representation, and it serves as the basis for a judicially manageable standard.

Whether the Court analyzes partisan gerrymandering as a matter of First Amendment viewpoint discrimination, as a matter of vote dilution under the Equal Protection Clause, or as an abuse of the power delegated to states under the Elections Clause, recent technological developments now enable the Court to put judicially manageable limits on the excessive use of partisanship in designing election districts. Technology has surely fueled the threat and growth of gerrymandering by providing a tool for the partisan majority of a state legislature to draw self-serving electoral boundaries, but it also now fulfills its promise by providing the basis for a judicially manageable standard to help judge whether electoral maps are excessively partisan.


[*] Professor in the Departments of Political Science, Statistics, Mathematics, and Asian American Studies, the College of Law, and Senior Research Scientist at the National Center for Supercomputing Applications at the University of Illinois at Urbana-Champaign. She has served as an expert witness in redistricting litigation and has published research on technological innovations for redistricting analysis in computer science, operations research, statistics, physics, political science, and law.

 [1]. Transcript of Oral Argument, Rucho v. Common Cause, No.18-442 (U.S. Mar. 26, 2019).

 [2]. Transcript of Oral Argument, Benisek v. Lamone, No. 17-333 (U.S. Mar. 28, 2019).

 [3]. Vieth v. Jubelirer, 541 U.S. 267, 293 (2004) (alteration and emphasis in original) (internal quotation marks omitted).

 [4]. Id. at 344 (Souter, J., dissenting).

 [5]. Transcript of Oral Argument, supra note 1, at 38.

 [6]. Id.

 [7]. Vieth, 541 U.S. at 312–13 (Kennedy, J., concurring).

 [8]. Gill v. Whitford, 138 S. Ct. 1,916, 1941 (2018) (Kagan, J., concurring) (citation omitted).

 [9]. Transcript of Oral Argument, supra note 1, at 42.

 [10]. Id. at 27 (emphasis added).

 [11]. Id. at 43–44.

 [12]. Id. at 30–31.

 [13]. Id. at 43.

 [14]. Common Cause v. Rucho, 279 F. Supp. 3d 587, 604 (M.D.N.C. 2018).

 [15]. Transcript of Oral Argument, supra note 1 at 30.

 [16]. Id. at 29.

 [17]. Vieth v. Jubelirer, 541 U.S. 267, 289–90 (2004) (citation omitted).

 [18]. For the early development and discussion of these concepts, see generally A. A. Cournat, Exposition de la Théorie des Chance et des Probabilités (1843); John Venn, The Logic of Chance: An Essay on the Foundations and Province of the Theory of Probability (1888); Robert Leslie Ellis, On the Foundations of the Theory of Probabilities, in Mathematical Proceedings of the Cambridge Philosophical Society (B.J. Green et al., eds., 1844).

 [19]. Wendy K. Tam Cho & Simon Rubinstein-Salzedo, Understanding Significance Tests from a Non-Mixing Markov Chain for Partisan Gerrymandering Claims, 6 Stats. and Pub. Pol’y (forthcoming 2019), https://www.tandfonline.com/doi/full/10.1080/2330443X.2019.1574687; Wendy K. Tam Cho & Yan Y. Liu, A Massively Parallel Evolutionary Markov Chain Monte Carlo Algorithm for Sampling Complicated Multimodal State Spaces, in SC18: The International Conference for High Performance Computing, Networking, Storage and Analysis (2018), https://sc18.supercomputing.org/proceedings//tech_poster/poster_files/post173s2-file3.pdf; Bruce E. Cain, Wendy K. Tam Cho, Yan Y. Liu & Emily Zhang, A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting Proposals, 59 Wm. & Mary L. Rev. 1521 (2018); Wendy K. Tam Cho & Yan Y. Liu, Sampling from Complicated and Unknown Distributions: Monte Carlo and Markov Chain Monte Carlo Methods for Redistricting, 506 Physica A 170 (2018); Wendy K. Tam Cho & Yan Y. Liu, Massively Parallel Evolutionary Computation for Empowering Electoral Reform: Quantifying Gerrymandering via Multi-objective Optimization and Statistical Analysis, in SC17: The International Conference for High Performance Computing, Networking, Storage and Analysis (2017), https://sc17.supercomputing.org/SC17%20Archive/tech_poster/poster_files/post211s2-file3.pdf; Wendy K. Tam Cho, Measuring Partisan Fairness: How Well Does the Efficiency Gap Guard Against Sophisticated as well as Simple-Minded Modes of Partisan Discrimination? 166 U. Pa. L. Rev. Online 17 (2017); Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 Swarm and Evolutionary Computation 78 (2016); Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351 (2016); Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, A Scalable Computational Approach to Political Redistricting Optimization, in Proceedings of the XSEDE 2015 Conference: Scientific Advancements Enabled by Enhanced Cyberinfrastructure (2015) https://dl.acm.org/citation.cfm?doid=2792745.2792751; Douglas M. King, Sheldon H. Jacobson, Edward C. Sewell & Wendy K. Tam Cho, Geo-Graphs: An Efficient Model for Enforcing Contiguity and Hole Constraints in Planar Graph Partitioning, 60 Operations Res. 1213 (2012).

 [20]. H. & S. Rep. No 319, pts. 12, at 28 (Ohio 2011).

 [21]. Vieth, 541 U.S. at 360 (Breyer, J., dissenting).

 [22]. Ohio A. Philip Randolph Inst. v. Householder, No. 18-cv-357, 2019 U.S. Dist. LEXIS 24736, at *40–41 (S.D. Ohio Feb. 15, 2019).

 [23]. See Wendy K. Tam Cho, Expert Witness Testimony filed in Ohio A. Philip Randolph Inst. v. Householder, No. 18-cv-357, 2019 U.S. Dist. LEXIS 24736, at *40–41 (S.D. Ohio), Oct. 5, 2018.


Quid Pro No: When Rolexes, Ferraris, and Ball Gowns Are Not Political Currency – Note by Daniel Brovman

From Volume 92, Number 1 (November 2018)


Quid Pro No:
When Rolexes, Ferraris, and Ball Gowns Are Not Political Currency

Daniel Brovman[*]



I. Factual and Procedural Background

II. The Supreme Court’s Decision in
McDonnell v. United States and its
Misguided Theories

III. The Court Erred: Why, How, and What This
Means for its Democracy-Reinforcing Role

A. Why the Court’s View on Access Is Incorrect

B. Why Contradictory Public Opinion Problematizes
the Court’s Holding

C. How the Amici Blinded the Court to Public Opinion

D. How the Court’s Actions Relate to the
Usefulness (or Lack Thereof) of Amicus Briefs

E. In Deferring to Amici and Neglecting
Inequalities and Public Opinion, the Court
Failed to Reinforce Democracy

IV. Possible Solutions

A. Rectifying the Court’s Failure to Reinforce

B. Rectifying the Court’s Reliance on Amicus Briefs

C. Rectifying the Basis of the Court’s Failure:
A Statute Ill-Equipped to Tackle Corruption




The misfortune of a republic is when intrigues are at an end; which happens when the people are gained by bribery and corruption: in this case they grow indifferent to public affairs, and avarice becomes their predominant passion. Unconcerned about the government and everything belonging to it, they quietly wait for their hire.[1]

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).[2] 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 inequalityranging from political, economic, social, and racialin contemporary American society and the effect that inequality has on access. However, the Court did not arrive there alonethe many amici filing on behalf of the petitioner blinded itat least partiallyto the aforementioned realities and public opinion.

In short, in McDonnell, the Court claimed that its concern was not with the “tawdry tales” of a pay-to-play political culture in which Ferraris, Rolexes, and ball gowns carry political currency, but rather “with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.”[3] However, while so claiming, the Court narrowed not only the definition of what could constitute an “official act,” but also overturned hundreds of years of jurisprudence on corruption law to democracy’s and the public’s detriments.[4] Although a valid exercise of statutory interpretation, the Court nonetheless acted with ignorance to the realities of political bribery.

Part I of this Note provides a brief explanation of the instant case, including a discussion of its factual background and procedural history, as well as a brief discussion on the bribery statute used in the Eastern District of Virginia’s prosecution of McDonnell.

Part II then focuses on the Supreme Court’s analysis of the case. Although briefly reviewing the Court’s interpretation of the bribery statute, this Part focuses primarily on the dicta in the Court’s opinion. Here, I argue that the Court relied heavily on amici, implicitly assumed an equal playing field regarding access to politicians, and predicated its opinion on that equality, thus preserving that access. In this section of its opinion, the Court espoused a number of fears regarding the lower courts’ interpretation of what constituted an “official act,” almost all of which Governor McDonnell and other amici also discussed. Since statutory interpretation is an inexact science, the dicta showcases the Court’s real motivation behind its decisionmaking.

Part III then discusses where, why, and how the Court’s reasoning went wrong. First, I argue that the Court failed to consider social, political, and economic inequalities, all of which result in unequal access to politicians and public servants. Next, I argue that public opinion supports this notion that stratified access exists and ascribes a number of reasons for it, including, for example, campaign finance issues. Because that public opinion exists, I also argue that the Court could have examined stratified access in its opinion. After problematizing the Court’s perception of what constitutes access, I examine why the Court ultimately decided the way it did, arguing that amici blinded the Court to public opinion. Therefore, as a result, I contend that the Court attempted, but failed, to reinforce democracy by discussing access in dicta after having already established what constituted an “official act” earlier in its opinion. In summary, in attempting to promote democracy and reinforce it, the Court failed. Instead, it promoted something inherently corrosive to democracy.

Part IV of this Note suggests possible solutions. It suggests remedies to rectify what this Note problematizes in Parts II and III: the Court’s failure to reinforce democracy; the Court’s overreliance on amici and more generally, the problem of amicus briefs in Supreme Court jurisprudence; and finally, the problematic and limiting wording of the bribery statute used to prosecute Governor McDonnell. First, this Note suggests a limited rapprochement between the Court and public opinion, suggesting various methods for the Court to assess public opinion and prevent walling itself off as an elite institution. Second, this Note also suggests a number of remedies related to the role of amicus briefs in Supreme Court jurisprudence, including, but not limited to, limiting the actual number of amici that may file, while also providing rules and guidelines for ensuring novel arguments from amici. Finally, this Note suggests various ways that Congress could amend the bribery statute to mirror public sentiment by tracking ethics and public corruption reforms in New York as a baseline for nationwide reform efforts.

Beyond providing valuable insight into how the Supreme Court interacts with amici and amicus briefs and how those interactions may affect the Court’s role as a democracy-reinforcing institution, the instant case also provides an interesting outlook on the current state of public corruption prosecutions. In the Southern District of New York (“S.D.N.Y.”), where the U.S. Attorney’s Office has relentlessly tackled public corruption in the state capital and elsewhere, numerous convictionsmost notably, those of Dean Skelos,[5] the former Majority Leader of the New York State Senate and Sheldon Silver,[6] the former Speaker of the New York State Assemblyhave been overturned. Although the Second Circuit maintained that sufficient evidence existed to prove that both defendants committed the crimes alleged, it was still was forced to overturn the respective convictions because of the erroneous jury instructions.[7] The U.S. Attorney’s Office for S.D.N.Y. later retried these cases, winning convictions on both of them.[8] The McDonnell decision has also affected other corruption cases, like that of U.S. Senator Robert Menendez (D-N.J.),[9] in which the judge declared a mistrial.[10] The Supreme Court’s actions have had real consequences as the Court “has slowly eroded the country’s body of corruption laws” and resulted in a prosecutorial inability to challenge public corruption.[11] Therefore, the Court’s decision may not only affect the public, but also prosecutorsboth to their respective detriments.

As a result of the rising public opinion viewing government as inefficacious or corrupt,[12] coupled with pervasive and systemic inequality in the United States and the possible harmful effects the Court’s decision may have on democratic institutions, examining McDonnell and the Court’s underlying reasoning behind its decision is extremely valuable.

I.  Factual and Procedural Background

On January 21, 2014, the United States Attorney’s Office for the Eastern District of Virginia indicted Virginia’s Governor, Robert McDonnell,[13] along with his wife, First Lady Maureen G. McDonnell, for their alleged roles in a “scheme to violate federal public corruption laws.”[14] The U.S. Attorney’s Office charged the couple with one count of conspiracy to commit honest-services wire fraud, six counts of obtaining property under color of official right, three counts of honest-services wire fraud, one count of conspiracy to obtain property under color of official right, and one count of making false statements to a federal credit union.[15]

The core of the indictment related to a relationship the couple had with the Chief Executive Officer (“CEO”) of a major pharmaceutical firm conducting business with the state, Star Scientific.[16] Prior to McDonnell’s election in 2010 and over the course of his campaign, Star Scientific’s CEO, Jonnie Williams Sr. (“JW”), and McDonnell and his wife developed an amicable relationship, meeting numerous times over the course of his campaign.[17] McDonnell and JW became friendlier, as McDonnell even began using JW’s private planes to shuttle between political events.[18] At one point, their relationship began to lay the foundation for the charged offenses, slowly discussing the “potential health benefits of anatabine and the need for scientific studies of these potential health benefits,” with McDonnell then placing JW in contact with other politicians and administrative officials.[19]

Even though McDonnell was elected governor in 2010, he continued to aid Star Scientific and received personal financial benefits from April 2011 until March 2013.[20] McDonnell received numerous forms of financial benefits, including luxury shopping trips, in return for arranging meetings for Star Scientific’s CEO with various high-ranking Virginian administrative officials and politicians, hosting events for the company as a means of promoting its products to Virginia state universities so that those universities would study the products and eventually refer new patients to those products.[21] Over the course of their relationship, McDonnell received at least $135,000, including shopping trips ($10,999 at Oscar de la Renta, $5,685 at Louis Vuitton, and $2,604 at Bergdorf Goodman),[22] loans for his daughter’s wedding (approximately $50,000 at an exceedingly low interest rate),[23] wedding gifts (approximately $15,000),[24] golf trips (at which McDonnell and his family charged approximately $2,380 to JW’s account),[25] and other forms of enrichment.[26] Not only did McDonnell receive that money, but also, he received it after he helped JW.[27] In return for all of the gifts McDonnell and his wife received, prosecutors argued that McDonnell arranged meetings and other opportunities for JW to market his company and products to other government officials.[28] The indictment also alleged numerous other instances of a seemingly quid pro quo relationship.[29]

On September 4, 2014, after a fiveweek trial and merely three days of jury deliberations, a unanimous jury, believing the law to be clear on the issues, found McDonnell guilty of extortion under color of official right, obtaining property under color of official right, and honest services wire fraud.[30] The jury also found his wife guilty of honest services wire fraud, extortion under color of official right, obtaining property under color of right, and obstruction of a federal proceeding.[31] In total, the jury found McDonnell guilty on eleven of the thirteen charges and his wife guilty on nine of the thirteen.[32]

McDonnell appealed his decision to the Fourth Circuit Court of Appeals.[33] The appeal centered on the definition of official act. The trial court had used the government’s proposed jury instruction and defined an official act accordingly:

The term official action means any decision or action on any question, matter, cause, suit, proceeding, or controversy, which may at any time be pending, or which may by law be brought before any public official, in such public official’s official capacity. Official action as I just defined it includes those actions that have been clearly established by settled practice as part of a public official’s position, even if the action was not taken pursuant to responsibilities explicitly assigned by law. In other words, official actions may include acts that a public official customarily performs, even if those actions are not described in any law, rule, or job description. And a public official need not have actual or final authority over the end result sought by a bribe payor so long as the alleged bribe payor reasonably believes that the public official had influence, power or authority over a means to the end sought by the bribe payor. In addition, official action can include actions taken in furtherance of longer-term goals, and an official action is no less official because it is one in a series of steps to exercise influence or achieve an end.[34]

McDonnell argued to the Fourth Circuit that these jury instructions were in error,[35] claiming “the court’s definition was overbroad, to the point that it would seem to encompass virtually any action a public official might take while in office.”[36] According to McDonnell, the definition in the jury instructions would result in the inclusion of all acts of governance as “official acts,” because “[f]or public figures such as a governor, who interact with constituents, donors, and business leaders as a matter of custom and necessity, these activities might include such routine functions as attending a luncheon, arranging a meeting, or posing for a photograph.”[37] Essentially, McDonnell argued that the possible deleterious effects of the district court’s decision should drive the decisionmaking of the court of appeals.[38]

The court of appeals affirmed the jury verdict.[39] In arriving at that decision, the court of appeals reviewed and focused on McDonnell’s claims regarding the jury instructions on what constituted an “official act” for the purposes of the federal bribery statute,[40] which both sides agreed defined the “official act” or “official action” for the purposes of the honest services wire fraud statute and the Hobbs Act, respectively.[41] The court affirmed the lower court’s instructions to the jury that an “official act” constituted “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”[42] The court also emphatically rejected McDonnell’s arguments and fears associated with an expansive definition of “official act.”

The court refused to acknowledge McDonnell’s argument that the district court’s decision would have a harmful effect on politics and democratic institutions, and even rejected his proposed jury instructions, believing them either to misstate the law or to subject the jury through jury instructions to the defendant’s core legal arguments.[43] Finally, the court even entertained broadening the scope of what constituted an “official act” in spite of McDonnell’s plea to narrow it, thus firmly denying McDonnell’s argument.[44]

Taking his appeal to the Supreme Court, McDonnell again challenged the definition of an “official act”arguing it should be limited to exercising some form of government power or struck down as unconstitutional for being overly broad.[45] In that petition, McDonnell argued the Supreme Court had never defined “official acts” in such a broad manner.[46] To the contrary, McDonnell argued,

[n]ot only has this Court held that actions like a visit, speech, or meeting are not, standing alone, official acts, it has even held that paying for such access—through campaign contributions or independent expenditures—is constitutionally protected. While the government can forbid true corruption—i.e., the direct exchange of an official act for money—it may not target . . . the political access such [financial] support may afford.”[47]

According to McDonnell, paying for access—the ability to get a call answered or a meeting scheduled—is constitutionally protected and an intrinsic part of our political system.[48] Paying for access, therefore, constituted politics as usual and a fundamental part of the democratic system, which is protected much like other aspects of our democratic institutions such as voting and campaign finance.

The United States rejected McDonnell’s fears and reaffirmed its position that such quid pro quo agreements are unlawful poses no threat to legitimate political activity.”[49] It also noted that affecting a specific part of governmentor having a determinative effect on governmental policy or administrative outcomewas unnecessary for the purpose of applying the statute.[50]

II.  The Supreme Court’s Decision in McDonnell v. United States and its Misguided Theories

After McDonnell filed his Petition for Writ of Certiorari, eleven amici filed briefs in support of it.[51] On January 15, 2016, the Supreme Court granted McDonnell’s petition.[52] Shortly after the grant, the same amici filed again as did a number of others on behalf of McDonnell. Five amici eventually filed in support of the United States.[53] A mere six months later, on July 29, 2016, in a unanimous opinion, the Court vacated McDonnell’s conviction and remanded it to the district court.[54]

In that decision, the Court overturned the district court and court of appeal’s view on what constituted an “official act” and instead held that it “is a decision or action on a question, matter, cause, suit, proceeding or controversy.[55] The aforementioned question or matter “must involve a formal exercise of governmental power,” and “must also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”[56] In arriving at its decision, the Court analyzed the bribery statute, employing a quintessential form of statutory interpretation.[57] The Court first “examined the bribery statute’s text” and “next turned to § 201(a)(3)’s requirement of a decision or action.[58] As such, the Court used statutory interpretation to narrow what constituted an “official act” and to side with McDonnell’s interpretation rather than the Fourth Circuit’s. Finally, in deciding which definition applied, the Court also employed a familiar canon in Supreme Court jurisprudence: “a word is known by the company it keeps.”[59]

However, the Court also devoted a significant portion of its opinion to discussing, much like McDonnell did in his appeal and petition, the adverse effect on politics as usual if it were to support the government’s position and endorse the opinion of the lower courts.[60] Such commentary was provided in dicta[61]as discussed, the Court had already provided, through statutory interpretation, its belief that the court of appeals and the district court had erroneously defined what constituted an “official act.”

However, since “statutory interpretation is not a science but an art,”[62] understanding the Court’s motivations provides some clarity into what is otherwise an opaque analysis. Further, the Court discussed its concerns with the lower courts’ perspective on what constituted an “official act” only after using statutory interpretation to determine its definition and exploring that issue in fourteen pages of text.[63] For this reason and because “unlike mathematical symbols, the phrasing of a document, especially a complicated enactment, seldom attains more than approximate precision,” examining the background of a decision involving statutes is especially important.[64] The presence of that dicta in McDonnell can therefore reveal the Court’s reasoning in how it extracted precision from the relevant statute or with what motivations it undertook that task.

The Court embraced McDonnell’s discussion on the deleterious effects of the court of appeal’s assessment of what constituted an “official act” in three interconnected fears in dicta.[65] In doing so, the Court examined its desires to promote democracy by promoting access to politicians and allowing constituents and public servants to interact, to provide clear guidelines for politicians and public servants to avoid corrupt behavior, and finally, to preserve democracy by limiting the ability of overzealous prosecutors to target all public servants.

In discussing these fears and desires, the Court explicitly stressed the underlying importance of access to politicians in any democracy. So much so, it argued that access and interactions with public servants constituted a “basic compact underlying representative government” that assumed that “public officials will hear from their constituents and act appropriately on their concernswhether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.”[66] Therefore, JW’s access to McDonnellperhaps aboard his private jetwas necessary for democracy to operate effectively or at least with some marginal forms of representation. Accordingly, the Court validated paying for audiences with elected officials.[67] However, implicitly, the Court also granted those with the ability to pay for those audiences greater visibility with those that wield political power, out of a perceived necessity.[68]

In discussing its first fearof halting democracythe Court discussed the deleterious effects the lower courts’ decisions would have on governance and on any interactions constituents would have with their representatives. In discussing how the public engages their public officials, the Court noted that, “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.”[69] Regardless of socioeconomic status, race, or other statuses, the Court believed that politiciansas fundamental to their roleorganize and work on behalf of their constituents, which sometimes requires arrangements like the one in McDonnell. More importantly, the Court believed that these public officials would always respond to the calls and requests to meet with any of their constituents. Thus, the Court wanted to avoid a situation in which “citizens with legitimate concerns might shrink from participating in democratic discourse.”[70] Without the aforementioned access or interactions being possible, the Court feared that democracy would falter.

The Supreme Court espoused a second concern: that the lower courts decisions would create vagueness and difficult guidelines for politicians and public officials to follow. Specifically, in discussing this secondary concern, the Court noted, “under the Government’s interpretation, the term official act is not defined with sufficient definiteness that ordinary people can understand what conduct is prohibited, or in a manner that does not encourage arbitrary and discriminatory enforcement.[71] Such vagueness would occur because it would not be clear which conduct was legal and which conduct could result in an overly eager prosecutor in a U.S. Attorney’s Office taking note of a politician’s supposedly benign actions and subsequently issuing an indictment.[72] According to the Court, people in generaland not just politicianswould be unclear as to what constituted legal interactions with governing officials. This possibility could also feed into the Court’s first fear, namely, that the vagueness would have a chilling effect on governance.

The Court espoused a third fear as well. Along with the aforementioned theme of emboldening prosecutors, the Court also feared that supporting the court of appeals’ holding would bestow an unrivaled power on the government against defendants in criminal public corruption cases. The Court espoused this final fear, noting that “[u]nder the standardless sweep of the Government’s reading . . . public officials could be subject to prosecution, without fair notice, for the most prosaic interactions.”[73] As a result of the vagueness created by the lower courts reading of the statute, the Court adamantly believed that prosecutors would exploit the now broadened statute to target behavior that may or may not be corrupt. Despite the system of checks that exists for any public corruption prosecution, which requires numerous forms of approval from various Department of Justice officials,[74] the Court feared that federal prosecutors may, on the faintest trace of information suggesting corruption, prosecute with wild abandon.[75]

Accordingly, the Court perceived itself as a democracy-reinforcing institution because it believed that by upholding the trial courts decision, democracy would suffer. Specifically, upholding that decision would wreak havoc on the ability of government to function, perhaps bringing democracy to a screeching halt. Even in doing so, however, the Court did find the instant facts of McDonnell’s case problematic or even troublesome. It admitted that it condoned a maligned form of access acknowledging that the “governor’s activities were distasteful and crass and dishonest.[76] The Court even acknowledged that, at minimum, McDonnell provided JW with repeated access to governmental decisionmakers crucial to his business interests.[77] Thus, even though it interpreted statutes and applied dictionary definitions in that process, the Court still expressed some opinions regarding the facts of the case. Therefore, examining how the Court arrived at a point of both awareness that it promoted a disparaged concept of access while still voicing and premising its decision on the deleterious effects of that concept of access is of value.

III.  The Court Erred: Why, How, and What This Means for its Democracy-Reinforcing Role

Although the Court used statutory interpretation to decide the instant case, it discussed its motivating factors in dicta shortly after interpreting the relevant statutes. In doing so, it made implicit assumptions regarding political access, as indicated via the discussion in Part II. However, it is extremely worrying that the Court disregarded certain inequalities in the United States. First, in neglecting the pervasive inequalities that permeate American society, the Court also disregarded the widespread public opinion regarding public corruption and unequal access to politicians. Second, the Court overemphasized both the role of the amici and their voices. Its error here is especially problematic, as those amici did not expressly represent public opinion but rather emphasized and reemphasized McDonnell’s fears of the possible deleterious effects the lower courts decision may have on democratic institutions. These amici therefore provided a biased view on the issue. Finally, as a result of the above, the Court failed to reinforce democracy, one of its keystone roles.

A.  Why the Court’s View on Access Is Incorrect

As indicated above, preserving access to politicians motivated the Court’s decisionmaking.[78] Embracing a theory of participatory democracy, the Court believed that by promoting access to politicians and public servants, it advocated allowing constituents to play a role in the laws that govern society.[79] However, issues relating to inequality pervade American society, propounding a view to the contrary: the Court subscribed to a utopian democracy absent in American society.[80] The translation of a lack of access to democratic institutions into powerlessness, subsequently exacerbated by socioeconomic, racial, and economic inequalities, brings the Court’s aforementioned implicit assumptions into question. Access to politicians constitutes power, but when highly unequal access permeates any society, that inequality is corrosive to democracyand the Court’s decision ultimately perpetuated that highly unequal access.[81]

Inequality translates across the American political experience, from political inequalities that limit the ability for certain individuals to vote to economic inequalities limiting access to higher education and other social goods. All told, far from being a society in which all men are created equal, the American experience is one of harsh and pervasive inequality.[82] Although an inequality in access to politicians exists between donors to campaigns and non-donor constituents,[83] a review of other inequalities and how those inequalities translate to political experiences is of value when examining how extensive inequality is in modern America. However, despite numerous distinguishing and confounding factors that affect minority group experiences in the United States, the general experience is that “[g]roups that are ‘anonymous and diffuse’ . . . are systematically disadvantaged in a pluralist democracy.”[84] These systemic inequalities also can affect the success or lack thereof of specific groups in advancing their political agendas, again questioning the image of access the Court implicitly referenced.[85]

The Court also disregarded the role racial inequality may play in political access. Racial discrimination occurs in a wide variety of settings, including, but not limited to, financial lending and housing,[86] employment,[87] within the criminal justice system,[88] and education.[89] Alarmingly, these instances of discrimination are not limited to a purely non-political sphere, but rather pervade society. In testing the responsiveness rate of politicians to constituents based on varying the race of the constituent, researchers found that “U.S. state legislators were less responsive to requests from blacks than from whites for help with registering to vote when no signal about partisanship was given.”[90] In other instances and at a different level of government, the tone in response communications for public housing requests revealed “racial differences,” with “Hispanic housing applicants were 20 percentage points less likely to be greeted by name than were their black and white counterparts.”[91] At varying levels of governance and for differing requests, race plays a role in the contemporary American political experience, harming some while benefitting others. Despite the harmfulness of the possibility of race having a role in service provision, it is but one of the many factors that affects access.

Beyond the perniciousness of racial inequalities, economic inequality also affects access to politics and democracy in contemporary American society. At base, “[c]ampaign donations buy access to politicians” and “politicians themselves have admitted that big donors get special treatment.”[92] However, even removed from the explicit instances involving campaign donations, money, wealth, or income all have an effect on one’s role within American democracy. As wealthier individuals are more likely to vote, “[e]conomic inequality also feeds the political kind, driving everything from the actions of our political representatives to the quality and quantity of civic engagement.”[93] Beyond wealth having a positive effect on participation, economic inequalities also drive down the participation of those who are less advantaged, limiting access to those stricken by poverty.[94] Specifically, such inequalities result in “[d]eclining political interest,” which in turn suggests that “issues on which a consensus exists among richer individuals . . . become increasingly unlikely even to be debated within the political process regardless of whether poorer citizens would care to raise them.”[95] Accordingly, even with a desire to participate, some individuals lack the ability to do so because their financial statuses have already foreclosed any access to certain aspects of democracy.

Finally, other aspects of basic political inequalities that inherently stratify access exist as well, like felon voter disenfranchisement and voter identification laws. These forms of inequality directly limit certain individuals’ ability to participate in democracy by outlawing basic aspects of their participation in democratic systems. Although “the days of outright exclusion from the voting process are mostly behind us in the United States, there remains a steady stream of initiatives to limit participation.”[96] These methods include “inadequate voter outreach to poor or immigrant neighborhoods, poorly staffing polling places, [and] preventing some felons from voting,” thus almost eliminating the line between “neglect” and “willful disenfranchisement.”[97] Voter identification laws have a similar effect, at least inasmuch as the “laws skew democracy toward those on the political right” and “have a differentially negative impact on the turnout of racial and ethnic minorities in primaries and general elections.[98] Therefore, voter disenfranchisement limits an essential aspect of access to democratic institutions: the right to vote.[99] Regardless of the methods deployed to limit accessand if they are direct disenfranchisement or identification lawsthe effect is the same, as “the voices of some citizens are not heard” and lessens the “long-accepted principle that all citizens have effective access.”[100] In such instances, political access is not limited, but rather absent, with some individuals missing some of the essential forms of participating in a democracy.

In summary, a number of variables affect political access, all limiting the access of specific minorities or those with certain socioeconomic backgrounds. This inequality, of course, exists even without delving into the significant intersectionality of race, socioeconomic status, and other factors in contemporary American societythe reality that for certain groups, the intersection of minority status only serves to multiply their powerlessness.[101] The Court failed to consider the role of stratified access in the United States, as it simply validated the necessity of access without qualifying who actually has access and who does not. Although the reality of stratified access should be sufficient in showing the Court erred, public opinion indicating disapprobation towards that reality further underscores that the Court erred.

B.  Why Contradictory Public Opinion Problematizes the Court’s Holding

Inasmuch as the Court felt it reinforced democracy, it did so erroneously. The Court embraced a concept of access it believed to be crucial to a thriving democracy, but one that the public abhorred. Widespread public opinion regarding campaign finance reform, money in politics, and finally government corruption questions the theory of access the Court espoused. It further indicates that the Court may have been cognizant of how the public would perceive its theory regarding access, especially considering that the Court often responds to public opinion.[102] Yet in no place in its McDonnell opinion did it discuss public opinion.

Public opinion regarding government corruption indicates that, from the perspective of the general public, some inequality of access exists. Recent polling suggests that as much as 75% of Americans view their government as corrupt, and that “[t]his alarming figure has held steady since 2010, up from 66% in 2009.”[103] When presented with an option to choose between the federal government, the news media, banks and financial institutions, the police, and organized religions, a plurality of 38% of respondents chose the federal government as the most corrupt institution in the United States (leading the news media, which placed second, by more than 20 points).[104] Not only is the opinion that public corruption exists prominent in the United States, but also, it exists at a much higher percentage than in other Western countries, like the United Kingdom (46%), Canada (44%), Germany (38%), and Sweden (14%).[105]

The public’s perspective on campaign finance reform indicates that the public generally views disdainfully how politicians and administrative officials fundraise, and subsequently, the access afforded to the wealthy by politicians and administrative officials alike. Although the Court claimed that donating to campaigns in return for access does not constitute a quid pro quo relationship,[106] public opinion rejects that view. A poll from the Pew Research Center found that 76% of Americans believe that money has a greater influence on politics now than it has before, running across party lines.[107] Similarly, Americans, in a N.Y. TimesCBS News survey, viewed the political system as requiring change85% believed that a change to the way political campaigns are funded is necessary, with 46% also saying that a complete rebuild is necessary.[108] Such results are common across several research agencies and are hardly limited to specific individualsrather, this perspective is shared by almost all Americans who participated in the polls.[109] Of course, such perspectives also assume or implicitly imply another factor: money has an effect on political access.

Even though the Court dismissed discussing the aforementioned widespread opinion, further probing the source of that opinion indicates that a majority of Americans believe that an inequality of access to politicians, administrative officials, and public servants contributes to its perception as a legitimate issue. Access is stratified, in the opinion of many Americans, as 66% claim that the wealthy have more access, compared to 31% who believe equal access to politicians exists.[110] This belief that the wealthy have more access exists beyond an abstract notion of access and contributions: 85% of Americans believe that “candidates who win public office promote policies that directly help the people and groups who donated money to their campaigns.”[111]

These beliefs are bipartisan as well, given that “[l]arge majorities of Americans believe that members of Congress will favor the interests of those who donate to Super PACs over those who do not—and that Super PAC donors can pressure elected officials to alter their votes.”[112] When moneyed interests and the interests of an electorate diverge, “[m]ore than three-quarters of all respondents—77%—agreed that members of Congress are more likely to act in the interest of a group that spent millions to elect them than to act in the public interest.”[113] Bipartisan support exists for that claim too79% of Democrats compared to 81% of Republicans polled believed in that divergence.[114]

Americansregardless of political affiliationbelieve that their government is corrupt, more corrupt than other countries, and that this corruption is on the rise. They also believe that bought-for access constitutes a basis, or at least is partially responsible, for that perception. Therefore, at least from the public’s perspective, a general corruption pervades government, subverting a major theory that the Court used in arriving at its decision. These studies showing that American society is plagued by systemic and pervasive social inequalities, coupled with the public opinion indicating that the Court erred, problematize the Court’s perception of what constitutes politics as usual.

Yet in the face of overwhelming and inundating public opinion decrying the status quo of the contemporary American political system, the Court held that a maligned access is a required factor for any democracy and vindicated McDonnell’s actions on that theory. But as is shown, that is rarely the casestratified access exists according to a majority of Americans, and Americans believe that contributions or donations result in access. Although the Court implicitly supported a theory of equality of parity of access, it did not arrive there alone. Rather, it was aided by the flood of amicimost of whom were in fact, politicians, administrative officials, or public servantswho all supported McDonnell’s position and shared his fears.[115]

C.  How the Amici Blinded the Court to Public Opinion

The Court erred because instead of acknowledging the aforementioned public opinion and inequality, it deferred to the opinion of the amici writing on behalf of the Governor, as is evident by its almost rote repetition of the fears espoused by those amici as well as the fears espoused by the former Governor. Numerous amici wrote to the Court, mostly supporting the petitioner, McDonnell.[116] These amici all decried the supposedly deleterious effects of the court of appeals’ ruling, supporting McDonnell’s claims.[117] This Section focuses on the role some of those amici played, with an understanding that a caveat may exist in discussing their importance because they wrote or filed against the United States.

The Republican Governors Public Policy Committee’s (the “Committee”) amicus brief reinforced the centrality of access in any functioning democracy. First, the Committee noted that “facilitating ‘access’ is a central part of any modern elected official’s job” and then cited to instances by former Governor of Florida Jeb Bush, former Secretary of State Hillary Clinton, and former President of the United States Barack Obama that could be seen as corrupt or engaging money for influence under the court of appeals’ definition of an “official act” that the United States sought to affirm, mirroring the fear that the Court later expressed in their opinion—that the lower court decisions would punish normal acts of governance.[118] The Committee also believed that the decision would embolden prosecutors, much like the Court feared as well. Elucidating that argument, the Committee pivoted and reinforced the harmful ramifications on democracy of affirming the conviction, noting that “if other courts adopted this understanding of official act, potentially every elected official in the nation would be in danger of indictment by an overzealous federal prosecutor. To be sure, the prosecutor would be required to show the existence of a quid pro quo to obtain a conviction.”[119] As no public official or public servant would know if his or her conduct was lawful, he or she would fear acting at all, and ultimately, according to the Committee, democracy would suffer.

In addition, a group of Former Virginia Attorneys General strongly supported the Court’s first fear, namely, that the decision could harm governance and possibly weaken democracy. Citing to their vast experience, “including providing legal advice,”[120] these Former Virginia Attorneys General notedin line with both the Court’s eventual opinion and McDonnell“[t]he overly-expansive interpretation of official action in the decision below will disrupt the public life of Virginia and the other states within the Fourth Circuit, and it would create a different rule for participatory democracy in the Fourth Circuit than the one that applies in other circuits.[121] According to these amici, upholding the lower courts’ perspective on what constituted an “official act” would strike such a strong blow to public life as to disrupt it. Not only did these amici reinforce the argument of the possibly deleterious effects of the lower court’s decision, but also, much like the Court itself did, they discussed the necessity of access in a democracy.

Other politicians supported the aforementioned theory of access and the Court’s fears. Sixty Former State Attorneys General from states other than Virginia also supported McDonnell, and argued (in an exercise of hyperbole meriting mention) the deleterious effect of defining an “official act” as the court of appeals did.[122] Those former Attorneys General even noted that “it could chill the delivery of those services altogether,” and that even other individuals connected to governors and public officials would refrain from discussing political or policy issues out of fear of prosecution.[123] In this instance, the former State Attorneys General supported the Court’s first fear, but instead focused on the possibility that constituents would hesitate becoming politically involved.

In summary, amici, writing on behalf of McDonnell, flooded the Court with briefs, all indicating similar issuesthe overall deleterious effects of the court of appeals’ ruling. These amici hardly hid their stake or interest in the litigation, as well, directly indicating that they feared prosecution, again implicitly referencing that such conduct is politics as usual.[124] Referring back to the Court’s opinion, it becomes clear that the Court had these individuals in mindrather than the plethora of public opinionin arriving at its decision. Given that the Court then discussed those effects in its decision,[125] despite having already used statutory interpretation to arrive at its decision, an examination of the role the amici played in the Court’s decision is of value.

D.  How the Court’s Actions Relate to the Usefulness (or Lack Thereof) of Amicus Briefs

The Court’s use of amici provides insight into the possibly pernicious role that amicus briefs can play when they fail to represent public opinion or do not adequately represent both sides in any given case before the Supreme Court. Such a result indicates a general problem of elevating concentrated interests at the expense of diffuse ones and having an inability to protect minority groups or those without strong political voices.

Perhaps the possibility of amici providing a biased understanding of the issue in any case before the Court is unsurprising, given the rise in the role of amici over the past century in Supreme Court jurisprudence.[126] Not only have amici submitted more briefs, but also “[t]here is no question . . . that the frequency of such references [to amici] has been increasing over time.”[127] In many instances, the Court utilizes amici as a means of gaining insight into a specific matter before it, either providing alternative views on issues, “important technical or background information,” or at times, simply reinforcing the perspectives of the already existing parties.[128] Undoubtedly, therefore, amicus briefs are “an institutional part of U.S. court systems.”[129] However, they can also have a destructive effect of either misrepresenting or failing to represent parties in a Supreme Court decision.[130] For example, these briefs sometimes provide no value to the Court, instead reiterating what has already been argued and, therefore, providing no new information.[131] Regardless, these briefs have become so common“[i]ndeed. . . . so common that some judges are looking for ways to limit them”that a brief review of their limitations is of use.[132]

The Court can fall victim to a flood of one-sided amicus briefs, either due to the lack of proponents on one side of an issue or because of an inability to convey the opinions of one side effectively. Justice Scalia referred to this possibility in his dissent in Jaffee v. Redmond, in which, despite the adversarial nature of the American court system and the possibility of having multiple amici file on behalf of both parties, “[n]ot a single amicus brief was filed in support of petitioner.”[133] That was no surprise, according to Scalia, because “[t]here is no self-interested organization out there devoted to pursuit of the truth in the federal courts.”[134] A similar situation is at play in McDonnell, as few vehicles exist for the representation of public opinion in the form of amicus briefs beyond the non-profit organizations and think tanks that participated as amici and then Justices being cognizant of general public opinion. Here, much like in Jaffee, individuals could not represent themselves in a fashion similar to public officials. Although no formal organization existed to represent public opinion, the Court nonetheless could have considered that information, either because the Justices are “social beings confronted with the plethora of stimuli emanating from American culture, media and politics,”[135] or out of concern “about their legitimacy in the short and long-terms.”[136]

Beyond the plausibility of few organizations existing to actively represent public opinion before the Court,[137] the Court was also inundated with more than a dozen amicus briefs on behalf of McDonnell from the time he filed his Petition for a Writ of Certiorari to when he argued before the Court.[138] Only five organizations filed in support of the respondents, and all were filed only after the petition had been granted.[139] Regardless of whether that stark difference is due to the role the United States played as the respondent, “[i]n order to maximize their own public reputations or the reputation of the Court, the Justices need information about public opinion.”[140] In many instances, public opinion is unavailable on an issue before the court.[141] However, as discussed in Section III.B, that was not the case in McDonnell. Rather, the “groups most affected by [the] decision . . . likely [had] very pronounced views about how these issues should be resolved as a policy matter”[142] that contradicted the Court’s holding.

Accordingly, in McDonnell, the amici failed to provide the Supreme Court with an adequate representation of public opinion, instead blinding the Court to what the public truly believed. Rather than referring to the interests of all parties and the public, as Justice Scalia suggested in Jaffee was the interest “that this Court will have . . . prominentlyindeed, primarilyin mind,[143] the Court abrogated that responsibility. Although amicus briefs can play “an important role in the democratic process, . . . not just as an element of interest group lobbying in today’s society . . . but rather as an integral part of participatory democracy,”[144] public opinion did not factor into the voices of the amici.[145] Therefore, Justices were unable to look to “amicus briefs as a barometer of opinion on both sides of the issue;[146] instead, they were only presented one side. As a result, the voice of the one-sided amici overpowered the general American public’s collective voice.

E.  In Deferring to Amici and Neglecting Inequalities and Public Opinion, the Court Failed to Reinforce Democracy

As a result of the stark contrast between public opinion and the opinions presented to the Court by the amici as well as the Court’s heavy reliance on the opinions of the amici, the Supreme Court falsely believed it was acting as a democracy-reinforcing institution and actually promoted something wholly corrosive to democracy. Beyond the fact that it deferred to the voice of amici over the voice of the public, the Court failed to act as a democracy-reinforcing institution because of the plausibility or likelihood that its decision will actually hurt democracy and the public.

The concept of the Court acting as a democracy-reinforcing institution is best described by John Ely’s Democracy and Distrust.[147] Ely, in a particularly trite comment, referenced the role of the Supreme Court in contemporary society, noting, “[t]he Constitution may follow the flag, but is it really supposed to keep up with the New York Review of Books?”[148] This view is particularly valuable for understanding the role of the Court: specifically, as an adaptive branch of government that can respond to contemporary ideals, opinions, or sentiments, while still keeping with the general theme of the Constitution.[149] Here, academic opinion agrees that Ely proposes “a notion of representation which . . . forms the general theory of our entire constitution” and that the Supreme Court, in construing the more open-ended provisions of the constitution, should solely concern itself with preserving the ideal of representation . . . .”[150] In this sense, Ely’s theories uphold or describe a basic tenet that the Court should reinforce democracy by protecting minority populations while still upholding the importance of majority government.[151] The primary role of the Supreme Court, then, has been to protect “geographical outsiders,” the “literally voteless,” and the “functionally powerless.”[152] Here, the Court neglected that duty.

The Court failed to intervene in support of public opinion or represent the public’s interests, instead kowtowing to the voices of the elite few who submitted briefs as friends of the Court. The Court did not act in support of a neglected population, even though it should have intervened because the “market [was] malfunctioning.”[153] The market malfunctioned not solely because of an unideal outcome, but rather, because “the in’s [were] choking off the channels of political change to ensure they will stay in and the out’s will stay out . . . .[154] Here, individuals, already ingratiated with public servants as a result of their wealth, gained better and considerably more access. Further, the Court yielded to the voice of the few (the amici, who predominantly were past public servants either from Virginia or elsewhere) instead of the general public. As a result of yielding to a distinct and already empowered voice, a limited interestand not the public interestguided the Court’s decisionmaking.

Finally, the Court failed to act as a democracy-reinforcing institution because of the harmful effects of the Court’s decision on the general public. Although the Court’s actions may be largely invisible to most people, its “rulings have enormous impact on people in the most important, and sometimes the most intimate, aspect of their lives.”[155] The scourge of public corruption affects the very functioning of any democracy, including adversely affecting investment projects, causing a diminution of economic activity, encouraging inefficiency, contributing to a misallocation of human resources, creating uncertainty, and generally adversely affecting the poor more so than the rich.[156] Because public corruption has such a broad and injurious effect on democracies, the public stands to suffer from the Court’s decision.[157] Therefore, by supporting those firmly entrenched in government and those already benefitted, the Court acted “at the expense of individuals whom the Constitution is designed to protect.”[158]

The Court abrogated its role as a democracy-reinforcing institution not only because it acted against public opinion, but also, because as a result of its decision, the public stands to suffer. As a result of the Court supporting a specific (and already powerful) subset of the population and not the majority, as well as the plausibility of those actions actually harming both democracy and the general public, the Court failed in its role as a democracy-reinforcing institution.

IV.  Possible Solutions

This Note has explored a number of divergent areas where the Court erred in its McDonnell decision, including, but not limited to, its neglect of pervasive public opinion regarding government corruption and the reality of systemic inequalities (political and otherwise) in the United States, its overreliance on biased amici, and finally, an analysis of the bribery statute that, at base, is ill-equipped to handle contemporary prosecutions of public corruption. This Part assesses possible solutions for each one of those areas and is divided into three broader categories: (1) the Court’s failure to reinforce democracy resulting from its failure to recognize those inequalities and public opinion; (2) the Court’s reliance on amici briefs; and (3) the statute of concern in McDonnell.

These solutions not only tackle the issues at hand in McDonnellspecifically, how the Court failed as an institutionbut also attempt to remedy general issues surrounding contemporary public corruption law. With regards to the changes to the Court’s operations, this Note advocates enhancing certain democratic features of the Supreme Court and ensuring that the voice of the public heard throughout its halls, albeit with a deference to the Court’s inception as a politically insulated branch of government.

Further, policy remedies are necessary, as the McDonnell decision has already impacted prosecution strategy and other corruption cases across the Countrythis is far from a settled issue. As mentioned earlier, the U.S. Attorney’s Office for S.D.N.Y. retried Sheldon Silver and Dean Skelos. Elsewhere in the hallowed Chambers of the Thurgood Marshall Courthouse, the trial of Joe Percocoa top aide to New York Governor Andrew Cuomo, another subject of ethics investigationswas affected by the changes resulting from McDonnell.[159] Seemingly, this decision has not affected this particular office significantly given successful retrials and convictions.[160] However, just across the Hudson River, the decision has had negative effects: the District of New Jersey U.S. Attorney’s Office, having faced a mistrial, now dismissed all charges against Senator Robert Menendez.[161] This is far from a Northeastern problem, either. Across the country, prosecutors at all levels of government tackle corruption, regardless of the level of government at which it occurs or the type of illicit acts engaged in.[162] As a direct result of the McDonnell decision, prosecutors have strategized and developed new theories of prosecution, but not all of them have been successful. Therefore, the policy changes proposed here are necessary to empower prosecutors across the Country to battle the scourge of public corruption and restore efficacious governance.

A.  Rectifying the Court’s Failure to Reinforce Democracy

As established above, the Supreme Court failed to reinforce democracy by ignoring widespread public opinion that sees extensive government corruption in addition to ignoring societal and political inequalities. The source of such failures could arise from a number of areas, like the Court’s role as an elite institution or its self-perception as such, or even from the rules governing amici briefs.

In writing that “[i]t is emphatically the province and duty of the judicial department to say what the law is,”[163] Justice John Marshall ensured that the Court would be the final arbiter of executive and legislative actions.[164] The Supreme Court, therefore, can act as an institution designed to ensure majority rule while still safeguarding the rights of minority groups. Some take this theory to an extreme, arguing that the Court best analyzes the law when assessing legal questions with close scrutiny of public opinion.[165] Judges undertake emphatically democratic tasks, creating new law through their interpretation of statutes or prior common law.[166] How exactly the Supreme Court should actor under what mechanismsin order to validate public opinion in its decisionmaking is still a valuable question worth exploring.

First, judges must consider that they operate within a system which requires that “[t]he rules applied to the decision of individual controversies cannot simply be isolated exercises of judicial wisdom.”[167] In turn, recognizing that one operates within a vast chain of precedent and within society as a whole requires transparency, as “[a] judiciary that discloses what it is doing and why it does it will breed understanding.”[168] The flipside of requiring transparency, of course, is a limitation of insulation from the public. The Court, operating within a transparent system, requires awareness not only of its role relative to the people it effectively governs, but also, of its role relative to other institutions within government.[169] Doing so breaks the Court’s role solely as an interlocutor between the Constitution and contemporary legal questions, but does not totally abrogate it; rather, the Court still exhibits fidelity to features within the Constitution, but does so cognizant of its role relative to other documents, institutions, and peoples.

Second, and almost as a corollary to the first rule, judges must also keep abreast of information regarding the society they effectively govern through their decisionmaking. As “one cannot bridge the gap between society and law without having reliable information about society,” judges should strive to understand public opinion.[170] In arriving at such an end, “the Court must determine the public mood, develop a mode of rhetoric that the public finds acceptable, and make decisions that the public at least tolerates.”[171] Finding “any easy method, any three-prong test, to determine which definitions of public opinion should be admitted into constitutional adjudication and how much weight those definitions should be given” is not of significant importance, but rather, public opinion “should enter the multi-factored, balancing equation” of judicial decisionmaking.[172]

Such an entente between the Court and public opinion would empower the public to see itself as a legitimate actor of change. David Cole, in Engines of Liberty, provides a clear explanation of how the public could avail itself of a democracy-reinforcing Supreme Court. Cole argues that “[m]ost of the work of constitutional law reform takes place outside the federal courts” because “[o]verlapping state, federal, and international legal systems offer multiple possibilities for doing the groundwork necessary for constitutional change, whether in city councils, state legislatures, state courts, Congress, the executive branch, or international forums.”[173] As Cole posits, the public sets democratic actions in the Supreme Court in motion. Constitutional law, therefore, is innately and intensely democratic, and the result of political processesinasmuch as constitutional principles matter, so do advocates.[174]

As a caveat, an acknowledgement of public opinion does not connote an abandonment of all precedent and other forms of interpretation.[175] Rather, “[c]onstitutional law is designed to stand above ordinary politics, and it is notand should not bedirectly responsive to political pressure in the way that legislation or executive action is.”[176] Although “[t]he justices’ role is not to represent constituents,” some obeisance towards public opinion is evident.[177] Therefore, although the Supreme Court, under this approach, makes wholly new law and must in some way be insulated from political movements and politics more generally, it can and should respond to failures of democratic institutions and democracy more generally.

The Court should return to its role as a democracy-reinforcing institution, doing so by recognizing the system in which it operates and by acknowledging public opinion. Such an acknowledgment does not require an abrogation of using other forms of analysis in its decisionmaking, but rather, requires that the Court at least exhibit an awareness to the public mood. By recognizing the importance of public opinion in its decisionmaking, or at least by exhibiting an awareness to it, the Court can reinforce democracy by, as Ely mentioned, inserting itself where the political market malfunctions and limits access to representation to some.

B.  Rectifying the Court’s Reliance on Amicus Briefs

As discussed in Sections III.C and III.D, amicus briefs form a vital part of Supreme Court decisionmaking: in short, and at their best, they provide the Court with new and innovative approaches to understanding legal issues and allow for parties interested in the litigation, but not necessarily part of it, to express opinions. As Justice Black opined, “[m]ost cases before this Court involve matters that affect far more people than the immediate record parties,”[178] and amicus briefs allow for that representation. However, as mentioned in Sections III.C and III.D, amicus briefs can often represent a distorted or impartial view of a specific issue, and as a result, some attention to how the Court handles or processes amicus briefs may be of value.

The Court has come to rely heavily on amicus briefs, as in the 20142015 term, Justices cited amicus briefs in 54% of all signed opinions.[179] Beyond a heavy reliance on amicus briefs in general, the Court also relies on a specific subset of elite lawyers to both argue before the Court and file amicus briefs.[180] Both the heavy reliance on amicus briefs and on specialized lawyers are unlikely to change, especially as the “new hunger for information outside the record” grows.[181] However, the Court can scrutinize the motivations behind amicus briefs and institute certain rules regarding their admissibility.

First, the Court could benefit from assessing the motivations of amici. For example, a recent article by Allison Orr Larsen and Neal Devins found that quite often, when amici file briefs it is not a result of a self-interest, but rather at the behest of the parties in the pending litigation.[182] Essentially, “[w]hen the Court grants certiorari (or cert), these very lawyers strategize about which voices the Court should hear and they pair these groups with other Supreme Court specialists to improve their chances with the Court.”[183] Often, as a result, what is presented before the Court is not a culmination of individual actors attempting to provide background, clarity, or innovative approaches to a complex legal question, but rather something “orchestrated and intentional” by the litigating parties.[184] Accordingly, assessing the motivations behind an amicus brief would allow the Court to contextualize the brief in its entirety, as, for example, in McDonnell, where politicians filing briefs on behalf of another politician may not provide a wholly unbiased view. Although a primary purpose behind amicus briefs is to provide a specific view on an issue, contextualizing those views may provide the Court better perspective on the legal question as a whole.

Second, the Court can institute requirements regarding what amicus briefs must provide in order to be admitted. As mentioned above, these briefs can provide a useful insight into complex legal questions, but oftentimes fall prey to simply rehashing the opinions set forth in the briefs by the respective parties. Although a non-exhaustive list of what possible remedies exist to solve this amicus problem, the Court could explore the following options. Judge Posner suggests the following possibilities and allows amicus briefs

only when (1) a party is not represented competently or not represented at all; (2) the amicus has an interest in some other case that may be affected by the decision in the case before the court; or (3) the amicus has unique information or a unique perspective that can provide assistance to the court beyond what the lawyers for the parties can provide.[185]

Although providing myriad reasons for such a limitation, Judge Posner also hesitates at allowing interest group politics to pervade the Supreme Court and distort the judicial decisionmaking process.[186]

 Amicus briefs benefit the Court greatly, but also have the possibility of manipulating the Court’s perspective on an issue and adversely affecting a party in the case. By scrutinizing this process, the Court will ensure that amicus briefs that reach it actually aid it in its decisionmaking, rather than producing an echo chamber as was the case in McDonnell, in which amici merely repeated other amici or the petitioner and provided no new insight on the legal question before the Court. These suggestions would also assuage the problem evident in McDonnell, namely that amici flooded the Court to support the petitioners and grossly outnumbered the amici on behalf of the respondents.

Further, these suggestions would prevent the aforementioned fears espoused by Justice Scalia, namely, that certain groups fundamentally interested in the outcome of a certain case, but unable to organize and present their opinions, would be absent from consideration in the decisionmaking process.

C.  Rectifying the Basis of the Court’s Failure: A Statute Ill-Equipped to Tackle Corruption

Congress should also pass legislation that would reinforce contemporary public opinion’s broad perception of what constitutes corruption, countering the Supreme Court’s actions in McDonnell. Since the Court narrowly construed what constituted an “official act” for the bribery statute, Congress should defer to public opinion and repudiate that narrow construction. Finally, in harkening back to what the framers perceived as corrupt behavior, Congress should look to New York state (and its corruption legislation) as a means of providing some guidance.

The main statute designed to target public corruption explicitly, the bribery statute18 U.S.C. § 201is limited by language, and therefore is prone to interpretation by the Court, as in McDonnell. The statute defines the quo of the quid pro quo relationship as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity.”[187] Beyond the bribery statute, few other statutes or codes at the federal level are concerned exclusively with public corruption prosecutions. Enacted in 1946, Congress created the Hobbs Act with the intent of managing labor disputes.[188] However, the Department of Justice’s Justice Manual notes how “the extortion statute is frequently used in connection with cases involving public corruption.”[189] Beyond these statutes, the honest services fraud statute,[190] as well as the Travel Act,[191] have also been used as vehicles for prosecution. Finally, passed in 1970, with the Congressional intent of empowering prosecution of mob activity,[192] the Racketeer Influenced and Corrupt Organizations Act (“RICO”) now empowers prosecution of public corruption, assuming that a person be involved in an enterprise that operates through a pattern of racketeering activity.[193] All of the aforementioned statutes empower federal prosecutors to tackle public corruption;[194] however, none of these acts or statutes reference public corruption prosecution, as case law has illuminated that specific area of law.

Given that the federal statutes that cover public corruption rarely if ever directly refer to it, Congress should look to New York state for both clarifying the statute on what constitutes an “official act” and for determining if any new legislation could be passed that would better reflect the realities of political dealings and public opinion. In 2013, New York revisited its bribery statutes, with Governor Cuomo proposing the Public Trust Act which criminalized directly, without need for other statutes, the bribery of a public servant,[195] corrupting the government,[196] and the failure to report corruption.[197] The Public Trust Act, as ultimately enacted in 2014,[198] included the latter two proposed provisions as well as enhanced prosecutorial powers through changing the statute of limitations and evidentiary standards.[199] New York provides an opportune study, not only because of how pervasive public corruption is in the state,[200] but also because the New York statute accurately reflects public opinion on corruption and therefore is broadly worded.

Section 496 of New York’s Penal Law provides a model for public corruption legislation, providing statutes regarding what constitutes public corruption generally, and then also what constitutes corrupting the government.[201] Its bribery lawsenshrined in Section 200 of the Penal Lawalso provide some valuable guidance for possible federal laws, with Sections 200.10 through 200.12 specifically addressing quid pro quo relationships.[202] Specifically, the New York State Penal Law criminalizes bribery when any public servant receives any benefit “upon an agreement or understanding that his or her vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced . . . .”[203] Such an open definition of what constitutes the quo in a quid pro quo (that it could be any “vote, opinion, judgment, action, decision or exercise of discretion”) better relates to the reality of contemporary American politics.

Such legislation would better reflect the realities of public corruption at the national stage, understanding how public opinion factors into how to tackle the issue while also recognizing the benefits in perceiving it as an abuse of the public’s trust. Over the past thirty years, “convictions of federal officials and employees . . . [comprised] about 56% of all convictions.”[204] The majority of these charges come under Title 18, as mentioned above, “with the most common specific charges being related to bribery, conspiracy, embezzlement, false statements, and theft.”[205] However, divided at the federal level, for the 9,101 indictments filed over the same period, the charges come from a diverse range of acts, spanning across at least four different titles of the U.S. Code.[206] Because of the wide variety of statutes used to target public corruption, the public could benefit from a singular statute harmonizing these factors and construing it as an abuse of the public trust.

Defining corruption similarly to the New York state statute would also approximate the public’s view of what constitutes corrupt behavior. Public opinion, as indicated above, regards the intent and context of the corrupt actors, rather than on whether the items exchanged actually constituted something bestowed on a politician by the virtue of the politician’s public office. Essentially, if a public servant used “his public office primarily to serve his own ends,” the servant engaged in corrupt behavior, and more importantly, “[t]his understanding of corruption focuses the discussion on the intent and context of the potentially corrupt actor (or actors).”[207] Under this approach, it was not so much the form or specific acts carried out by the politician or public servant, but rather, the simple fact that by doing so, the politician served his or her own ends and not his or her constituents.

If Congress is unable to pass new legislation concerning public corruption, it at least should support a clarification of the statute. Currently, two members of CongressTom Suozzi (D-N.Y.) and Brian Fitzpatrick (R-Pa.)have proposed bipartisan legislation to clarify the statutory defect that resulted from the Court’s decision. Suozzi, saying that “[w]e can’t allow corruption convictions to be overturned based on legal technicalities,” unveiled the Close Official Acts Loophole Act, which would borrow language from the federal conflicts of interest statutes and apply that language to what constitutes an “official act.”[208] Explaining the rationale behind the bill, Fitzpatrick, a former Supervisory Special Agent for the Federal Bureau of Investigation (“FBI”) and the national supervisor for its Public Corruption Unit, noted, “[c]orruption can and does take many different forms, and we must provide investigators and prosecutors with all the tools they need to combat [its] erosive effects . . . .”[209] The bill would elaborate what constituted the “quo” of a quid pro quo relationship, indicating that acting on “any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit” in return for some pecuniary benefit would constitute bribery.[210]

Of note, passing such amendments as opposed to passing new legislation mirroring New York’s would also allay the Court’s concerns of overeager prosecutions and criminalizing all forms of governance. This list, proposed by Suozzi and Fitzpatrick, mirrors the one in New York, in some capacity, expanding what constitutes an “official act” to matters related to the discretion of the public servant.[211] However, it still draws on language from already existing statutes, which the Court passively approved in its opinion. Further, the petitioner differentiated the bribery statute from the already existing statutes on the basis of these semantic differences, but did not denigrate those specific statutes.[212]

Such legislation is necessary because it better covers the nefarious aspects of access explored by this Note. By expanding what constitutes an “official act” and bringing it line with aforementioned public opinion and certain realities of access, Congress can ensure that the public’s perspective on what constitutes corruption is enshrined in law. Further, by enshrining that definition in law, Congress will rectify the situationof a limited definition of what constitutes corruptioncreated by the Supreme Court in McDonnell.


A number of possible caveats exist to the arguments made in this Note. I did not explore whether the Court’s decision would ultimately benefit the publicperhaps the decision and its logical results would allow for public servants to more freely interact with their constituents with no fear of prosecutionor harm it. Beyond that, I also assumed that the presence of multiple amici on behalf of the petitioner caused an uneven playing field against the respondent, the United States, which may also not be the case. The instant case is also factually contingent on amici not representing public opinionmany instances may exist where amici do represent public opinion (and do so very well), thus questioning another argument made here. Despite these caveats, the Court’s decision has already had real effects on democracy.

As mentioned earlier, the Court’s decision, affected a number of other decisions in a small amount of time. The deleterious effect mentioned, however, by the Court, amici, and McDonnell, might be misplaced. In the wake of the decision, various courts of appeal have overturned convictions, reversing and remanding them for reconsideration in line with McDonnell. Yet the U.S. Attorney’s Office for S.D.N.Y.a powerhouse of public corruption prosecutionsand other U.S. Attorney’s Offices across the country announced they would retry them, succeeding in winning convictions.[213] In fact, at the time of reversal, the Second Circuit Court of Appeals even noted that the evidence submitted in two prominent S.D.N.Y. casesthose of Dean Skelos and Sheldon Silverwas sufficient to convict.[214] The Court’s fear of giving prosecutors a carte blanche may have been misplaced, as prosecutors continue their zealous attempt to rid statehouses, bureaucracies, and Congress of corruption.

Additionally, the writing of this Note occurred as the Special Counsel Investigation into Russia’s influence on the 2016 presidential election was underway.[215] Various public officials, non-profit organizations, and politicians raised numerous allegations regarding President Trump’s and his aides’ relationships with Russian officials and representatives. In these allegations, these public officials, non-profit organizations, and politicians accuse the President and his aides of some type of corruption.[216] In such a context, the importance of McDonnell’s outcome increases, especially as corruption became a politicized issue in the 2016 election.[217] With a limited scope on what constitutes corruption, it is possible that some acts could go unnoticed and unprosecuted.

However, even if “[a] means can be justified only by its end”[218] and the ultimate effect of the holding is limited, the Court’s process of arriving at its decision is also worrisome. That the Court deferred to amici, in spite of overwhelming public opinion opposing the views of those amici, ultimately calls into question the role of amici, or at least how the Court interacts with them and the public. A majority of those Americans surveyed, cutting across tense political lines, viewed, and still view, the Court’s reasoning as problematic, suggesting that the Court’s motivations should not go unquestioned.

A further question at play in the litigation, and one this Note touches tangentially, is how to manage the Supreme Court when it fails to police itself. Despite its design as an institution insulated from politicking, as described above, the Court must eschew devolving into an elitist institution completely unaware or ignorant to realities of contemporary social ills. Of course, the Court is not wholly insulated to public opinion. Jurisprudence on a number of legal issuesincluding privacy rights related to gay marriage, the right to contraception, school integration, and other issuesindicate the Court’s willingness to contemplate social developments and public opinion in its decisionmaking.[219] Further, the Supreme Court is often most powerful when it follows public opinion because “justices often delay or minimize their interventions” when “[s]ensitive to the possibility of backlashes. . . .[220] Given that public opinion ra              n counter to the Court’s holding, the question of what possible backlash exists emerges and further problematizes the Court’s holding.

Accordingly, from an open snub to public sentiment to an unabashed, almost sycophantic, restatement of the many amici (representing public servants, politicians, or former versions of the two) who filed on behalf of McDonnell, the Court narrowed the definition of what constituted an “official act.” By doing so, it also limited what constituted quid pro quo behavior and propagated a theory of access wholly corrosive to democracy. Finally, if doing so were not enough, the Court’s reasoning in McDonnell shows no deference to understanding (let alone assuaging) the systemic political, economic, and social inequalities in the United States, or to public opinion supporting change regarding the Court’s view on access. As a result, in its decision in McDonnell, the Court repudiated its role as a democracy-reinforcing institution.


[*] *..              Executive Postscript Editor, Southern California Law Review, Volume 92; J.D. Candidate, 2019, University of Southern California Gould School of Law; B.A. 2016, Columbia University. My deepest gratitude goes to Professor Sam Erman for his guidance, to Professor Judith Russell, and Alexis Grenell. Lastly, thank you to my family, my friends, and the fine editors and staff of the Southern California Law Review for their excellent work.

 [1]. Baron De Montesquieu, 1 The Spirit Of The Laws 12–13 (Thomas Nugent trans., Hafner               Press 1975) (1748).

 [2]. McDonnell v. United States, 136 S. Ct. 2355, 2361 (2016).

 [3]. Id. at 2375.

 [4].               Id.

 [5].               United States v. Skelos, 707 F. App’x 733, 735 (2d Cir. 2017) (discussing how sufficient evidence existed to convict Skelos, but that the Second Circuit had to vacate and remand the case because of the erroneous jury instructions).

Upon independent review of the record, and for the reasons principally set forth in the district court’s orders and judgments, we conclude that all of defendants’ remaining challenges to their convictions are without merit. Nevertheless, because we identify charging error on the ‘official act’ elements of the crimes and conviction, which we cannot conclude is harmless beyond a reasonable doubt, we VACATE the district court’s May 16, 2016 judgments and REMAND the case for further proceedings consistent with this order.


 [6].               United States v. Silver, 864 F.3d 102, 106 (2d Cir. 2017) (similarly discussing how sufficient evidence existed and erroneous jury instructions created by the McDonnell decision forced the court of appeals to vacate and remand).

Though we reject Silver’s sufficiency challenges, we hold that the District Court’s instructions on honest services fraud and extortion do not comport with McDonnell and are therefore in error. We further hold that this error was not harmless because it is not clear beyond a reasonable doubt that a rational jury would have reached the same conclusion if properly instructed, as is required by law for a verdict to stand.


 [7]. Id.

 [8]. Vivian Wang, Guilty, Again: Dean Skelos, Former Senate Leader, Is Convicted of Corruption in Retrial, N.Y. Times (July 17, 2018), https://nyti.ms/2JALyJw; Benjamin Weiser, Sheldon Silver Is Convicted in 2nd Corruption Trial, N.Y. Times (May 11, 2018), https://nyti.ms/2Ic83Zm.

 [9]. Matt Ford, Has the Supreme Court Legalized Public Corruption?, Atlantic (Oct. 19, 2017), https://www.theatlantic.com/politics/archive/2017/10/menendez-mcdonnell-supreme-court/543354 (discussing how the decision in McDonnell v. United States hung over the prosecutor’s case).

 [10]. Nick Corasaniti & Nate Schweber, Corruption Case Against Senator Menendez Ends in Mistrial, N.Y. Times (Nov. 16, 2017), https://nyti.ms/2hEl6a6.

 [11]. Alan Feuer, Why Are Corruption Cases Crumbling? Some Blame the Supreme Court, N.Y. Times (Nov. 17, 2017), https://nyti.ms/2hJtkhl.

 [12]. Niall McCarthy, Corruption of Government Officials Ranked Americans’ Top Fear of 2017, Forbes (Oct. 19, 2017, 8:05 AM), https://www.forbes.com/sites/niallmccarthy/2017/10/19/corruption-of-government-officials-ranked-americans-top-fear-of-2017-infographic.

 [13]. Matt Zapotosky et al., Prosecutors Will Drop Cases Against Former Va. Governor Robert McDonnell, Wife, Wash. Post (Sept. 8, 2016), http://wapo.st/2cakuAZ.

 [14]. Press Release, U.S. Att’y’s Office for the E.D. Va., Former Virginia Governor and Former First Lady Indicted on Public Corruption and Related Charges (Jan. 21, 2014) [hereinafter Press Release, Former Virginia Governor and Former First Lady Indicted], https://www.justice.gov/usao-edva/pr/former

 [15]. Id.

 [16]. Id.

 [17]. See Indictment at 4–5, United States v. McDonnell, No. 3:14-CR-12 (E.D. Va. Jan. 21, 2014), ECF No. 1.

 [18]. Id. at 6.

 [19]. Id.

 [20]. Id. at 6–7.

 [21]. Press Release, Former Virginia Governor and Former First Lady Indicted, supra note 14.

 [22]. Indictment, supra note 17, at 8.

 [23]. Id. at 26.

 [24]. Id. at 9.

 [25]. Id. at 11.

 [26]. See Indictment, supra note 17, at 7–32, for a full account of the enrichment, returns, and quid pro quo relationship between Star Scientific and Governor Bob McDonnell.

 [27]. Id.

 [28]. Id.

 [29]. United States v. McDonnell, 792 F.3d 478, 488 (4th Cir. 2015).

Two days after this private dinner—on May 1, 2011—Mrs. McDonnell received an email via Williams. The email included a link to an article entitled “Star Scientific Has Home Run Potential,” which discussed Star’s research and stock. Mrs. McDonnell forwarded this email to Appellant at 12:17 p.m. Less than an hour later, Appellant texted his sister, asking for information about loans and bank options for their Mobo properties. Later that evening, Appellant emailed his daughter Cailin, asking her to send him information about the payments he still owed for her wedding.

The next day, May 2, Mrs. McDonnell and Williams met at the Governor’s Mansion to discuss Anatabloc. However, Mrs. McDonnell began explaining her family’s financial woes—thoughts about filing for bankruptcy, high-interest loans, the decline in the real estate market, and credit card debt. . . .

Three days later, on May 5 at 11 a.m., Appellant met with Secretary Hazel and Chief of Staff Martin Kent to discuss the strategic plan for the state’s health and human resources office. Shortly after the meeting, Appellant directed his assistant to forward to Hazel the article about Star that Mrs. McDonnell had earlier brought to Appellant’s attention.

Id. (footnotes omitted).

 [30]. Rosalind S. Helderman & Matt Zapotosky, Ex-Va. Governor Robert McDonnell Guilty of 11 Counts of Corruption, Wash. Post (Sept. 4, 2014), http://wapo.st/1vSbW8x (“Three jurors who spoke about the verdict said the decision was an emotional one, particularly considering Robert McDonnell’s long career of public service. But they said they believed that the facts and the law were clear and that the verdict had not, in the end, been a difficult one to reach.”); see also Press Release, U.S. Att’y’s Office for the E.D. Va., Former Virginia Governor and Former First Lady Convicted on Public Corruption Charges (Sept. 4, 2014) [hereinafter Press Release, Former Virginia Governor and Former First Lady Convicted], https://www.justice.gov/opa/pr/former-virginia-governor-and-former-first-lady-convicted-public-corruption-charges.

 [31]. Frank Green et al., Bob and Maureen McDonnell Convicted in Historic Corruption Trial, Richmond Times-Dispatch (Sept. 4, 2014), http://www.richmond.com/news/state-regional/virginia-politics/bob-mcdonnell-convicted-on-of-counts-maureen-mcdonnell-on-of/article_7b9b6118-343c-11e4-bef2-001a4bcf6878.html; see also Press Release, Former Virginia Governor and Former First Lady Convicted, supra note 30.

 [32]. Green et al., supra note 31.

 [33]. McDonnell, 792 F.3d at 486.

 [34]. Id. at 505–06.

 [35]. Id.

 [36]. Id. at 505.

 [37]. Id. at 506.

 [38]. See id.

 [39].                             Id. at 520;               Travis Fain, McDonnell Appeals Again, Stays Free for Now, Daily Press (July 24, 2015, 9:40 AM), http://www.dailypress.com/news/politics/dp-mcdonnell-appeals-again-stays-free-for-now-20150724-story.html.

 [40]. 18 U.S.C. § 201(b)(2) (2018) (bribery of public officials); id. § 201(a)(3) (“official act” definition).

 [41]. McDonnell, 792 F.3d at 504 (noting that “in their proposed instructions for honest-services wire fraud, both parties sought to import the definition of bribery set forth in 18 U.S.C. § 201(b)(2) . . . the parties [also] agreed that a charge of extortion under color of official right has four elements” one of which requires the defendant to have “‘obtained a thing of value’ . . . ‘knowing that the thing of value was given in return for official action.’”). The court of appeals affirmed the district court’s use of § 201(b)(2)’s definition of bribery in its instructions to the jury regarding the honest services wire fraud statute. The court also affirmed the lower court’s jury instructions for the charge of extortion under color of official right. Id. at 504.

 [42]. Id. (citing 18 U.S.C. § 201(a)(3)) (internal quotations omitted).

 [43]. Id. at 513 (“Even if this were so, it is not a statement of law. Rather, it seems to us a thinly veiled attempt to argue the defense’s case. . . . Taken as a whole, Appellant’s proposed instruction on the meaning of ‘official act’ failed to present the district court with a correct statement of law.”) (discussing the defendant, Governor Bob McDonnell’s jury instructions which proposed that no settled practices or routine behavior could constitute official acts for the purpose of the statutes under which he was indicted).

 [44]. Id. at 510–11 (“We further observe that an ‘official act’ may pertain to matters outside of the bribe recipient’s control. . . . [M]ere steps in furtherance of a final action or decision may constitute an ‘official act.’ . . . [There is] no difficulty recognizing that proof of a bribe payor’s subjective belief in the recipient’s power or influence over a matter will support a conviction for extortion under color of official right.”).

 [45]. Petition for Writ of Certiorari at i, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474) (discussing the primary issue of concern of the appeal).

Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a felony to agree to take “official action” in exchange for money, campaign contributions, or any other thing of value. The question presented is whether “official action” is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.


 [46]. Id. at i, 27–30.

 [47]. Id. at 14 (citing McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014)).

 [48]. Id. (citing McCutcheon, 134 S. Ct. at 1450–51).

 [49]. Brief for Respondent at 12, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474).

 [50]. Id. at 13–14 (“It has thus been settled for more than a century that the federal bribery statute ‘cover[s] any situation in which the advice or recommendation of a Government employee would be influential,’ even if the employee does not ‘make a binding decision.’ (citations omitted)).

 [51]. The list for the Petitioner included the National Association of Criminal Defense Lawyers, the Republican Governors Public Policy Committee, a group of “Former Federal Officials,” the American Center for Law and Justice, a group of “Public Policy Advocates and Business Leaders,” a group of “Law Professors,” a group of “Former Attorneys General,” a group of sixty non-Virginian “Former State Attorneys General,” a group of “Virginia Law Professors,” members of the Virginia General Assembly, and Benjamin Todd Jealous, Delores L. McQuinn, and Algie T. Howell Jr. See McDonnell v. United States, SCOTUSblog, http://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states (last visited Nov. 29, 2018) [hereinafter McDonnell v. United States, SCOTUSblog].

 [52]. Robert Barnes, Supreme Court Will Review Corruption Conviction of Former Va. Governor Robert McDonnell, Wash. Post (Jan. 15, 2016), http://wapo.st/1Zq6fsP?tid=ss_tw&utm_term=

 [53]. The list for the Respondents included the Citizens for Responsibility and Ethics in Washington, the Brennan Center for Justice at N.Y.U. School of Law, Judicial Watch, Inc. and the Allied Educational Foundation, Public Citizen, Inc. and Democracy 21, and the Campaign Legal Center. See McDonnell v. United States, SCOTUSblog, supra note 51.

 [54]. McDonnell v. United States, 136 S. Ct. 2355, 2375 (2016).

 [55]. Id. at 2371.

 [56]. Id. at 2372 (emphasis added).

 [57]. Id. at 2367 (“The issue in this case is the proper interpretation of the term ‘official act.’ Section 201(a)(3) defines an ‘official act’ as ‘any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.’”).

 [58]. Federal Corruption Statutes—Bribery—Definition of “Official Act”—McDonnell v. United States, 130 Harv. L. Rev. 467, 470 (2016) (discussing the role of statutory interpretation in the Court’s decisionmaking).

 [59]. McDonnell, 136 S. Ct. 2368 (“To choose between those competing definitions, we look to the context in which the words appear. Under the familiar interpretive canon noscitur a sociis, ‘a word is known by the company it keeps.’” (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961))); see also id. at 2368–69 (containing a review of the Court’s analysis of various dictionaries).

 [60]. Id. at 2372–73.

 [61]. Ryan S. Killian, Comment, Dicta and the Rule of Law, 2013 Pepp. L. Rev. 1, 7–8 (2013) (“Classically, dicta is regarded as any portion of the opinion that is inessential to the outcome.” (footnote omitted)) (discussing how dicta plays a role in a Court opinion, being unnecessary towards the reasoning or logic behind the actual holding).

 [62]. Jerome N. Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Colum. L. Rev. 1259, 1259 (1947); see also Justice Felix Frankfurter, Sixth Annual Benjamin N. Cardozo Lecture Delivered Before the Bar Association of the City of New York: Some Reflections on the Reading of Statutes (Mar. 18, 1947), in 2 Rec. Ass’n B. City N.Y. 213, 216–17 (1947), reprinted in 47 Colum. L. Rev. 527, 530 (1947) (similarly concluding).

 [63]. McDonnell, 136 S. Ct. at 2372–73.

 [64]. Justice Frankfurter, supra note 62, at 214, reprinted in 47 Colum. L. Rev. at 528.

 [65]. In a sense, the fears espoused by the Court in this instance were not new. In United States v. Sun-Diamond Growers, 526 U.S. 398, 407 (1999), the Court discussed the relevant “absurdities” in creating a clear-cut rule regarding corruption or quid pro quo exchanges in that case, because doing so would criminalize “a complimentary lunch for the Secretary of Agriculture.” Mark Walsh, Supreme Court Narrows Definition of “Official Acts” in Public Corruption Laws, Educ. Week (Jun. 27, 2016, 12:08 PM), http://blogs.edweek.org/edweek/school_law/2016/06/supreme_court_narrows_definiti.html. See Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United (2014), for a discussion of prior court precedence on the issue of public corruption and for a discussion on the role that fears of criminalizing politics as usual play in Supreme Court decisions.

 [66]. McDonnell, 136 S. Ct. at 2372.

 [67]. Tara Malloy, Symposium: Is It Bribery or “The Basic Compact Underlying Representative Government”?, SCOTUSblog (June 28, 2016, 4:03 PM), http://www.scotusblog.com/2016/06
/symposium-is-it-bribery-or-the-basic-compact-underlying-representative-government (“As all Hamilton fans know, it pays to be in ‘The Room Where It Happens.’ Taken to its logical end, the Court’s approach permits officials literally to put ‘access’ up for sale . . . .”) (analogizing how the concept of access approved or validated by the Court goes beyond a general access).

 [68]. Id.

 [69]. McDonnell, 136 S. Ct. at 2372.

 [70]. Id.

 [71]. Id. at 2373 (citing Skilling v. United States, 561 U. S. 358, 402–03 (2010)).

 [72]. Id. (“[W]e decline to ‘construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards’ of ‘good government for local and state officials.’” (quoting McNally v. United States, 483 U.S. 350, 360 (1987))).

 [73]. Id. (citing Kolender v. Lawson, 461 U. S. 352, 358 (1983)).

 [74]. U.S. Dep’t of Justice, Justice Manual § 9-85.210 (2018), https://www.justice.gov/usam

Consultation with the Public Integrity Section of the Criminal Division is required in all federal criminal matters that focus on violations of federal or state campaign financing laws, federal patronage crimes, and . . . . These include . . . prosecutive theories that focus on election fraud or campaign fund raising violations using 18 U.S.C. §§ 1341, 1343, and 1346; 18 U.S.C. § 1952; 18 U.S.C. §§ 1956 and 1957.

Id. See generally McDonnell, 136 S. Ct. at 2355.

 [75]. From the Court’s opinion, it is unclear whether the Justices were aware of this process. However, no mention of it is made in the opinion. See generally McDonnell, 136 S. Ct at 2355.

 [76]. Malloy, supra note 67; see also McDonnell, 136 S. Ct. at 2375.

 [77]. See generally McDonnell, 136 S. Ct. at 2361–64 (describing the various engagements and events organized); Malloy, supra note 67.

 [78]. See supra Part II.

 [79]. For a discussion on what constitutes a participatory democracy, as well as for a philosophical basis on the social contract, governance, democracy more broadly, and other theories underpinning American society, see Jean Jacques Rousseau, The Social Contract & Discourses (G.D.H. Cole ed. & trans., E.P. Dutton & Co. 1913) (1782), http://lf-oll.s3.amazonaws.com/titles/638/0132_Bk.pdf.

 [80]. The reasons for such inequality are broadly discussed in this Note, but are not explored heavily.

 [81]. See Jeffrey R. Brown & Jiekun Huang, All the President’s Friends: Political Access and Firm Value, CATO Inst.: Res. Briefs in Econ. Pol’y, Aug. 2017, at 1–2, https://object.cato.org/sites/cato.org
/files/pubs/pdf/rb83.pdf (“First, political access may enable firms to secure contracts to provide goods or services to government. . . . Second, companies with direct access to politicians can seek regulatory relief and influence political decision-making. . . . Third, access to politicians may enable companies to gain an informational advantage about government policies and actions . . . .”) (discussing how access constitutes a competitive advantage and power for organizations).

 [82]. 20 Facts About U.S. Inequality that Everyone Should Know, Pathways Mag. (2011), http://inequality.stanford.edu/publications/20-facts-about-us-inequality-everyone-should-know (discussing wage inequality, CEO pay inequality, homelessness, education wage premium inequality, gender pay gaps, occupational sex segregation, racial gaps in education, racial discrimination, child poverty, residential segregation, health insurance, intragenerational income mobility, bad jobs inequality, discouraged workers, wealth inequality, intergenerational income mobility, deregulation of the labor market, job losses, immigration, and incarceration).

 [83]. Tara Siegel Bernard, A Citizen’s Guide to Buying Access, N.Y. Times (Nov. 18, 2014), https://nyti.ms/1vnwgyR (“The findings are far from shocking: Those emails that offered the prospect of a donor meeting were three times as likely to result in a meeting than those offering the prospect of a constituent meeting, [with] a far greater chance of securing meetings with more senior officials, including . . . members of Congress.”) (discussing a study that cold-called or wrote politicians with the experiment testing the different responses for active donors versus local constituents).

 [84]. See Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 724 (1985) (discussing the role that minority status plays in access, whether it may be discrete minorities or diffuse ones).

 [85]. See, e.g., Zoltan L. Hajnal et al., Minorities and Direct Legislation: Evidence from California Ballot Proposition Elections, 64 J. Pol. 154, 174–75 (2002).

 [86]. Aaron Glantz & Emmanuel Martinez, For People of Color, Banks Are Shutting the Door to Homeownership, Reveal news (Feb. 15, 2018), https://www.revealnews.org/article/for-people-of-color

 [87]. Devah Pager & Hana Shepherd, The Sociology of Discrimination: Racial Discrimination in Employment, Housing, Credit, and Consumer Markets, 34 Ann. Rev. So. 181, 187 (2008).

 [88]. Ronald Weich & Carlos Angulo, Racial Disparities in the American Criminal Justice System, in Rights at Risk: Equality in an Age of Terrorism 186 (Dianne M. Piché et al. eds., 2002).

 [89]. Kim Rueben & Sheila Murray, Racial Disparities in Education Finance: Going Beyond Equal Revenues passim (Urban-Brookings Tax Policy Ctr., Paper No. 28, 2008), https://www.taxpolicycenter

 [90]. Daniel M. Butler & David E. Broockman, Do Politicians Racially Discriminate Against Constituents? A Field Experiment on State Legislators, 55 Am. J. Pol. Sci. 463, 472 (2011).

 [91]. Katherine Levine Einstein & David M. Glick, Does Race Affect Access to Government Services? An Experiment Exploring Street Level Bureaucrats and Access to Public Housing, 61 Am. J. Pol. Sci. 100, 100 (2017).

 [92]. Bernard, supra note 83.

 [93]. Christina Pazzanese, The Costs of Inequality: Increasingly, It’s the Rich and the Rest: Economic and Political Inequities Are Interlaced, Analysts Say, Leaving Many Americans Poor and Voiceless, Harv. Gazette (Feb. 8, 2016), https://news.harvard.edu/gazette/story/2016/02/the-costs-of-inequality-increasingly-its-the-rich-and-the-rest.

 [94]. See Frederick Solt, Economic Inequality and Democratic Political Engagement, 52 Am. J. Pol. Sci. 48, 53–58 (2008).

 [95]. Id. at 57–58.

 [96]. Joseph Stiglitz, The Price of Inequality: How Today’s Divided Society Endangers Our Future 130 (2012).

 [97]. Id.

 [98]. Zoltan Hajnal et al., Voter Identification Laws and the Suppression of Minority Votes, 79 J. Pols. 363, 363 (2017).

 [99]. Christopher Uggen et al., Felony Voting Rights and the Disenfranchisement of African Americans, 5 Souls 48 (2003).

 [100]. Stiglitz, supra note 96, at 164.

 [101]. See Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1242 (1991) (“The embrace of identity politics, however, has been in tension with dominant conceptions of social justice. Race, gender, and other identity categories are most often treated . . . as vestiges of bias or domination—that is, as intrinsically negative frameworks in which social power works to exclude or marginalize those who are different.”).

 [102]. Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 14–15 (2009) (arguing that the Supreme Court often follows public opinion on matters deemed especially contentious).

 [103]. Jim Clifton, Explaining Trump: Widespread Government Corruption, Gallup News (Jan. 6, 2016), http://news.gallup.com/opinion/chairman/188000/explaining-trump-widespread-government-corruption.aspx.

 [104]. 60 Minutes/Vanity Fair Poll: Corruption, CBS News: 60 Minutes (June 9, 2015), https://www.cbsnews.com/news/60-minutesvanity-fair-poll-corruption.

 [105]. 75% in U.S. See Widespread Government Corruption, Gallup News (Sept. 19, 2015), http://news.gallup.com/poll/185759/widespread-government-corruption.aspx.

 [106]. See supra Part II.

 [107]. Drew DeSilver & Patrick Van Kessel, As More Money Flows into Campaigns, Americans Worry About Its Influence, Pew Res. Ctr.: Fact Tank (Dec. 7, 2015), http://www.pewresearch.org/fact-tank/2015/12/07/as-more-money-flows-into-campaigns-americans-worry-about-its-influence.

 [108]. Americans’ Views on Money in Politics, N.Y. Times (June 2, 2015), https://nyti.ms/2kajjpi; Nicholas Confessore & Megan Thee-Brenan, Poll Shows Americans Favor an Overhaul of Campaign Financing, N.Y. Times (June 2, 2015), https://nyti.ms/1HIaEhH.

 [109]. Daniel Hensel, New Poll Shows Money in Politics Is a Top Voting Concern, Issue One (June 29, 2016), https://www.issueone.org/new-poll-shows-money-in-politics-is-a-top-voting-concern.

 [110]. Americans’ Views on Money in Politics, supra note 108.

 [111]. Id.

 [112]. National Survey: Super PACs, Corruption, and Democracy, Brennan Ctr. for Just.
(Apr. 24, 2012), https://www.brennancenter.org/analysis/national-survey-super-pacs-corruption-and-democracy.

 [113]. Id.

 [114]. Id.

 [115]. See supra note 51 (listing all the amici who filed in support of McDonnell).

 [116]. Compare supra note 51 (listing groups filing amicus briefs on behalf of petitioner), with supra note 53 (listing groups filing amicus briefs on behalf of respondent).

 [117]. Brief for Am. Ctr. for Law & Justice as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for Former Federal Officials as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for Former Va. Atty’s Gen. as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for Jealous et al. as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for James Madison Ctr. for Free Speech as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for Law Professors as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for Members of Va. Gen. Assemb. as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for Nat’l Ass’n of Crim. Def. Lawyers as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for Republican Governors Pub. Policy Comm. as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for Pub. Policy Advocates & Bus. Leaders as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for Seventy-Seven Former State Att’ys Gen. (Non-Va.) as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474); Brief for U.S. Justice Found. et al. as Amici Curiae for Petitioner, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474).

 [118]. Brief for Republican Governors Pub. Policy Comm. as Amici Curiae for Petitioner at 12–14, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474).

 [119].               Brief for Republican Governors Pub. Policy Comm. as Amici Curiae for Petitioner in Support of Petition for a Writ of Certiorari at 8–9, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474).

 [120]. Brief for Former Va. Att’ys Gen. as Amici Curiae for Petitioner at 2, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474).

 [121]. Id. at 4, 12–15.

 [122]. Brief for Sixty Former State Att’ys Gen. (Non-Va.) as Amici Curiae for Petitioner at 17–18, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474) (“Dangling the threat of criminal liability over every lunch with a lobbyist and every meeting with an interest group would impede the proper functioning of state and local governments.”).

 [123]. Id. at 17–20.

 [124]. Brief for Members of Va. Gen. Assemb. as Amici Curiae for Petitioner at 2, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474) (referring to the interest of amici).

The conviction of Governor Robert McDonnell on a uniquely broad interpretation of the federal corruption statutes blurs the line between honest political interactions with constituents and public corruption. It now appears that accepting gifts from a constituent—even in the absence of the legislator’s promising or undertaking an official act—may lead to federal prosecution should the constituent request even the slightest assistance from the legislator.


 [125]. See supra Part II.

 [126]. See Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743, 744 (2000) (“In one respect, however, there has been a major transformation in Supreme Court practice: the extent to which non-parties participate in the Court’s decision-making process through the submission of amicus curiae, or friend-of-the-court, briefs. Throughout the first century of the Court’s existence, amicus briefs were rare.”); see also Andrew Jay Koshner, Solving the Puzzle of Interest Group Litigation 7–11 (1998) (exploring the increasing role of public interest participation before the Supreme Court).

 [127]. Kearney & Merrill, supra note 126, at 757.

 [128]. Id. at 745.

 [129]. Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 Fl. St. U. L. Rev. 315, 319 (2008).

 [130]. See Kearney & Merrill, supra note 126, at 746–47, 784–87.

 [131]. See Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997).

After 16 years of reading amicus curiae briefs the vast majority of which have not assisted the judges, I have decided that it would be good to scrutinize these motions in a more careful, indeed a fish-eyed, fashion. The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed.

Id. (Posner, J., in chambers).

 [132]. Garcia, supra note 129, at 316.

 [133]. Jaffee v. Redmond, 518 U.S. 1, 35–36 (1996) (Scalia, J., dissenting).

 [134]. Id. at 36.

 [135]. Roy B. Flemming & B. Dan Wood, The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods, 41 Am. J. Pol. Sci. 468, 471 (1997).

 [136]. Lee Epstein & Andrew D. Martin, Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why), 13 U. Pa. J. Const. L. 263, 281 (2010).

 [137]. Although perhaps, myriad amici briefs flooding the Court in support of granting a Petition for Writ of Certiorari and again in the Court’s decision would indicate a number of stakeholders in the pending decision, and thus illustrate the importance of the issue, as mentioned throughout this Section, that flood poses problems when an imbalance exists between those filing for the petitioner and the respondent. See Jaffee v. Redmond, 518 U.S. 1, 35–36 (1996) (Scalia, J., dissenting) for a discussion on the possible effects that imbalances in amicus briefs may have on Supreme Court jurisprudence and why such imbalances ultimately pose significant problems for strong adversarial litigation. Another issue of note, but one not explored here, is the effect of amicus briefs in Supreme Court jurisprudence when one party is the United States.

 [138]. See supra note 51 (listing groups filing amicus briefs on behalf of petitioner).

 [139]. See supra note 53 (listing groups filing amicus briefs on behalf of respondent).

 [140]. Kearney & Merrill, supra note 126, at 785.

 [141]. Id.

 [142]. Id.

 [143]. Jaffee v. Redmond, 518 U.S. 1, 36 (1996) (Scalia, J., dissenting).

 [144]. Garcia, supra note 129, at 320.

 [145]. See supra note 117 (listing all amicus briefs on behalf of petitioner).

 [146]. Kearney & Merrill, supra note 126, at 786.

 [147]. See generally John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) (arguing for the Supreme Court’s role as reinforcer of democracy).

 [148]. Id. at 58.

 [149]. See id. at 12.

 [150]. Richard W. Burgh, John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, Cambridge: Harvard University Press, 1980, Book Review 1 L. & Phil. 481, 482 (1982).

 [151]. Ely, supra note 147, at 12.

 [152]. John Hart Ely, Toward a Representation-Reinforcing Mode of Judicial Review, 37 Md. L. Rev. 451, 466 (1978).

 [153]. Id. at 486 (“A referee analogy is also not far off: the referee is to intervene only when one team is gaining unfair advantage, not because the ‘wrong’ team has scored.”) (describing another possible analogy to the political market theory, in which the Court must insert itself and rectify market inequalities or asymmetries in power to yield more beneficial outcomes, but can insert itself only when such inequalities exist).

 [154]. Id.

 [155]. Erwin Chemerinsky, The Supreme Court, Public Opinion, and the Role of the Academic Commentator, 40 S. Tx. L. Rev. 943, 955 (1999).

 [156]. Augusto Lopez-Carlos, Nine Reasons Why Corruption Is a Destroyer of Human Prosperity, World Bank (Mar. 31, 2014), http://blogs.worldbank.org/futuredevelopment/nine-reasons-why-corruption-destroyer-human-prosperity; see also Susan Rose-Ackerman, Corruption: Greed, Culture, and the State, 120 Yale L.J. Forum (2010), https://www.yalelawjournal.org/forum/corruption-greed-culture-and-the-state.

 [157]. What We Investigate: Public Corruption, Fed. Bureau of Investigation, https://www.fbi.gov/investigate/public-corruption (last visited Nov. 30, 2018).

Public corruption . . . poses a fundamental threat to our national security and way of life. It can affect everything from how well our borders are secured and our neighborhoods protected to how verdicts are handed down in courts to how public infrastructure such as roads and schools are built. It also takes a significant toll on the public’s pocketbooks by siphoning off tax dollars—it is estimated that public corruption costs the U.S. government and the public billions of dollars each year.


 [158]. Erwin Chemerinsky, The Case Against The Supreme Court 10 (2014).

 [159]. Jimmy Vielkind & Laura Nahmias, Cuomo’s Ambitions at Risk as Former Aide Goes to Trial, Politico (Jan. 22, 2018, 5:04 AM), https://www.politico.com/states/new-york/albany/story/2018/01/19

 [160]. See infra notes 21314.

 [161]. Corasaniti & Schweber, supra note 10.

 [162]. E.g., Press Release, U.S. Att’y’s Office S.D. Tex., Former Webb County Commissioner Convicted (Oct. 18, 2018), https://www.justice.gov/usao-sdtx/pr/former-webb-county-commissioner-convicted; Michael R. Blood & Julie Watson, US Rep Duncan Hunter, Wife Indicted on Corruption Charges, Associated Press (Aug. 21, 2018), https://www.apnews.com

 [163]. Marbury v. Madison, 5 U.S. 137, 178 (1803).

 [164]. See Robert J. Harris, Book Review, Robert McClosky. The American Supreme Court, 336 Annals Am. Acad. Pol. & Soc. Sci. 179, 179 (1961) (“In the first, from 1789 to 1860, the Court under the shrewd guidance of John Marshall, was primarily interested in devising a system of constitutional law which would establish judicial power . . . .”).

 [165]. See Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 367–85 (2009).

 [166]. Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 19, 23 (2002) (“The meaning of the law before and after a judicial decision is not the same. Before the ruling, there were, in the hard cases, several possible solutions. After the ruling, the law is what the ruling says it is. The meaning of the law has changed. New law has been created.”).

 [167]. Lon L. Fuller, Anatomy of the Law 94 (Greenwood Press, Inc. 1976) (1968).

 [168]. Justice William O. Douglas, 8th Annual Benjamin N. Cardozo Lecture Delivered Before the Association of the City of New York: Stare Decisis (Apr. 12, 1949), in 4 Rec. Ass’n B. City N.Y. 152, 175–76 (1949), reprinted in 49 Colum. L. Rev. 735, 754 (1949).

 [169]. See id. at 172–76, reprinted in 49 Colum. L. Rev. at 752–55.

 [170]. Barak, supra note 166, at 33.

 [171]. James G. Wilson, The Role of Public Opinion in Constitutional Interpretation, 1993 BYU L. Rev. 1037, 1083.

 [172]. Id. at 1134.

 [173]. David Cole, Engines of Liberty 223–24 (2016).

 [174]. Id. (“The advocates featured here pursued their claims wherever they found a promising forum.”).

 [175]. See Wilson, supra note 171, at 1127–28.

 [176].               Cole, supra note 173, at 225.

 [177]. Id.

 [178]. Order Adopting Revised Rules of the Supreme Court of the United States, 346 U.S. 945, 947 (1954) (statement of Black, J.).

 [179]. Anthony J. Franze & R. Reeves Anderson, In Unusual Term, Big Year for Amicus Curiae at the Supreme Court, Law.com: Supreme Court Brief (Sept. 21, 2016), https://www.law.com

 [180]. Richard J. Lazarus, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar, 96 Geo. L.J. 1487, 1487–88 (2015) (“During the past two decades, the Supreme Court has witnessed the emergence of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century.”).

 [181]. Allison Orr Larsen & Neal Devins, The Amicus Machine, 102 Va. L. Rev. 1901, 1906 (2016).

 [182]. Id. at 1904–06.

 [183]. Id. at 1903–04.

 [184]. Id. at 1904.

 [185]. Eugene Volokh, Judicial Attitudes Towards Amicus Briefs, Volokh Conspiracy (July 23, 2009, 1:51 PM), http://volokh.com/2009/07/23/judicial-attitudes-towards-amicus-briefs.

 [186]. Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003).

[J]udges have heavy caseloads and therefore need to minimize extraneous reading; amicus briefs, often solicited by parties, may be used to make an end run around court-imposed limitations on the length of parties’ briefs; the time and other resources required for the preparation and study of, and response to, amicus briefs drive up the cost of litigation; and the filing of an amicus brief is often an attempt to inject interest group politics into the federal appeals process.

Id. (emphasis added) (citing Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 616–17 (7th Cir. 2000)).

 [187]. See 18 U.S.C. § 201(a)(3) (2018) (defining “official act”).

 [188]. U.S. Dep’t of Justice, Justice Manual, Crim. Resource Manual § 2404 (2018), https://www.justice.gov/usam/criminal-resource-manual-2402-hobbs-act-generally (“[T]he Hobbs Act was enacted in 1946 to combat racketeering in labor-management disputes . . . .”).

 [189]. Id.

 [190]. 18 U.S.C. § 1346 (2018); U.S. Dep’t of Justice, Justice Manual § 9-43.100 (2018), https://www.justice.gov/usam/usam-9-43000-mail-fraud-and-wire-fraud.

 [191]. 18 U.S.C. § 1952 (2018).

 [192]. U.S. Dep’t of Justice, U.S. Dep’t of Justice, Justice Manual § 9-110.100 (2018), https://www.justice.gov/usam/usam-9-85000-protection-government-integrity.

 [193]. 18 U.S.C. § 1962(c) (2018); see also Ctr. for the Advancement of Pub. Integrity, Columbia Law Sch., A Guide to Commonly Used Federal Statutes in Public Corruption Cases: A Practitioner Toolkit 12–13 (2017) [hereinafter Commonly Used Federal Statutes in Public Corruption Cases], https://www.law.columbia.edu/sites/default/files/microsites/public-integrity/a_guide_to_commonly_used_federal_statutes_in_public_corruption_cases.pdf.

 [194]. U.S. Dep’t of Justice, Justice Manual § 9-85.000 (2018), https://www.justice.gov/usam
/usam-9-85000-protection-government-integrity. Although statutes exist that cover bribery of federal officials and interfering with the integrity of elections, few statutes have the explicit purpose of criminalizing quid pro quo activities, and most of this law has been clarified by case law. Commonly Used Federal Statutes in Public Corruption Cases, supra note 193.

 [195]. Press Release, Office of the Governor of N.Y., Governor Cuomo Proposes New Class of Public Corruption Crimes (Apr. 9, 2013), https://www.governor.ny.gov/news/governor-cuomo-proposes-new-class-public-corruption-crimes (“Under the new Public Servant Bribery provision, a prosecutor would only have to prove that the person paying the bribe intended to influence the public official or that the person receiving it intended to be so influenced . . . .”).

 [196]. Id. (“The proposed legislation would hold accountable anyone whether or not they are a public official who is found to have engaged in defrauding the government. . . . Under the new law, anybody, whether acting in concert with a public servant or not, who engages in a course of conduct to defraud a state or local government would be guilty of a crime . . . .”).

 [197]. Id. (“The proposed legislation would for the first time make it a misdemeanor for any public official or employee to fail to report bribery.”).

 [198]. Press Release, Office of the Governor of N.Y., Governor Cuomo and Legislative Leaders Announce Passage of 2014–15 Budget (Mar. 31, 2014), https://www.governor.ny.gov/news/governor-cuomo-and-legislative-leaders-announce-passage-2014-15-budget [hereinafter Press Release, 2014–2015 Budget] (“The Budget includes further reforms to ensure New Yorkers have confidence that their elected officials are serving them honestly and with transparency.”).

 [199]. N.Y. Crim. Proc. Law § 30.10 (McKinney 2016) (Statute of Limitations); N.Y. Penal Law § 200.00–.56 (McKinney 2016) (Bribery); id. §§ 496.01–07 (Corrupting the Government); see also Press Release, 2014–2015 Budget, supra note 198 (summarizing the enacted Public Trust Act provisions).

 [200]. Alan Greenblatt, Congratulations, New York, You’re #1 in Corruption, Politico (May 5, 2015), https://www.politico.com/magazine/story/2015/05/how-new-york-became-most-corrupt-state-in-america-117652 (“Other states have plenty of corruption, but it’s hard to beat New York when it comes to sheer volume . . . . New York doesn’t so much have a culture of corruption as an entire festival.”).

 [201]. N.Y. Penal Law § 496.01–.07 (McKinney 2016).

 [202]. Id. § 200.10–.12.

 [203]. Id.

 [204]. Adriana S. Cordis & Jeffrey Milyo, Measuring Public Corruption in the United States: Evidence from Administrative Records of Federal Prosecutions, 18 Pub. Integrity 127, 137 (2016).

 [205]. Id.

 [206]. See id. at 138 (including in Title 18: § 201 Bribery of Public Officials and Witnesses, § 371 Conspiracy to Commit Offense or Defraud the United States, § 641 Public Money, Property or Records, § 666 Theft or Bribery in Programs Receiving Federal Funds, § 1001 Fraud and False Statements or Entries Generally, § 1028 Fraud and Related, ID Documents, § 1341 Mail Fraud, Frauds and Swindles, § 1709 Theft or Destruction of Mail by Officers or Employees, § 1951 Hobbs Act, and § 1962 RICO Prohibited Activities; in Title 21: § 841 & § 843 Manufacture and Distribution of Drugs, § 844 Simple Possession of Drugs, and § 846 Attempt and Conspiracy; in Title 26: § 7201 Tax Evasion and § 7206 Fraud and False Statements; and in Title 42: § 408 SSDI Penalties and § 1973 Denial or Abridgement of Right to Vote).

 [207]. Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 374 (2009).

 [208]. Kenneth Lovett, L.I. Congressman Seeks to Close Corruption Loophole with New Bill After Dean Skelos Conviction Tossed, N.Y. Daily News (Sept. 27, 2017, 11:27 PM), http://www.nydailynews.com/news/politics/congressman-unveils-bill-prosecuting-corrupt-pols-easier-article-1.3525148.

 [209]. Press Release, Office of Congressman Thomas Suozzi, Suozzi Proposes Legislation to Close “Official Acts” Loophole that Resulted in Overturned Political Corruption Convictions (Sept. 27, 2017), https://suozzi.house.gov/media/press-releases/suozzi-proposes-legislation-close-official-acts-loophole-resulted-overturned.

 [210]. Close Official Acts Loophole Act of 2017, H.R. 3843, 115th Cong. (as introduced by H. Reps. Brian K. Fitzpatrick and Thomas R. Suozzi, Sept. 26, 2017).

 [211]. Id.

 [212]. Brief of Petitioner at 13–14, 35–36, McDonnell v. United States, 136 S. Ct. 2355 (2016) (No. 15-474). Notice that the petitioner accused respondents of importing a definition from another statute, but reserved judgment as to the “better” definition. See id. at 49–55.

 [213]. See Press Release, U.S. Att’y’s Office for the S.D.N.Y., Statement on Second Circuit Decision, United States v. Sheldon Silver (July 13, 2017), https://www.justice.gov/usao-sdny/pr/statement-acting-us-attorney-joon-h-kim-second-circuit-decision-united-states-v-sheldon (“While we are disappointed by the Second Circuit’s decision, we respect it, and look forward to retrying the case. . . . Although it will be delayed, we do not expect justice to be denied.”) (statement of Acting U.S. Attorney for the Southern District of New York, Joon H. Kim, in response to the Second Circuit’s decision to overturn the conviction); see also Wang, supra note 8 (Skelos convicted); Weiser, supra note 8 (Silver convicted).

 [214]. See United States v. Skelos, 707 F. App’x 733, 739 (2d Cir. 2017); U.S. v. Silver, 864 F.3d 102, 124 (2d Cir. 2017).

[T]he evidence presented by the Government was sufficient to prove the Hobbs Act extortion and honest services fraud counts of conviction against Silver[,] . . . [and] the evidence presented by the Government was sufficient to prove the money laundering count of conviction against Silver because the Government was not required to trace criminal funds that were commingled with legitimate funds under 18 U.S.C. § 1957.

Silver, 864 F.3d at 124.

 [215]. See, e.g., Marshall Cohen et al., Tracking the Russia Investigations, CNN, https://www.cnn.com/interactive/2017/politics/russia-investigations (last visited Nov. 30, 2018); Scott Shane & Mark Mazzetti, The Plot to Subvert an Election, N.Y. Times (Sept. 20, 2018), https://nyti.ms/2NmUclP.

 [216]. See Shane & Mazzeti, supra note 215.

 [217]. See Sarah Chayes, It Was a Corruption Election. It’s Time We Realized It, Foreign Pol’y (Dec. 6, 2016, 1:02 PM), http://foreignpolicy.com/2016/12/06/it-was-a-corruption-election-its-time-we-realized-it-trump-united-states.

 [218]. Leon Trotsky, Their Morals and Ours, New Int’l, June 1938, at 163, 172.

 [219]. See Michael Klarman, Opinion, The Supreme Court Is Most Powerful When It Follows Public Opinion, N.Y. Times (July 6, 2015), https://nyti.ms/2CQ3AYL (“Rulings such as Brown v. Board of Education and Obergefell were inconceivable until enormous changes in the surrounding social and political context had first occurred.”).

 [220]. Id.

Fool Me Once: Regulating “Fake News” and Other Online Advertising – Article by Abby K. Wood & Ann M. Ravel

From Volume 91, Number 6 (September 2018)

Fool Me Once: Regulating “Fake News” and other Online Advertising

Abby K. Wood[*] and Ann M. Ravel[†]

A lack of transparency for online political advertising has long been a problem in American political campaigns. Disinformation attacks that American voters have experienced since the 2016 campaign have made the need for regulatory action more pressing.

Internet platforms prefer self-regulation and have only recently come around to supporting proposed transparency legislation. While government must not regulate the content of political speech, it can, and should, force transparency into the process. We propose several interventions aimed at transparency. First, and most importantly, campaign finance regulators should require platforms to store and make available (1) ads run on their platforms, and (2) the audience at whom the ad was targeted. Audience availability can be structured to avoid privacy concerns, and it meets an important speech value in the “marketplace of ideas” theory of the First Amendment—that of enabling counter speech. Our proposed regulations would capture any political advertising, including disinformation, that is promoted via paid distribution on social media, as well as all other online political advertising. Second, existing loopholes in transparency regulations related to online advertising should be closed. Congress has a role here as it has prevented regulatory agencies from acting to require disclosure from so-called dark money groups. Finally, government should require that platforms offer an opt-in system for social media users to view narrowly-targeted ads or disputed content.



I. Documenting and Framing the Problem

A. Fake News is Political Advertising

B. How Disinformation Can Weaken Democracy

II. First Amendment, Political Speech, and
Choice of Regulator

A. Constitutional Framework for Campaign Advertising Regulation

B. Choice of Regulator

1. Industry Self-Regulation and Co-Regulation

2. Government Regulation

III. Our Current, Insufficient, Regulatory
Framework for Online Political Advertising

IV. Constitutionally-Permissible Regulations
to Address Disinformation Advertising

A. Improve Transparency

1. Require Platforms to Keep and Disclose all Political Communications and Audiences

2. Close the Loophole for Disclaimers in Online Ads

3. Eliminate Donor Anonymity for LLCs and
501(c) Organizations

B. “Nudge” and Educate Sharers and Viewers

C. Considerations for Platform Efforts to Reduce Disinformation

V. Task Assignment and Action Across Multiple Jurisdictions

A. Federal Agency Competencies and Task Assignment

B. The Role of State and Local Government






During the 2016 Presidential campaign, the average adult saw at least one “fake news” item on social media.[1] 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.[2] 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.[3] The attacks are ongoing.[4]

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.[5] 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.

Untraceable online political advertising undermines key democratic values, and the problem is exacerbated by disinformation. Scholars and analysts are writing about fake news and the failures of platforms to contain it. Some have focused on evaluating the impact of fake news on voter behavior and beliefs[6] or on political agenda setting.[7] Others focus on legal fixes, such as direct platform regulation by restoring (or modifying) a statute that exempts platforms from liability arising from others’ speech on their platforms.[8] Still others offer media-based solutions[9] or emphasize that platforms are the only entities who can, or should, correct the problem while staying within the existing First Amendment framework.[10] A few are ready to re-interpret the First Amendment in light of the new imbalance between speakers and listeners.[11] Yet other scholars have suggested that platforms should be regulated in a way that fits a pre-existing regulatory framework, such as the way we regulate media organizations[12] or public utilities.[13]

We add to this conversation that fake news and other online political advertising should be addressed with existing regulatory tools developed for older kinds of political advertising. Our argument begins with the simple observation that fake news is not “news.” It is political advertising. Like other kinds of political advertising, fake news seeks to persuade, mobilize, or suppress voters and votes. And like other kinds of political advertising, it involves costs for production and distribution. Fake news is an especially confusing type of political advertising for two reasons. It is native, meaning that it poses as editorial or reporting content, and it is disinformative. Fake news is not the only format in which disinformation advertising occurs. Disinformation advertising is also distributed in the form of memes, videos, and images. The common themes among disinformation advertising are that it is false, it aims to affect people’s political opinions and the probability that they will turn out to vote, and the advertiser pays to produce or distribute it.

The First Amendment provides clear limits on the government’s ability to regulate politically-related messaging. However, the Constitution allows for more regulation than currently exists for political speech on social media. Courts have repeatedly upheld campaign finance disclaimers and disclosure of the funding behind political spending. At a minimum, the sources of disinformation advertising should be transparent.

Our campaign finance laws are riddled with gaps and loopholes, which exclude a large portion of online advertising from disclosure and disclaimer requirements. The lack of transparency for online ads facilitates violations of the ban on foreign spending in U.S. elections,[14] and even where the source of the political communication is domestic, the public’s inability to “follow the money” may impact voters’ ability to make the right choice for them.[15] Adding disinformation to the mix further damages voters’ ability to make the choice that best aligns with their preferences. While regulations responding to this problem have been proposed, the agency tasked with regulating is unlikely to enact anything in the near term.

The government should not rely upon the platforms to regulate themselves. While each platform is making proposals to increase transparency for online political advertising, the lack of transparency originated with the platforms, and for at least a decade, it appeared to serve their profit interests. Nevertheless, constitutional limits mean that only the platforms are able to implement some potential fixes. If platforms are unable or unwilling to act in those areas, government cannot step in.

In this Article, we propose three regulations to increase transparency of political advertising and begin to address the problem of disinformation advertising. Our proposed regulations are all modest extensions of the way the federal government already regulates political advertising, and they will help make visible the sources of political messaging online. Part I of this Article explains disinformation advertising as it existed in 2016—unregulated, from unknown sources, and aimed to fragment our politics—and how it creates a problem for our democracy. In Part II, we explain the constitutional framework in which additional regulation would occur. We also explain the tradeoffs between regulation by government and regulation by platforms. In Part III, we discuss the loopholes in our existing regulatory system for online political advertising. The loopholes have enabled disinformation advertising to be distributed without regulation even when paid for by a foreign government. Part IV proposes several regulatory solutions that could reduce disinformation advertising and, short of reducing it, would make enforcement and following the money much easier. We also suggest guidelines for platform self-regulation to attack the problem. A brief review of regulations in several foreign jurisdictions, which concludes Part IV, demonstrates that social media platforms are already willing and able to comply with stricter regulations in other countries. Finally, in Part V, we consider task assignment within the federal bureaucracy, as well as actions taken at other levels of government. Federal inaction on the threat posed by Russian disinformation is not the whole story; rather, disinformation campaigns have the potential to impact city and state elections too, causing local government to begin regulating platforms for their own elections.

I.  Documenting and Framing the Problem

“Fake news,” or fabricated news articles or blog posts that are intentionally false or misleading, have received a lot of attention since the 2016 U.S. presidential election. Fake news articles are distributed via social media to drive web traffic to websites.[16]

We argue that the problem of “fake news” is better framed as a problem of native political advertising and that the phenomenon benefits from lack of campaign finance transparency online. In this Section, we describe the fake news phenomenon, tie fake news to campaign advertising in ways that allow for regulatory traction, and explain how disinformation presents challenges to democracy.

A.  Fake News is Political Advertising

Fake news stories inundated social media networks during the 2016 election, sometimes generating millions of comments and reactions from users.[17] Sophisticated disinformation is persuasive because it looks like credible journalism.[18] But fake news is not “news.” It is native advertising and should be regulated as such.[19] In the same way that commercial advertisers seek to persuade by projecting a particular image of a product, purveyors of political disinformation ads use fabricated information to persuade voters that a candidate is untrustworthy or unfit for office,[20] or to sow division among Americans.[21] During the 2016 presidential election, many disinformation ads were strategically targeted at select groups to either encourage or suppress votes.[22] Persuasion and targeting are the cornerstones of advertising. We therefore reject the label “fake news” and adopt “disinformation advertising.”

Plenty of disinformation advertising was produced in the United States. Indeed, a company called “DisInfoMedia,” which was the source of several fake news articles during the election, lists its address in suburban Los Angeles.[23] But the public’s attention has been captured by fake news placed by foreign actors, especially Russians aiming to intervene in U.S. elections. Russia’s attack occurred (and continues) on social media platforms.[24] Expert estimates of the number of shares of Russian-sourced “fake news” on Facebook vary widely, from over 100 million to “into the billions.”[25] These estimates include content ranging from fake news articles to generic ideological statements from foreign sources with no disinformative content. The fact is, lack of disclosure of online political spending means that no one captured the entire universe of political ads. The best evidence we have so far, from a user-generated ad collection of 5 million ads by 10,000 Facebook users,[26] suggests that 86% of the groups running paid ads on Facebook in the last six weeks before the election were suspicious groups (53%),[27] astroturf movement groups (17.1%),[28] and questionable news outlets (15.8%).[29]

For a small fee, anyone can distribute content and generate impressions on social media.[30] Using Facebook as an example, political ads, including disinformation ads, could be promoted, or boosted, for a fee, just like any other ad.[31] Boosted ads appear higher on users’ newsfeeds. When boosting an ad, the creator selects which audience to target using filters like location, age, gender, or even interest. Some disinformation advertisers used Facebook’s “Custom Audiences” feature, which allows for much more sophisticated targeting than other methods, because it allows advertisers to place cookies on the browsers of those who click on their ads and then re-target people who clicked through.[32] Russian meddlers used Custom Audiences to create websites and Facebook Pages with political sounding names that focused on socially divisive issues such as undocumented immigrants or African-American activism. The operatives later re-targeted people who had visited their sites with further political messaging.[33] The Trump campaign, itself, also used Custom Audience’s “diabolical little brother,” Lookalike Audiences, to target people that “look like” their custom audiences, based on their online habits.[34] If these tools remain available to advertisers in future elections, it is likely that disinformation advertisers will use them in the future as well.

Russia also deploys tens of thousands of “sock puppets,” trolls, cyborgs, and bots to amplify and distribute their messages. Mass posting causes hashtags to trend, amplifying the bots’ messages.[35] Social media users can easily build a large social media following using cheap third-party services to promote their Twitter or Facebook accounts.[36] Helping distribute the propaganda are so-called “useful idiots,” American social media users who unwittingly support the Russian disinformation campaign by reacting to, commenting on, and sharing the sensational stories with their social media networks.[37]

There is spending at many steps of this process, including in salaries and production costs to make the content in the first place.[38] Some of this spending triggers the existing rules. Once aggregate expenditures reach the threshold to trigger registration, the advertiser is subject to regulations like any other group regulated by the Federal Election Commission (“FEC”). While communications distributed on the Internet for free are generally exempt from FEC regulations, many political ads—including many disinformation ads—are placed into our newsfeeds for a fee and, therefore, are subject to regulation under existing rules.[39] We also know that some of the advertisers violated the ban on foreign expenditures in connection with a U.S. election because they were paid for by foreign sources, providing another example of existing rules applying to disinformation ads.[40] Disaggregated ads and audiences, disappearing ads, and other difficulties would complicate enforcement efforts, even for a motivated agency. The problem is data availability to establish the fact of the violation and facilitate enforcement. Therefore, at a minimum, effective enforcement of existing rules requires retaining data and advertising content. And in order to allow groups to counter disinformation against them or their preferred candidates, we must also retain the audience targeting information, which we discuss in Part IV.

* * *

Media organizations are exempt from campaign finance regulations. Even if we are correct that “fake news” is better thought of as advertising, is it also “news” that should be exempted from the rules? The FEC lacks a coherent regulatory approach to implementing the Federal Election Campaign Act’s press (or “media”) exemption from campaign finance regulation.[41] The exemption allows legitimate media sources to avoid registration with the FEC and compliance with campaign finance regulations. The Commission walks a tightrope in interpreting the exemption. If it defines “press” too broadly, the exemption will swallow the statute and allow all advertisers to claim exemptions as “press entities.” With an overly narrow definition, however, the FEC would run afoul of the First Amendment by burdening the speech of legitimate news media.[42]

In determining whether an item should be subject to the press exemption, the FEC asks whether the entity is “a press entity,” and “whether [it] is acting in its ‘legitimate press function.’”[43] To determine whether a publication or organization is a press entity, the FEC asks “whether the entity in question produces on a regular basis a program that disseminates news stories, commentary, and/or editorials.”[44] When analyzing whether a press entity is acting “in its legitimate press function,” the FEC looks at “(1) whether the press entity’s materials are available to the general public, and (2) whether the materials are comparable in form to those ordinarily issued by the press entity.”[45] The Commission does not analyze whether the materials are produced by trained journalists, whether the organization employs a fact checker or conducts fact checking functions, or any other typical indicia of a legitimate media organization. As such, the test may be too lax: because it does not consider indicia of traditional journalism when granting the exemption, the Russian government propaganda outlet, Russia Today, was deemed a “legitimate press entity” by the FEC.[46]

Even under this minimalist test, the FEC would not consider much of the disinformation on social media to be the product of a “press entity.”[47] Take the Denver Guardian as an example. It existed only briefly before running a story about a murder-suicide committed by “an FBI agent believed to be responsible for the latest [DNC] email leaks.”[48] Its registered address is actually a parking lot.[49] The site had ads, Denver’s weather, and no more than two news stories during its entire existence.[50] Similarly, Facebook Pages that disseminated content and memes, like the “Blacktivist” page, would not be considered press entities. They were created in the months before the election and claimed to be activists, not journalists.[51]

B.  How Disinformation Can Weaken Democracy

Lack of transparency for online political advertising pre-dates the 2016 election, but the disinformation attacks have given the problem new urgency. Disinformation attacks threaten democracy, because:

[F]actual knowledge about politics is a critical component of citizenship, one that is essential if citizens are to discern their real interests and take effective advantage of the civic opportunities afforded them. . . . [K]nowledge is a keystone to other civic requisites. In the absence of adequate information neither passion nor reason is likely to lead to decisions that reflect the real interests of the public.[52]

Disinformation advertising works like other kinds of propaganda, by sowing doubt about institutions.[53] Here, the propaganda uses a fake media source to undermine trust in the media. The flood of false, hyperbolic, repetitive, and divisive information is difficult for its viewers to resist over time and can distort the information environment.[54] Voters are left trying to select the candidate that is right for them, or to form opinions about policy, in the face of a “media fire hose which has diluted trusted sources of information . . . .”[55] As Tim Wu explains, “[w]hen listeners have highly limited bandwidth to devote to any given issue, they will rarely dig deeply, and they are less likely to hear dissenting opinions. In such an environment, [information] flooding can be just as effective as more traditional forms of censorship.”[56]

Scholars have argued that an informed electorate is a constitutional value and that we should recognize a canon of “effective accountability” which relies upon an informed electorate.[57] Many voters are poorly informed about the candidates and issues on the ballot. Most also lack a basic understandings of government structure and policies.[58] Indeed, the “limited effects” found by Alcott and Gentzkow of disinformation in the 2016 election may be floor effects that result from the already low level of information among the electorate.[59] Of course, uninformed voters are not unteachable: some studies show that providing voters with information increases voter competence, or their ability to vote in line with their preferences.[60] More generally, voters have informational workarounds. They use heuristics, or informational shortcuts, to help them reach a decision.[61] Uninformed voters can also take cues from elites they trust. If the cues from elites, or the information they provide, are disinformative, voters are left worse off than if they had not paid attention in the first place. Corrections to disinformation do not help much, either. It is hard to “un-ring the bell” of misinformation—the effects of misinformation remain even after corrections are issued and even when they are issued right away.[62] Moreover, corrections can be misremembered and serve to further entrench the faulty information.[63]

Disinformation campaigns share a targeting strategy with more run-of-the-mill political advertising on social media: microtargeting. Microtargeting small groups of voters with content that appeals to their pre-existing biases can deepen the democratic problem by subdividing the electorate, creating an endless number of potential cleavages among voters. As Elmendorf and Wood warn:

[I]t seems reasonable to fear that as broad, public appeals to the common good and national identity are supplanted by microtargeted appeals to the idiosyncratic beliefs, preferences, and prejudices of individual voters, voters will come to think of politics as less a common project than an occasion for expressing and affirming their narrow identities and interests. . . . Voters with out-of-the-mainstream and even abhorrent beliefs (such as overt racism) may find their beliefs legitimated and reinforced by micro-targeted messaging.[64]

Microtargeting stands to fragment the electorate into countless groups. When disinformation is microtargeted, each group has its own set of unreliable “facts” about our civic life. Moreover, because more extreme voters are more easily targeted for turnout or suppression, a vast, moderate center is left out of the discussion of issues surrounding the election, undermining a key First Amendment value that campaigning enhances the “marketplace of ideas.”

Online “echo chambers” are asymmetric and more common among conservatives than liberals.[65] Cass Sunstein proposes that a diversity of information and views are necessary to fix the problem of group polarization.[66] But diversifying one’s information is harder than it seems, even if voters want to do so. Platform algorithms are designed to give users more of what they have liked in the past, creating so-called “filter bubbles.”[67] The more frequently a social media user clicks on disinformation advertising or visits a hyperpartisan website, the more frequently similar content will be promoted on their Facebook newsfeeds or Internet search auto completions.[68]

In sum, disinformation hurts our democracy by undermining our faith in our institutions, weakening voter competence, and splintering the electorate. The nature of social media, with its affinity groups and algorithms, makes it likely that disinformation will echo among one’s social media networks and that countervailing information will not reach the user. The lack of transparency in online political advertising has long been a problem, and the recent disinformation attacks have made shedding light on online political advertising more urgent.

II.  First Amendment, Political Speech, and Choice of Regulator

Political opinions and information posted online are indisputably political speech and thus protected by the First Amendment. Activities that are less obviously “speech” have also been constitutionalized by courts deregulating in the name of the First Amendment. This includes political expenditures. The “constitutionalization” of campaign finance has implications for regulation of online political advertising, including disinformation advertising. Government regulation of online political advertising, including disinformation advertising, is on firmest constitutional ground when it requires disclosure of who is speaking to whom, when, and about what. A lot of the remaining responsibility for reducing disinformation on social media falls to social media platforms. This is because doing so involves banning or restricting speakers or their speech—actions that would be unconstitutional for the government to require. Yet here’s the rub: however much the platforms claim they want to self-regulate, their short-term profit motives suggest platforms will be, at best, unreliable and inconsistent self-regulators.

Here, we explain the current state of play in First Amendment jurisprudence and discuss the merits of platform self-regulation and government regulation.

A.  Constitutional Framework for Campaign Advertising Regulation

First Amendment protections for political speech are strong in the United States, enhanced by conservative-libertarian rhetoric among First Amendment scholars.[69] Campaign finance cases analyze regulations differently depending on whether they ban speech or merely burden it in some way. Courts apply strict scrutiny to content regulation of political speech.[70] Several legislative attempts to regulate the content, amount, or source of political speech have met their demise under this standard.[71] In order to survive strict scrutiny, the government must show that a regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.

The Court has granted “compelling interest” status to a limited set of campaign and election-related interests that governments try to protect via regulation. Preserving fair and honest elections and preventing foreign influence in our elections are compelling government interests.[72] Courts have acknowledged that the government “indisputably” has a compelling interest[73] in protecting election integrity and have upheld narrowly-tailored government regulations of some kinds of speech around elections. For example, the Court has upheld restrictions on our right to political speech in physical proximity to an election place such as requiring a physical setback for political activities near polling places, and banning campaign signs and clothing that advocates for a candidate or initiative near people who are voting.[74] And in Bluman v. FEC, the Supreme Court voiced strong views that the government has a compelling interest in limiting direct campaign contributions by foreign nationals, though the language is somewhat uncertain about other involvement of foreign nationals.[75]

When it comes to the government’s interest in preventing fraud on the electorate, the Court has stopped short of calling the interest “compelling,” saying that it “carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large.”[76] Nevertheless, given the existing case law permitting restrictions in space, if not yet time (campaign season), the possibility remains open (though admittedly quite distant) that a narrowly-tailored prohibition on fraudulent online political speech could survive constitutional scrutiny where prior prohibitions on fraudulent speech have failed.[77] In the meantime, the Court has said that the answer to false speech is not a blanket rule either allowing or prohibiting censorship. Rather, the answer to false speech is counter-speech.[78]

Where government regulation of political speech falls short of a ban or a limit, as is the case with campaign finance disclosure and disclaimer regulations, it is subject to exacting scrutiny. To survive exacting scrutiny, the government must identify an overriding[79] or sufficiently important[80] government interest, which is substantially related,[81] or even narrowly tailored,[82] to meet it.[83] The primary government interest supported by the disclosure regulations the Court upheld in Citizens United, McConnell, and Buckley, is the “informational benefit,” which is about improving voter competence by “[e]nabling the electorate to make informed decisions and give proper weight to different speakers and messages.”[84]

The Buckley Court fleshed out the assumption, saying, “[d]isclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office.”[85] It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate’s financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.[86]

Social science findings support the Buckley court’s hypothesis that disclosure informs voters. In a series of experiments, Dowling and Wichowsky have shown that campaign finance transparency affects voter opinion.[87] Adam Bonica has shown, using campaign finance data from decades of elections and legislator voting records at the state and federal level, that campaign finance contributions are as strong a predictor of legislative behavior—as informative, in other words—as incumbent legislators’ prior votes.[88] We also have evidence that voters demand disclosure and learn from a group or candidate’s decision to not disclose.[89]

While there is little judicial guidance on the constitutionality of government actions we propose in Part IV, the courts should uphold government efforts to educate voters and social media users about disinformation and fact-checking. Similarly, the courts would likely uphold a regulation requiring platforms to provide an opt-in or opt-out system allowing social media users to control whether they view content previously flagged as false.[90]

* * *

Under the existing jurisprudential framework, government’s main involvement to combat disinformation advertising will be related to transparency. But it may be time to re-visit the foundations of our First Amendment jurisprudence. The cases fleshing out First Amendment protection of political speech are a relatively late addition to our constitutional jurisprudence, and like all law, they were created in a specific historical context.[91] The jurisprudence developed at a time when listeners were plentiful and speech less so. Recent Supreme Court majorities have interpreted the First Amendment to protect speakers, not listeners. Our transparency proposals fit this existing framework comfortably. But should government be able to do more to protect listeners from the “flood” of disinformation advertising before elections?

The Internet platforms themselves lack a coherent theory of the First Amendment.[92] Platforms are not merely a venue for debates in the “marketplace of ideas,” in which truth can eventually win out. The truth stood little chance against the volume of disinformation advertising and other false political messaging that flooded the “marketplace” in the weeks leading up to the 2016 election.[93] Nor are the platforms exclusively supportive of speakers’ personal autonomy to say whatever they want—another theory of the First Amendment. Terms of service for even the most libertarian platforms forbid behavior that is offensive, despite not being illegal. Platform users are speakers and listeners; and platforms should want to balance their interests. Unfortunately, only speakers pay platforms for their services, leading platforms to cater their terms of service to speakers rather than listeners. The platforms also have not taken a collectivist, or deliberation-enhancing approach to speech on their platforms, under a theory that the First Amendment should promote political engagement and public discourse.[94] At best, they have adopted an inconsistent amalgam of these ideas.[95]

As Volokh explains, with the advent of “cheap speech” online, intermediaries are weakened.[96] Speakers, freed from editorial gatekeeping, have become less trustworthy. Listeners are better able to select speakers that affirm, rather than challenge, their ideologies; and political advertisers are better able to target them “to make arguments to small groups that they would rather not make to the public at large.”[97] Tim Wu argues that First Amendment jurisprudence should adapt to our current conditions, in which speakers are plentiful and listeners receive so much messaging that it is harder for speakers to “break through” than ever.[98] In the age of cheap speech, the flood of disinformation advertising distributed by bots works to dilute human political speech, biasing the playing field in favor of machine-generated echoes of highly amplified, reckless, or even malevolent, speakers. Policing non-human speakers would help to promote a “robust speech environment surrounding matters of public concern.”[99] This collectivist-oriented shift would allow for government to at least backstop the platforms in their efforts to root out disinformation advertising.

Like Hasen, we see that a headwind may be building against government regulation requiring transparency of online political advertisements, even where the regulation would stop disinformation.[100] Nevertheless, prior libertarian efforts to build a case for a “substantial overbreadth” doctrine would be less likely to succeed in the wake of the 2016 election campaign. Regulators can now show demonstrable damage,[101] intent by meddlers (both foreign and domestic) to mislead and to affect elections, and involvement by two entities with little First Amendment protection: foreigners and non-humans.[102]

B.  Choice of Regulator

Negative market externalities justify regulation. Market externalities are often conceived of as negative effects from market activity on our environment or public health—say, from air pollution. Here, the market activities are platforms chasing profits without exercising gatekeeping or transparency responsibilities, and the externalities are costs borne by social media users in their roles as voters and participants in civic life. The platforms have so far not internalized the cost that their ad placement systems impose.

Here we discuss the relative merits of industry self-regulation and government regulation, each within their own constitutionally permissible spheres of action.

1.  Industry Self-Regulation and Co-Regulation

It is not a forgone conclusion that government must be the main regulator to address the disinformation advertising problem. Platforms have long resisted government regulation. Nate Persily has argued that “the principal regulator of political communication will not be a government agency but rather the internet portals themselves.”[103] The platforms are well situated, technologically, to minimize the amount of disinformation advertising that reaches their users and have already experienced some success in that regard.

Facebook and Twitter were the locations of most of the “attacks” in the 2016 election, so this Article focuses on them. After dragging their heels,[104] both companies have taken steps to prevent future attacks, actions that are also aimed at heading off government regulation. The platforms have also continued to experience disinformation attacks.

The problem with leaning on platforms to self-regulate is their conflicts of interest and political vulnerabilities that push them away from strong action to combat the problem. Platforms make money from advertising, including disinformation advertising. The more ads they sell, the more content that is promoted on their platforms, the scarcer the space for ads, and the more they can charge per ad. The more users that click through on any pay-per-click ad, the higher the platforms’ ad revenues. Disinformation advertising headlines are refined to attract the most clicks, accruing money for the platforms in the process. The presence of bots and other non-human accounts inflates the number of users on the platforms, increasing the amount they can charge to sell ads to all users, not just to foreign interlopers in our democracy. While bots and disinformation advertising can degrade the user experience and damage long-term revenues of the platforms, their short-term bottom line increases because of advertising and inflated user counts.

Platforms are also politically vulnerable. After Mark Zuckerberg initially announced the self-regulatory measures Facebook plans to implement, within a week, he had softened his stance and had begun to “both-sides” the issue, saying “[b]oth sides are upset about ideas and content they don’t like.”[105] Professor Zeynep Tufekci, who researches online disinformation and authoritarianism, was quick to point out that his reaction reflected a common fear of social media companies: that they be depicted as “anti-conservative.”[106] In other words, the social media companies will feel pressured to over-correct: even though the disinformation advertising that currently circulates online is overwhelmingly anti-liberal or pro-conservative, the political vulnerability of the platforms means that they will under-address the problem. Their political vulnerability leads them to be an unreliable self-regulator.

To the extent that the platforms do self-regulate, their current efforts are still far from the typical model of industry self-regulation or co-regulation. Industry self-regulation requires an industry-level organization that regulates its members by setting rules and standards about how they should conduct their business.[107] Industry self-regulation is almost never “pure” self-regulation, but involves a nexus to a government co-regulator. Government agencies provide legal backstops to the self-regulation negotiated by industry participants, along with imposition of civil or criminal penalties on violators.[108] Co-regulation stands the best chance of success when certain conditions exist. Most importantly, industry actors must be committed to the purpose of the regulation.[109] The government must also be able to extract information from industry—here, the platforms—as to how the self-regulation efforts are succeeding. The state requires both “expertise and capacity to assess the performance of nongovernmental regulators; and those nongovernmental regulators must face a credible threat that their public overseers will assume regulatory jurisdiction if they do not meet their obligations.”[110]

An analogy to co-regulation by an industry group closely related to the issue at hand illustrates industry self-regulation with government backstops. The Digital Advertising Alliance runs an opt-out program from online advertisements based on cookie-tracking.[111] The industry enforcement process consists of confidential review of complaints by a committee, followed by board-level censure, membership suspension or expulsion, referral to the Federal Trade Commission or law enforcement, and publicity for non-compliance.[112] By comparison, the platforms’ initial offerings to address disinformation advertising are paltry. It took Facebook over a year to even suggest it would reach out to other companies to “share information on bad actors and make sure they stay off all platforms.”[113] We are a long way from effective and comprehensive industry self-regulation or co-regulation. Therefore, we must consider ways the government can constitutionally, and effectively, regulate in this area.

2.  Government Regulation

Government regulation is coordination-facilitating and symbolically important. It facilitates coordination between industry members in mundane, but important, ways. For example, government can require platforms to collect information and provide it to the government or directly to the public in a uniform format. Standardized reporting allows the public, watchdog groups, journalists, and scholars to compare across platforms and over time in their data analysis. Moreover, shared information across platforms would be useful for platforms wanting to ban identifiable bad-actors who use the same accounts to buy, place, and promote ads. Government regulations also facilitate coordination through disclosure and audits to ensure compliance.

Government action in the realm of online political advertising is also symbolically important. In areas of national security and elections, signaling matters. The fact that our policymakers have been so quiet in the face of disinformation advertising and multiple strong statements by national security experts sends important signals to the attackers and the public. The attackers learn that they may continue with impunity. The public may perceive that government does not take the attacks seriously.

Government regulation also matters because law has expressive value.[114] Law itself has special gravity, and adopting a policy into law signals the importance of the policy to the government. Codifying a policy can affect citizen expectations and behavior.[115] It also signals that all members of a regulated industry must play by the same rules, an important rule-of-law value. In deciding on a regulatory approach, policymakers should keep in mind that

[p]olicy choices do not just bring about certain immediate material consequences; they also will be understood, at times, to be important for what they reflect about various value commitments—about which values take priority over others, or how various values are best understood. Both the material consequences and the expressive consequences of policy choices are appropriate concerns for policymakers.[116]

Therefore, even in areas of regulation where the industry could self-regulate (or co-regulate with government), sometimes the government should still act to signal its seriousness in protecting important values.

Government is constitutionally prohibited from anything resembling censorship, and moreover, the platforms are in a better position to experiment with interventions that address the disinformation problem head-on. Nevertheless, where, as here, the platforms’ incentives and the public’s social welfare are misaligned in a way that would prevent the platforms from self-regulating (or prevent them from credibly committing to a self-regulation scheme), government should do what it can within constitutional limits, to help re-align actors’ incentives.

All of this political disinformation flooded into social media at a time when the FEC lacked an effective framework for regulating any political advertising online, regardless of content. When political advertising occurs on television, cable, satellite, and radio, government disclosure requirements are comprehensive, and compliance is high. Due to gaps in the regulatory regime and clever lawyering by political attorneys, the same advertisement that would be subject to disclaimer and other transparency requirements on television can go without them if it instead appears online. We explain these gaps in Part III.

III.  Our Current, Insufficient, Regulatory Framework for Online Political Advertising

In the years leading up to the 2016 election, voters learned about the inadequacy of the federal campaign finance regulatory framework to handle the coming flood of money and advertising, both online and off. Insiders, such as former FEC lawyers quoted in the media, called campaign finance in the United States the Wild West and reported that [c]andidates and political groups are increasingly willing to push the limits . . . and the F.E.C.s inaction means that theres very little threat of getting caught.[117] All of the regulatory and institutional weaknesses that drove this kind of reporting are even more extreme in the narrow regulatory regime we consider here—that of online advertising. Online political advertising differs from older forms of political advertising in important ways and deserves a regulatory framework that accounts for the differences. First, it is more likely to be disguised as informational content, or “native.” Second, it is more likely to contain disinformation. Third, it is more likely to be untraceable by the public or candidates hoping to speak to the same audience. And fourth, it is much cheaper. All of these features matter to shaping a regulatory framework that helps the public trace the source of the (dis)information they view online and the government keep foreign influence out of our elections. In this Part, we describe the current regulatory framework and its gaps.

Public Communications.” Most FEC transparency requirements attach to “public communications.” Public communications include messages displayed on broadcast television, in print, on billboards, etc. It also includes all committee websites and emails whenever a committee sends more than 500 “substantially similar” messages.[118] Importantly, the current definition excludes Internet ads “except for communications placed for a fee on another person’s or entity’s website.”

Disclaimers. The law requires disclaimers for many kinds of political advertisements. They say “Paid for by the XYZ State Party Committee and authorized by the Sheridan for Congress Committee,” or “Paid for by the QRS Committee (www.QRScommittee.org) and not authorized by any candidate or candidate’s committee.”[119] On broadcast, cable, and satellite political messages, the FEC requires disclaimers on all public communications (1) made by a political committee, (2) expressly advocating for the election or defeat of a “clearly identified” candidate, or (3) soliciting contributions.[120] Disclaimers are also required on (4) electioneering communications, which are publicly distributed communications that refer to a “clearly identified candidate for Federal office” and are distributed sixty days or fewer before a general election or thirty days or fewer before a primary.[121] When we apply these four disclaimer triggers to Internet communications, regulatory coverage and disclaimer requirements decrease substantially. The first three triggers, for communications from political committees, containing express advocacy or solicitations, apply only where the communication is “placed for a fee.”[122] The fourth, electioneering communications, is completely inapplicable, because electioneering communications are defined to exclude political messaging on the Internet.[123]

As noted in Part I, in the weeks leading up to the election, well within the electioneering communications window, disinformation ads explicitly naming presidential candidates generated more attention than news articles from leading national newspapers. Among the disinformation ads that did not expressly advocate for the election or defeat of a candidate, many still mentioned candidates by name or showed their images. Were they on broadcast, satellite, or cable, our regulations would have required disclaimers as electioneering communications. Because they were placed online, we do not know who paid for them.[124]

When we combine the current definition of political communications with the current disclaimer requirements, we end up with the following: A paid ad distributed via social media (on the Internet) must carry disclaimers like any other public communication if it advocates for the election or defeat of a clearly identified candidate. However, anything posted for free, like a blog post, a Tweet, or even disinformation that one generates personally from their personal profile or page, requires no disclaimer, even if it mentions a candidate by name right before the election, and even if it is amplified by a paid “bot army” or purchased “shares” on Facebook.

Many communications placed online for a fee—which would otherwise require disclaimers—have not had them. Presumably, the advertiser is either willing to disregard the regulatory requirements, is spending below the threshold requiring regulatory compliance, or would claim an exemption under the “small items” or “impracticable” exceptions to disclaimer requirements.[125] The small items exception applies to communications on physical items, such as bumper stickers, buttons, and pens, which were considered too small to bear a disclaimer.[126] The impracticable exception applies to communications in skywriting, water towers, and clothing, where it would be too difficult to include a disclaimer.[127] However, applying these exceptions to political advertising would have been disingenuous. Because of landing pages on click-through political advertisements, it has never truly been impracticable for an advertiser to provide a disclaimer. They could always have provided one at the landing page. That fact did not stop platforms from asking the FEC whether the exceptions apply to character-limited ads on their platforms. In 2011, the FEC could not decide whether Facebook ads with fewer than 200 characters of text could qualify under either exception;[128] a 3-3 vote resulted that was long interpreted as an exemption.[129] The FEC has since clarified that a disclaimer is required, but they could not agree on the rationale.[130] The FEC has also recently failed to decide whether nonconnected political committees[131] may use Twitter without placing a disclaimer on their Twitter profiles.[132] This opinion gives the green light to groups that want to hide behind Twitter handles and not reveal even the group’s website or physical address.

Disclosure. In addition to gaps in our disclaimer requirements, our disclosure rules are also fraught with holes and exceptions that have led to untraceable money pumping through our elections.[133] Campaigns, party committees, and PACs must all submit regular reports to the FEC, disclosing their contributions and expenditures.[134] However, since Citizens United, over half a billion dollars has flowed through 501(c) tax-exempt non-profits, which are typically organized as 501(c)(4) or 501(c)(6) “social welfare” organizations, to either make independent expenditures or to support groups that do.[135] These “dark money” groups are not required to publicly disclose their donors.[136] Funds can be donated to 501(c)s by individuals, corporations (including LLCs), unions, and anyone seeking anonymity—including foreign sources. (Foreign spending “in connection with an election” is illegal, but would be easy to do via these avenues, as we discuss below.)[137]

The groups do disclose their contributions to the IRS. But with an audit rate of 1% for tax-exempt non-profits, the IRS is unlikely to investigate the sources behind donations to so-called “dark money” organizations, even where they use their resources to spread disinformation.[138] Congress has prohibited the Securities and Exchange Commission from using appropriated funds to draft or implement rules requiring the corporations it regulates to disclose political spending.[139]

Transaction-level disclosures are important. In order to aid enforcement on broadcast, cable, satellite, and radio ads, the Federal Communications Commission (“FCC”) requires reporting of the financial details of a transaction purchasing an ad, as well as the station, time, and programming during which the ad ran. The ads themselves, while not required to be retained by broadcasters, are captured by the public in all the ways the public records live programming. There is currently no requirement at the federal level that online political ads or the data around their placement be retained, making enforcement virtually impossible.

Foreign influence. Some political disinformation ads may also violate the FEC’s ban on spending by foreign nationals “in connection with any federal, state, or local election in the United States” and making any disbursement for an electioneering communication.[140] The restriction was upheld in Bluman v. Federal Election Commission.[141] At least some disinformation ads violate the ban on foreign spending for independent expenditures. Independent expenditures advocate for the election or defeat of a “clearly identified candidate” in express terms.[142]

Of course, some disinformation ads are merely “issue ads.” They seek to influence voters by shifting public perception, but do not advocate for the election of or defeat of any particular candidate or even mention a candidate. Under our current regulatory framework, a hostile foreign government can disseminate divisive information about fraught social issues or spread disinformation about a candidate without violating American campaign finance law, even if they are placed right before the election.[143]

In sum, because of outdated loopholes, we face the reality that disinformation advertisements, which often mention or display candidate names and images and would be considered electioneering communications if placed elsewhere, are distributed online with no disclaimers, little disclosure, and, sometimes, with foreign money. Online advertising has become exponentially more important for political campaigns since the FEC adopted its outdated regulations in 2006, and it will become the most important way for politicians to communicate with voters in the very near future.[144] Excluding a large portion of online advertising from disclosure and disclaimer regulations is problematic, particularly in light of the studies reviewed in Part II suggesting that disclaimers and disclosures provide information that affects voter decisions, and the court’s longstanding belief that using disclosure to inform voters is a compelling government interest.

IV.  Constitutionally-Permissible Regulations to Address Disinformation Advertising

We now turn to our proposals. We focus on transparency, education, and “nudges” that government can constitutionally implement. The reforms we propose would reach any political advertising that is placed, promoted, or produced for a fee. Viral disinformation without paid shares or re-tweets, memes made by individuals at home for free and posted to personal social media sites, and similar low-cost and low-volume activity, would not be subject to the regulations we propose.

We recognize that defining which advertisements deserve regulation is a persistent and sticky problem in campaign finance regulation. Our definition has two main components: (1) cost and (2) intent to influence peoples’ votes. Political ads cost money to produce, post, or disseminate—including payments for microtargeting, any off-platform payments to “bot farms,” and paid “likes” and “shares” for distribution. Political ads also aim to influence elections. Evidence that an ad aims to influence the election, rather than merely discuss “issues” is a particularly thorny category. The current line between an ad aiming to influence the election and one merely discussing “issues” includes “express advocacy” or, within a certain window before the election, reference to a clearly identified candidate. This line is hard to police, and the window is meaningless in the online setting, in which an ad can persist over time.

An example may help illustrate the definitional challenge. Suppose that a group called “Liberals Against Forced Motherhood” has spent more than the minimum threshold on political advertising and is registered with the FEC. Consider three scenarios.

1. Suppose the group posts a meme online and pays Facebook to promote it in the newsfeeds of its followers. The text of the meme says, “Hands off our birth control!” With no other words or imagery, this would be considered an issue ad under the current federal rules, no matter when it runs, and would not require a disclaimer.

2. Now suppose the group posts the meme and pays Facebook to promote it in the newsfeeds of its followers, and the text of the meme overlays a photograph of a Republican presidential candidate. Under the current federal rules, that advertisement would not be subject to disclaimer requirements unless it ran right before the election, during the “electioneering communications” window, because the photograph shows a “clearly identified candidate.” Of course, given the nature of social media, it can be posted well before the “electioneering communications” window opens, and members of the group can continue sharing and circulating it, disclaimer-free, right before the election.

3. Finally, suppose the group posts a meme online and pays Facebook to promote it in the newsfeeds of its followers, and the text of the meme says “Hands off our birth control! Vote against Candidate X!” Under the current federal rules, this meme requires a disclaimer no matter when it is posted because it contains “express advocacy.”

Now change the facts. What if the meme is posted “for free” on the group’s Facebook Page, and fake Facebook users have been paid, off-platform, to share it? The group does not pay Facebook for promotion, but the ad circulates, nevertheless. The current federal rules have been interpreted in a way that would not require disclaimers on any of them. But we believe this interpretation, made in the days before bots and fake “shares,” should be updated to account for our new reality.

Finally, consider one more distributional change. Suppose now that, instead of paying Facebook to promote only to page subscribers, the group pays Facebook to promote the ad to anyone who “looks like” its subscribers and any women who are between the ages of 18–45, who have a college education, who are White, who “like” Planned Parenthood, and who live in swing states. Does this kind of micro-targeting turn the issue ad in the first scenario into a political ad? We think it does—particularly the “swing state” targeting. Even if disclaimers should not be required, the ad itself should be retained so that targeted users can know who is attempting to persuade them.

Before social media, most ads appeared on television, radio, or in print. They were fewer in number, limited in time, and targeted large groups of the electorate. In that context, it was easier to police the line between electioneering advertising and issue speech. In light of the realities and challenges of political advertising online, issue speech has become so politicized and so microtargeted that we need to have a national conversation on where to draw the line.

Our proposal follows. It is modest, it is constitutional, and it will not solve the problem of online disinformation. It is, however, a necessary and important step in the right direction. After discussing our proposal, we briefly provide self-regulatory considerations for platforms wanting to take real steps to reduce the quantity of disinformation advertising on their platforms.

A.  Improve Transparency

As more political advertising moves online, without regulatory changes, the likelihood that voters see untraceable ads increases. Without transparency, we cannot “follow the money” behind political advertising we see online. Most relevant to the world of disinformation advertising, we cannot know how much of the messaging we see online is foreign-funded or distributed. It took almost a year for Facebook to make public some of the foreign-funded ads it displayed to its users. If online advertising, including disinformation advertising, were subject to transparency regulations, we would have seen these funding sources in real time.

In order to subject online political advertising to disclaimer and disclosure requirements, the groups producing large amounts of it should be required to register with election administrators, just as they do when making political expenditures offline.[145] A regulation adopting disclosure and disclaimer rules for online advertisements would be a step in the right direction. We also propose a repository to facilitate real-time transparency of all online political ads as well as ex post enforcement of campaign finance rules. In this Section, we discuss three transparency-related regulatory changes for online political advertising.

1.  Require Platforms to Keep and Disclose all Political Communications and Audiences

Government should require political advertisers on large social medial platforms to save and post every version of every political communication placed online, whether video, print, or image, and whether placed “for a fee” or not. The communications should be placed on a dedicated and easy-to-locate page on the campaign’s or group’s website or user page on the platform, as well as on a dedicated page created by the platform. The communications should be stored in their entirety, and they should be posted along with a uniform set of data stored in a uniform format for easy analysis and comparison across campaigns, across platforms, and over time. The FEC should also retain this data, for longer term storage, and to ensure that it exists even when platforms change or cease to operate.

In addition to the communication itself, the online political advertising repository should contain the following data: when the communications ran; how much they cost to place and promote; candidates to which the communications refer; contested seat/issues mentioned; targeting criteria used; number of people targeted; and a platform-provided Audience identifier (“Audience ID”). For example, if a communication was aimed at women Facebook has identified as Democrats (from their profile pages), who “like” the show “Blackish” and also “like” Black Lives Matter, that information should be disclosed with the communication. Similarly, if the advertiser used outside consultants or internal data to generate a list of names, including through Custom or Lookalike Audiences on Facebook or similar services on other platforms, the advertiser must provide an Audience ID that will enable groups to engage in “counter speech” to the same audience. The Audience ID will be linked within the platform to a list of user names, but the platform should not disclose the audience names to anyone but the FEC.

The repository we propose is simply an improved version of the Political File for television commercials. The design of the Political File is outdated,[146] and our political advertising repository will better serve our current technological abilities and democratic needs, with which political advertisers already comply, and which reveals their targets.[147] Of course, political advertisers will protest that this disclosure burdens their speech by requiring that they disclose their microtargeting strategies. The objection is weak, considering they reveal targets via the Political File already. Crucially, the Political File contains targeting information, because the broadcaster, time of day, and programming are all disclosed. A media company’s audience at a certain time of day for a certain program is a particular set of people the advertiser is targeting.

Consider an example to illustrate how television advertising already embeds audience information. When a campaign runs a television ad during an 8:30 p.m. airing of “Blackish” on the ABC affiliate in the St. Louis market—all of which is information that is disclosed in the Political File—the campaign’s targeting strategy is revealed.[148] Online targeting can be “narrower,” in that the communications can be targeted to a smaller group of people, but just because online targeting strategies are more precise does not grant the speakers more First Amendment protection. The size of the audience is irrelevant to the constitutional question of whether or not targeting criteria should be disclosed. If anything, communications targeting a narrower audience may be more damaging to civic values because they are aimed at suppressing or mobilizing voters, rather than making broad persuasive appeals. Narrow targeting may therefore deserve less, rather than more, constitutional protection. Finally, posting targeting criteria and Audience IDs for online ads facilitates counter speech in the same way that disclosure of the date, time, station, and program in which a television ad runs facilitates counter speech to the same audience.[149]

The repository is particularly helpful when it comes to enforcement. Advertisers peddling disinformation—particularly those located abroad—have little incentive to make truthful and timely disclosures and disclaimers. Penalties occur long after the election after all. The current enforcement mechanism is triggered with a complaint to the FEC. It is a purely reactive system, and it relies on a complainant actually seeing the offending content. The advertising repository we propose facilitates decentralized enforcement by allowing groups to flag disclaimer violations after they occur. It is therefore crucial that the repository hold communications for a reasonable length of time. Television stations and cable and satellite companies are required to maintain the Political File for two years. The Honest Ads Act, a Senate bill introduced in 2017—which calls for a repository—would require platforms to retain the communication for four years.[150] Facebook’s current advertising archive holds ads for seven years. Maintaining the repository for the duration of the campaign plus a reasonable amount of time post-campaign is important.[151]

It is also important that reporting be coordinated across all online platforms. Platforms and political advertisers must use a uniform reporting format for all advertisers and distributors to report their activity. Gone are the days of handwritten and scanned forms, like we see in the Political File. Platforms can offer repository reporting and storage as a service to ad buyers and distributors, and reporting can happen as soon as the ad begins to appear in users’ feeds. Regulators, researchers, civil society watchdogs, and data journalists can analyze the data, act based on it, and report to the public the current state of affairs in online political advertising. And yes, opposing campaigns can run counter-messaging based on it, just as they can with disclosures to the Political File for television.

These transparency requirements should also have the effect of reducing the incentives to produce disinformation advertising and other any divisive advertising microtargeted at small subsets of the population. Microtargeting is not, in itself, bad. But modern day campaigns are best able to target extreme voters. Microtargeting skews the demographics of the voting population away from the district itself and contributes to elite political ignorance about the political preferences of constituencies.[152] As individual microtargeting possibilities increase, campaigns and groups will want to give slightly different messages to different people. Indeed, one particular ad buy containing disinformation advertising (and paid for by Russians) was aimed in exactly this way, targeting people who had expressed interest in “LGBT community, black social issues, the Second Amendment, and Immigration.”[153] If advertisers are required to post every version of every ad on the same site, along with targeting information, voters could detect when a group is trying to “divide and conquer” parts of the electorate. The message will reach voters via informational intermediaries. Opposition researchers can use their opponents’ divisive strategies against them. Smart data analysts can create tools that voters can use to see what their newsfeed would look like with a different configuration of “likes” and information. A user who sees ads in favor of guns, against abortion, and in support of Republican candidates could use the tool to see how her feed would look if she lived in a different zip code, “liked” Planned Parenthood and Everytown, or identified herself as a Democrat on her profile. Knowing the kind of advertising (and disinformation) our fellow voters receive can help aid deliberation in democracy.[154]

i.  Triggering Conditions

Which online messages should be subject to transparency rules? Three, non-exclusive options are possible: (1) the traditional bright line rule of candidate or ballot initiative mentions; (2) a more-easily automated rule of identifying political content by targeting; and (3) classifying the advertisers as political or not, gating their access to the platforms for advertising buys, and requiring repository storage of everything they run. We think all three can be deployed together, where any ad that fits any of the three rules would be included in the repository.[155] Inclusion in the repository does not mean that disclaimers and disclosure are required. That is a separate determination to be made based on a loophole-free version of our existing regulations and described more fully in Section IV.C.

 a.  References to Candidates or Ballot Propositions

The cleanest regulatory line tracks the current regulatory requirements for disclaimers in other contexts: ask whether the ad advocates for the election or defeat of a clearly identified candidate or ballot initiative; or whether the ad mentions or shows a candidate or proposition and airs within a certain specified time before the election. We believe an ad belongs in the repository if it mentions or shows a candidate or issue any time after a candidate declares her candidacy or the issue is approved for the ballot. Given that disinformation advertising preceded the 2016 election by more than a year, we believe this modest temporal expansion for electioneering communications is wise given the realities of campaigning. We also believe that tying the expansion to declarations of candidacy and ballot qualification—when campaigning heats up—helps its chances against a First Amendment challenge.[156] Our proposal is also gameable, encouraging groups to place as many ads as they can without repository capture before their preferred candidate declares, in hopes that they will still be circulating as the election approaches. Nevertheless, without more research into the realities of online political messaging over time, our proposal is as far as we think policymakers can confidently go within the bounds of the First Amendment.

Facebook already monitors ad content in order to minimize the amount that violates its terms of service.[157] It prohibits or restricts advertising for tobacco, drugs (illegal or prescription), weapons, adult content, “sensational content” (“[a]ds must not contain shocking, sensational, disrespectful, or excessively violent content”), misleading or false content, and many other categories that the platform already tries to identify and reject before it goes live as an advertisement. The advertising review process—until the post-2016 disinformation advertising political maelstrom—was entirely automated, though Facebook has begun to include humans in advertising review. Our broader point is that reviewing ads for mentions of candidates and political issues is not difficult, particularly with human involvement.[158]

As a back-up method, the platforms should require advertisers to indicate whether the ad mentions a candidate. The platforms can attach penalties (refuse to sell ad space, raise prices, temporarily suspend accounts, report to government regulators) on advertisers who lie about the content of their ads. A system that is based on ad content will require spot checks and a way for advertisers to object to their inclusion in the repository as well as for viewers to report whether an ad that should contain a disclaimer actually does.

 b.  Political Targeting Categories

Another triggering criteria would be easy for social media companies to automate. We can require ad disclaimers and inclusion in the repository when an ad is targeted at explicitly political groups or contains “suspect classes.” Targeting categories might include political parties; “likes” or “follows” of political parties, candidates, issues, or groups that have parties, candidates or issues in the group’s name (like “Texans for Hillary” or “Minnesotans Against Abortion”); a racial category combined with any other listed criteria; and other similar categories. Even if this is the only trigger, the likelihood that a consumer advertisement would be swept up in a repository requirement is probably slim, as consumer data is not very predictive of political persuasion and not very useful for campaigns.[159]

 c.  Identify Political Ad Content by the Speaker (and Know the Speaker)

Facebook has a political advertising sales and operations team—indeed, it has teams “specialized by political party, and charged with convincing deep-pocketed politicians that [Facebook does] have the kind of influence needed to alter the outcome of elections.”[160] There are teams assigned to campaigns for each major party. Antonio García Martínez, a former Facebook product manager who ran the targeted ads program, argues that Facebook is already set up to adopt a “know your customer” type approach, similar to those used in the banking sector to prevent money laundering. Platforms should be required to “log[] each and every candidate and SuperPAC that advertises on Facebook. No initial vetting means no right to political advertising.”[161] For the platforms, the “know your customer” approach is useful for creating a “gate” that allows platforms to avoid obvious foreign money and to intercept and stop foreign disinformation advertising in our elections. A similar intervention could require a U.S. bank account to purchase ads, which will not stop foreign intervention, but will ease enforcers in tracing the source of advertisements.[162]

Facebook does not currently gate political account creation from the beginning.[163] Political advertising is targeted in such a way that the platforms could identify Pages that attempt to circumvent the additional check on political content by passing off their advertising as commercial advertising. Subjecting political advertisers to a source check can be done by Facebook with little difficulty. In the interest of national security, government should require that the platforms report when an ad is obviously funded by a foreign source, in real time, or as soon as the platform becomes aware of it.


                            ii.  Limits to a Repository Requirement

The repository requirement cannot solve all challenges of online political advertising. We imagine a challenge to the scope of the repository—perhaps it is underinclusive. What is special about the online context—why not require a repository for offline messaging as well, such as mailers and print ads? Some cities, like Los Angeles, require that all campaign and independent expenditure communications be retained and disclosed, which includes any “message that conveys information or views in a scripted or reproduceable format, including but not limited to paper, audio, video, telephone, electronic, Internet, Web logs, and social media.”[164] Requiring retention and disclosure of printed communications is helpful and important, but it is less urgent than creating a repository for online ads, because printed materials do not disappear like online ads currently can. Enforcement of our disclosure, disclaimer, and substantive campaign finance rules for online political advertising is almost impossible without the repository.

An administrability concern lies in another game-able aspect of the current regulatory framework, and it should be updated for the age of social media and viral ads. Some ads are placed for free, but promoted via bots, sock puppets, and inauthentic social media users (machine or human). Their promotion “services” are designed to appear organic, and payment to secure the ad shares and re-tweets occurs off-platform. Platforms are now able to identify suspicious activity from accounts that have an outsized impact, so some of these faux-organic posts are detectible now.[165] Payments for ad promotion by humans and non-humans alike are important expenditures, and they should trigger reporting requirements once they reach a minimum threshold.[166] In brief, political ads that would otherwise be subject to disclaimers if they were placed for a “fee” under the current regulations, but which are placed for “free” and promoted via paid bots should contain disclaimers. They aren’t “free” content. This is only administratively difficult where the group making the payments is inclined to avoid reporting payments to services providing bots, trolls, and other inauthentic users in order to boost their messages. Nevertheless, its violation provides an important enforcement “hook” to reduce disinformation online.

iii.  Current Efforts to Aggregate Ads

Facebook is the most advanced of the platforms in its efforts to collect political communications, but its efforts still fall short of what its users deserve. In May 2018, Facebook posted an Archive of Ads with Political Content. The Archive discloses the Page that paid for the ad, all ads run by the Page, and the audience makeup, but not the targeting criteria.[167] While the Facebook’s Archive addresses several reforms we have requested publicly in the past eighteen months, their design falls short in several important ways.[168] First, because it does not require information about the true source of the communications, voters still do not know who is speaking to them. Rather, they know who paid to boost an ad into their feeds. Second, the Facebook Archive does not provide the targeting categories or an audience ID for a list of users that were targeted with the political communication. The Archive reveals age and gender distribution of the audience, as well as the state in which they reside, but those are certainly not the only targeting criteria used. For any given ad, the women and men of various ages were not targeted merely because of their age, sex, and location; they were targeted because of other information that Facebook knows about them, such as what issue-oriented groups or other candidates they like or follow on the platform. A candidate who is the subject of a disinformation campaign would not be able to speak to the same audience unless she spoke to the entire population in the geographic areas targeted by the disinformative campaign. This is no remedy for disinformation attacks on social media. Moreover, the First Amendment does not require this level of protection for disinformative political speech. Facebook should make targeting criteria plain, to enable counter speech. Third, the Archive affects only one corner of the vast world of social media, when we know industry-wide coordination is needed.

Looking around the industry, each platform has suggested its own “fixes,” all of which suffer the ills of not providing targeting criteria and not requiring information about the true source of the communication.[169] Moreover, the platforms’ proposals are not coordinated, but will create an overlapping web of platform-specific fixes. Voters want to know who is trying to influence them, and to accomplish this, they need one online “file” for all political communications, which is easily searchable, and which is divided into categories of who was targeted and for what reason.

The Honest Ads Act contains a rough description of a set of transparency requirements that would apply to any person or group spending more than $500 (aggregate) to make electioneering communications online and would require that the platform maintain a public file.[170] The current draft of the bill is vague on whether the system is disaggregated, like the FCC’s Political File, where users must search station-by-station and year by year. If the current proposal’s design is also disaggregated, then members of the public wanting to view the ads would be stymied by having to search advertiser-by-advertiser to find the ads they seek. This early design can be improved. First, disclosure should be standardized across platforms. Second, the $500 aggregate spending trigger is probably at the upper limit of what will be effective. It may be politically pragmatic to include a spending trigger, but the Constitution does not require one, and the Political File does not have one. Five-hundred dollars is well below the campaign contribution limit and the registration thresholds with the FEC, but it has enormous advertising reach on Facebook. A numerical example illustrates. Imagine a Super PAC called Vermonters for Bernie. Vermont has around 500,000 voting-aged residents. Suppose that 400,000 of them are on Facebook. For less than $4,000 and the current cost-per-impression price of less than a penny, the group could show all voting-age residents of Vermont the ad. Of course, a group would only target voters that it knew it wanted to turn out to vote or that it knew it wanted to suppress—in other words, a much smaller number than the 400,000 or so registered voters on Facebook.[171] For $250, an ad will have 25,000 “impressions,” appearing in the newsfeeds of 25,000 people.[172] Considering the last election came down to fewer than 80,000 voters in three states, we believe the threshold triggering regulation should be fairly low.[173] The platforms can also advise the advertisers of their obligation to register with and report to the FEC once they hit a certain threshold, to avoid a situation in which unsophisticated actors are swept up in the regulatory regime for very small expenditures.

2.  Close the Loophole for Disclaimers in Online Ads

Despite its recent embrace of it, Facebook has long opposed transparency in online political advertising. Political advertising placed “for free” is still political advertising, and the public has a right to know who paid for its creation or distribution.[174] To enforce disclaimer requirements, platforms can deputize users to report disclaimer violations, in the same way that the platforms allow users to report violations of the terms of service. They can also perform random spot-checks to help enforce the requirement (and deter attempts to circumvent it), by asking users after the ad is shown whether it contained a disclaimer.

The FEC is again feeling public pressure to close the loophole for disclaimers in online ads.[175] It held a hearing about online advertising disclaimers,[176] but given the political and institutional realities of that body in 2018 (with a bare quorum and inability to agree on many issues), it seems unlikely that the FEC itself will make much progress in the near term.

As for the content of disclaimers, at a minimum, the disclaimers should reveal the same information required when ads are run on television or radio.[177] Since Citizens United, legislators and activists have urged that disclaimers on all ads (online or not) contain the names of the top donors to the entity running the ad. This strikes us as reasonable, and political science research has shown aspects of these more detailed disclosures to be effective.[178]

3.  Eliminate Donor Anonymity for LLCs and 501(c) Organizations

Under our current disclosure and disclaimer framework, the public only sees the actual names of donors under certain circumstances, such as when the donors give to a campaign, party, SuperPAC, or other outside group subject to disclosure requirements. Even if the loophole for online advertising disclaimers is closed, the broader problem of LLC and 501(c) disclosure will remain. This loophole matters for disinformation advertising, because even if the disclaimer requirements are extended to online ads run and distributed by LLCs and 501(c) groups, voters cannot “follow the money” without extending disclosure requirements to corporations making independent expenditures.

Why does this matter? For starters, the holdings in Citizens United and SpeechNow combine to imply that limits on independent expenditures are unconstitutional. Mega donors to outside groups can—and do—seek anonymity by making their independent expenditures through either their own anonymous LLCs or through 501(c) groups.[179] Money is passed from group to group in a “daisy chain” of limited transparency.

We do not know what share of online ads is currently run by groups without disclosure requirements. The current legal regime means that there is no limit to the amount of political messaging that could come from anonymous sources. Moreover, corporate anonymity can hide foreign influence in our elections. Saving ads run by corporations in the repository without requiring disclosure of their funders truncates voters’ ability to follow the money to learn about candidates and policies that matter to them.

B.  “Nudge” and Educate Sharers and Viewers

We now turn our attention to ways the government can help reduce the spread of disinformation advertising. User education is paramount. Scholars call efforts to preempt disinformation via education “inoculation.” There are various successful forms of inoculation, such as educating users about the “potentially misleading effect of false-balance media coverage,”[180] preemptive warnings to people about tactics used to spread misinformation,[181] and even online games that teach the main strategies of disinformation.[182]

A simple education campaign on platforms can inoculate users, helping them learn how to avoid spreading disinformation. For example, users can be taught how to tighten their security settings and reminded not to interact with disinformation in their newsfeeds, because the algorithms promote content based on interactions with it. Whether this requirement would invite a challenge as “compelled speech” under normal circumstances, it seems unlikely that platforms would protest it in this political climate. On firmer constitutional ground, though much more expensively, the government could pay to place inoculating ads on the platforms.

Viewing less disinformation in the first place is important, because we are bad at recognizing and remembering corrections to false information. Disinformation, especially when repeated, persists in our minds. Users can view less disinformation if platforms provide an opt-out or opt-in system to viewing disinformation and viewing content from sources that have regularly spread disinformation.[183] An opt-out system for consumer and service advertising already exists. AdChoices, run by Digital Advertising Alliance, allows Internet users to opt out of being tracked by advertisers who are members of the alliance, who use “cookies” and tracking to present ads to Internet users based on previous internet activity. Default settings can be sticky.[184] For example, under the AdChoices program, only a small number of people actually opt out.[185] If government required platforms to default users to not view narrowly targeted political or issue ads, and instead platforms offered to users the choice to opt-in to viewing that content, low up-take would reduce the amount of disinformation that each viewer encounters. An opt-in (or out) system would reduce ad revenues for platforms selling political ads, but political ads are a miniscule part of platforms’ overall advertising revenue. As for the constitutionality of a government-imposed opt-in or opt-out requirement, there is no case directly on point.[186] Government action is not strictly required here, if platforms are willing to sacrifice a bit of profit. They can create an opt-in system voluntarily.

These interventions will not stop everyone who shares political disinformation. Some people are particularly motivated to share it. Partisan perceptual bias and motivated reasoning present additional challenges to efforts to convince people to stop spreading disinformation advertising.[187] Partisan perceptual bias is distortion of “actual-world information” in the direction of “preferred-world states,” which can occur when a fact has positive or negative implications for one’s party.[188] Motivated reasoning, observed here as directionally motivated reasoning, “leads people to seek out information that reinforces their preferences (i.e., confirmation bias), counterargue information that contradicts their preferences (i.e., disconfirmation bias), and view proattitudinal information as more convincing than counterattitudinal information (i.e., prior attitude effect).”[189] Partisan bias and motivated reasoning mean that it may be difficult to affect the utility calculations of people “under the sway” of disinformation that agrees with their preferred policy positions.[190] Some social media users do not care that the items they share on social media have been debunked by third-party fact checkers. Political scientists Brendan Nyhan and Jason Reifler have observed that corrections to factual misperceptions can backfire to the point that “corrections actually increase misperceptions” among the group whose ideology is threatened by the correction, an effect observed (so far) among those who describe themselves as “very conservative.”[191] In sum, our politics may be so group-based that users could happily circulate news with contested content as long as it supports their candidate.

Therefore, platforms may need to be very active to reduce sharing of disinformation. A one-time opt-in (or out) process would be a helpful start, but the amount of disinformation that persists may still be damaging to democracy. That brings us to general approaches that the platforms can use, which probably would not survive a constitutional challenge if the efforts were required by government regulators.

C.  Considerations for Platform Efforts to Reduce Disinformation

Disinformation is “sticky.” A series of papers by Nyhan and coauthors suggest that “political myths are extremely difficult to counter.”[192] Reducing the amount of disinformation that voters are subjected to is useful from a human cognition standpoint, and as we have argued, from the standpoint of a thriving democracy. After an early period of minimizing its role,[193] Facebook has begun to address its disinformation problem.[194] It has experimented with using third-party fact checkers to identify and label disinformation, with mixed results.[195] It has also experimented with offering “related” stories that serve as fact correctives, polling users on which news sources they trust most, and suppressing all news in its users’ newsfeeds.[196] Finally, it has begun to move away from including news in newsfeeds.[197] That is a move away from publishers, but not necessarily a move away from disinformation, since so much disinformation seems to have emerged from Pages set up by so-called astroturf groups[198] and amplifying fake media sites.

Three general considerations will help any private regulatory framework to be effective. First, any efforts to label and identify questionable (or trustworthy[199]) stories or sources should be consistent across platforms. All voters should be able to quickly identify untrustworthy content across platforms and trust that all platforms use the same standards to classify it. Second, the platforms should aim at incentives. They can do so in overt ways, such as Facebook’s plan to temporarily ban advertisers who repeatedly share disinformation advertising that has been marked by fact checkers as “false news.”[200] They can also aim at incentives in deeper ways, such as the way Facebook’s algorithm demotes ads that provide “low quality” experiences when users click through.[201] Third, the platforms can turn down the volume of disinformation advertising by enforcing their terms of service, which prohibit bots and “inauthentic likes.”[202]

D. A Note About Feasibility

As much as the social media companies argue that the best answer is self-regulation, a broader look around the world shows that social media companies comply with fairly tight regulations in other countries. Some of these regulations would not survive First Amendment muster or might not be otherwise desirable in the United States. Nevertheless, platform compliance with regulations elsewhere belies platforms’ claim that the U.S. government regulations would be overly-burdensome.

Consider several examples from European regulations. First, Germany passed a law that fines media platforms for failure to delete “illegal, racist or slanderous comments and posts within 24 hours of being notified to do so.”[203] Because disinformation ads are often slanderous, a lot of disinformation ads will expose the platforms to penalties if not removed. The fines are steep: up to €50 million ($57 million), and estimates are that it will cost the platforms around €530 million ($622 million) a year to increase monitoring to avoid fines.[204] Germany has apparently seen a decline in disinformation on Facebook since the law was implemented in summer 2017.[205]

In the Czech Republic, the government is particularly concerned about Russian efforts to destabilize their democracy. Its interior ministry has launched a Center Against Terrorism and Hybrid Threats “tasked with identifying and countering fake news.”[206] Dozens of jurisdictions worldwide observe “election silence,” or a media blackout, in the time leading up to voting day, or during voting day itself.[207] These blackouts range from not allowing the mention of candidates aside from the fact that the candidate voted (France) to halting advertising except online and billboard advertising placed before the blackout period and not altered during it (Ontario, Canada).[208]

Many of these regulations would be considered government censorship beyond that which is tolerated for political speech in the United States. It is certainly true that autocratic leaders may use “combatting disinformation” as a convenient excuse for a crackdown on speech and expression. However, the broader point, for our purposes, is that social media platforms are subject to regulations worldwide and tolerate a good deal of regulation in order to enjoy the benefits of doing business in other countries. Therefore, they can certainly handle some government-imposed transparency requirements here in the United States.

V.  Task Assignment and Action Across Multiple Jurisdictions

Who should implement the government regulations? In this Part, we briefly survey existing federal regulator capabilities, as well as identify cities and states that have started to act in the absence of federal government regulation.

A.  Federal Agency Competencies and Task Assignment

Administrative agencies have a wide variety of missions, specializations, and clients.[209] The FEC’s core mission is to “protect the integrity of the federal campaign finance process by providing transparency and fairly enforcing and administering federal campaign finance laws.”[210] Its clients are comprised of voters (beneficiaries) and the candidates, parties, outside groups who finance messaging, and elected officials (regulated entities). Its position is complex because the regulated entities also control its funding. Perhaps as a result, the FEC’s mission statement is heavy on transparency and tepid on enforcement and administration. Nevertheless, it moves slowly, is gridlocked by partisan balance, and its skills are no match for sophisticated disinformation agents.

FEC enforcement is slow. By law, the FEC is a bipartisan agency and can have no more than three out of six commissioners from one political party. Partisan gridlock frequently prevents enforcement actions from progressing.[211] The FEC’s enforcement procedures require multiple rounds of voting: to proceed to an investigation; to allow the general counsel to conduct formal discovery and issue subpoenas;[212] to determine whether there is “probable cause” to believe a violation has occurred; and to litigate the matter in court if a settlement cannot be reached.[213] Resolving a matter can take years.

FEC suffers from partisan gridlock.[214] For a decade, Republican commissioners have resisted updating campaign finance laws and enforcing the existing ones.[215] Even as Facebook disclosed that Russian-linked trolls had purchased political ads on its platform during the 2016 election, the Republican FEC commissioners expressed worry that changing its policies would hinder “First Amendment rights to participate in the political process.”[216]

FEC’s jurisdiction and its employee skills do not match those needed to combat disinformation. It is charged with enforcing the ban on foreign contributions and expenditures, though its jurisdiction only extends to civil penalties.[217] Tracking down disinformation advertisers will require skills with money tracing. The FEC lawyers who conduct investigations are not expert in tracing money to its source using sophisticated computer-assisted tracing and data investigations. Even if it could escape partisan gridlock, the FEC is probably not the best fit for pursuing enforcement actions against disinformation advertising.

Our election security would be better served by placing investigation and enforcement capabilities in other agencies. One candidate is the U.S. Treasury’s Financial Crimes Enforcement Network, which has a core mission entirely related to financing, national security, and intelligence: “safeguard the financial system from illicit use and combat money laundering and promote national security through the collection, analysis, and dissemination of financial intelligence and strategic use of financial authorities.”[218] Other candidates to aid in investigation and enforcement are the FBI’s Cyber Crimes Division and the FCC. The FCC is ostensibly the regulator of social media companies. They keep the Political File for television ads, but have shown no interest in regulating political advertising on social media.

B.  The Role of State and Local Government

Regulation occurs at all levels of government. Individual cities and states control their own elections and can—and do—regulate the financing of those elections. Some states have already regulated disclaimers for online ads, for example, to provide more transparency than the federal regulatory regime requires.[219] These state laws currently target the advertiser and not the platforms, but if the states are comfortable departing from the low bar set by the federal government in this realm, they should also be comfortable doing so to keep disinformation out of their state and local elections. In the same way that the platforms are already accustomed to dealing with multiple regulatory jurisdictions across the world, they can handle a diversity of regulations domestically. If an overarching regulatory framework that protects voters in all elections does not emerge soon, local and state governments will continue to create new frameworks to protect voters in their own elections from disinformation.[220]

As of this writing, the main state-level action has been in New York and Maryland. New York’s Democracy Protection Act requires disclosure of all online ads, advertiser verification and registration with the NY Board of Elections, and an online archive.[221] The State of Maryland has enacted legislation requiring the platforms to retain all ads and audiences.[222] The California legislature is considering a similar bill.[223] Washington State and the city of Seattle are enforcing a longstanding legal requirement that “commercial advertisers” disclose the “exact nature and extent” of ads, the “names and addresses” of ad purchasers, and specific payment details.[224]