Madison's Music (13 page)

Reinforcing political equality is unquestionably a substantial government interest. The Supreme Court has suggested that it is even “compelling.” Once the act of spending money is demoted from “pure speech” to “communicative conduct,” the government would be permitted to place reasonable limits on campaign spending without being obliged to exhaust impracticable “less drastic means,” like subsidies, especially now that the Supreme Court has placed the most efficient form of subsidy—matching grant—constitutionally off limits. Actually, using subsidies instead of spending limits would become much easier, because under a democracy-friendly First Amendment it would be impossible to characterize a matching campaign subsidy system aimed at leveling the electoral playing field as a “penalty” on wealthy candidates.

Reasonable campaign spending limits would also prevent electoral corruption in at least two important ways. It would prevent “independent” supporters from pouring so much money into a campaign that the winner can't help feeling a sense of obligation (and a hope of future support) that causes her to tilt in the direction suggested by the huge supporter. We already recognize such a possibility in the contribution process. That's why the size of a contribution is limited. We already recognize such a possibility in the context of judicial elections. That's why judges can't sit on cases involving folks who spent a fortune to get them elected. The same reasoning calls for reasonable limits on all campaign spending by wealthy independent donors.

Equally important, a generous campaign spending cap would end the current campaign spending spiral that drives each candidate into a never-ending effort to raise funds out of fear that he will be outspent by an opponent. As we learned during the Cold War nuclear standoff with the Soviet Union, such a spiral forces both parties into frenzied action designed to avoid yielding an advantage to the other, even when neither wishes to act. A generous spending cap would permit both sides to relax and to focus on substance once the cap was reached. It would also eliminate the potentially corrupt bargaining power exerted by a supporter as a campaign draws to a
close and the candidate gets really desperate. In fact, a generous spending cap would make all contributions fungible, allowing a candidate to spurn support from a donor seeking undue influence because the cap could be achieved using alternative sources.

Demoting campaign spending from pure speech to communicative conduct would not deprive it of all First Amendment protections. No regulation could be “viewpoint driven” in an effort to weaken disfavored speech. Spending limits could not be unreasonably low. But reasonable efforts to cap campaign spending at a generous level (far higher than the unreasonably low ceilings imposed in the 1974 act that were struck down in
Buckley
) would ensure vigorously contested political campaigns without surrendering our democracy to the tender mercies of the superrich.

REDISCOVERING THE IDEA OF CONTESTED LEGISLATIVE ELECTIONS

Madison's democracy-friendly First Amendment would also provide a desperately needed antidote to the epidemic of political gerrymandering that has sucked the air out of our state and federal legislative elections. Widespread gerrymandering at every level of American government has made it almost impossible to topple a legislative incumbent powerful and wily enough to tailor-make a district that can't be lost. Constant gerrymandering of legislative districts virtually guarantees the reelection of incumbents and gives the party in power a disproportionate share of the legislative seats. In the 2012 elections for the House of Representatives, for example, Republicans won a comfortable 234–201 majority, despite being outpolled nationally by more than one million votes in House races. While a slice of the extra one million votes was in urban districts overwhelmingly won by Democrats, as many as 15 seats of the Republican 33-seat margin are traceable to the adroit drawing of congressional district lines to maximize Republican voting power. And 2012 wasn't an aberration. Using the criteria of the American Political Science Association, partisan gerrymandering
by both parties has resulted in a House of Representatives where only about 40 seats—fewer than 10 percent of the membership—are chosen in a genuinely contested general election. No wonder the House is so dysfunctional. Most members don't have to worry about being reelected. No wonder so many people don't bother to vote in midterm “elections.” They know almost all of the outcomes in advance.

Under the current equality-driven constitutional law of democracy, five members of the Supreme Court insist that there is nothing judges can do to prevent politicians from slicing and dicing the electoral map to ensure the reelection of incumbents, moving voters around like pawns on a chessboard to maximize the advantage of the party in power. In order to know whether political line drawing is unconstitutionally unequal, the majority justices argue, you need an objective baseline from which to measure whether the political gerrymander at issue deviates too far from representative fairness. The five Republican justices claim to be unable to find such a baseline.

The four Democratic justices argue that a fair baseline exists, but they can't agree on what it is. Several of them argue that a reviewing court could ask whether the statewide outcome of an allegedly gerrymandered legislative election roughly reflects the political preferences of the electorate measured by statewide pre-election party registration figures. If the deviation is too great—say, more than 10 or 15 percent—a court could order that the electoral lines be redrawn to more fairly reflect the political complexion of the electorate. The five Republican justices reject such a test, arguing that pre-election registration figures are an inadequate measurement of a postelection fair political outcome because the very essence of democratic politics is change. Alternatively, the Court could focus on particular districts and ask whether the only plausible explanation for the district's configuration is an effort to maximize the voting power of supporters of one political party. The Supreme Court majority rejects such a test because, in the Court's view, politics plays an inevitable and appropriate role in the
apportionment process (for example, ensuring minimal representation for long-established interest groups like farmers, industrial laborers, or adherents of a hopelessly outvoted major party), making it impossible to know when politics is exerting too much influence.

If we change the equality lens, though, and view massive political gerrymandering from the perspective of a democracy-friendly First Amendment, one thing jumps out of the fog of statistics and partisan blather. A successful partisan gerrymander almost always results in the minimization—often the elimination—of contestable legislative elections.
⁷
No savvy incumbent politician designs a district he can lose. No effective partisan gerrymander results in really close races that the party in power can actually lose. The whole purpose of the gerrymander is to rig the outcome of as many elections as possible by careful line drawing, packing your opponents into a few “landslide districts” where they'll win a few seats with 80 percent of the vote, but drawing the rest of the lines so that your supporters will win in a series of elections with just over the statistically safe registration edge of 55 percent to 45 percent. The measure of a successful gerrymander is its elimination of contestable elections and its assurance of a steady legislative majority for the party in power.

Witness what the Republicans have done in North Carolina. In 2012, the popular vote for House members in North Carolina was 51 percent Democratic to 49 percent Republican. But North Carolina's House delegation is nine Republicans and four Democrats because the Republican legislature drew district lines that packed the Democratic voters into four landslide districts, allowing Republicans to microconstruct nine noncontestable Republican districts. Not a single contestable election takes place in a closely divided state.

North Carolina isn't alone. Democrats also polled more than 50 percent of the House votes in Arizona, Michigan, Pennsylvania, and Wisconsin but failed to elect a majority of the House members in those states because of Republican line-drawing artistry. In the seven states most intensively gerrymandered by the Republicans,
in 2012 Republicans won the popular votes for the House with just over 50 percent but outelected the Democrats 73–34 with almost no contestable elections. By my calculations, if the gerrymandered lines stay where they are, Democrats would have to poll 58 percent of the national popular vote to win a one-vote majority in the House of Representatives in the 2014 elections.

Democracy is all about contestable elections. Not surprisingly, they're at the core of Madison's First Amendment. A genuinely free, contestable election is the defining event toward which each clause of the amendment converges. Contested elections permit citizens exercising free thought, speech, press, association, assembly, and petition to pass effective electoral judgment on the performance of their representatives. It is irrational to argue that every clause receives First Amendment protection on its own, but the point at which they all converge—a contestable election—is left unprotected, twisting slowly in the political wind. When, as in contemporary America, virtually all district lines are carefully drawn by partisan hands so that everyone knows in advance who will win, elections become a sham, rendering the antecedent protections of free thought, speech, press, collective action, and petition meaningless. The resulting governing process does not deserve to be called a democracy and could never be upheld under a First Amendment that recognizes Madison's music.

It would be easy for a Supreme Court capable of hearing Madison's music to supplement the equality-driven “one person, one vote” principle with a democracy-driven First Amendment protection of contested elections. The problem of identifying a fair representative baseline disappears. Even a Republican justice should be able to figure out that politicians have done away with contestable House elections in North Carolina.

Of course, given geographical concentrations of voters with similar political preferences (often in cities), genuinely contested elections may not be possible everywhere—unless we adopt proportional representation or experiment with democracy-friendly multimember or at-large districts. But the Supreme Court should
be able to apply a First Amendment rule that forbids systematic electoral line-drawing that purposefully eliminates contested legislative elections from the American democratic process. If elections were less predictable, maybe more people would vote. And maybe legislators would make better laws

BREAKING UP THE REPUBLICRAT CARTEL

The Supreme Court took a wrong turn in campaign finance law when it tore the Free Speech Clause from its democracy-centered First Amendment roots and misread it as a flat ban on regulating campaign spending. A narrow majority of the Court has gone even further afield in its misuse of a nontextual sliver of the First Amendment—freedom of association—to impose a Republicrat duopoly that allows major-party political bosses to snuff out intra-party insurgencies and prevent third-party challengers from threatening their hegemony.

As usual, the mistake was to tear a piece of the First Amendment from its democracy-reinforcing context and treat it as a freestanding command. Only this time, the rootless command isn't even a part of the text. It's the nontextual protection of freedom of association that was read into the text by Justice Harlan in 1958 in order to reinforce its democratic narrative. Justice Harlan was surely right in recognizing freedom of association as a nontextual First Amendment right. Freedom of association fits all the criteria for a proper application of the equity of the Bill of Rights under Madison's Ninth Amendment safety net. It is analogous to the textual right of free assembly, harmonious with the rest of the First Amendment's text, and crucial to the story of the evolution of a democratic idea that is the organizing principle of Madison's First Amendment. In 1958, protection of the NAACP against hostile attacks by Alabama was an essential democratic way station for the evolution of the luminous political idea that ended American apartheid—a way station that was not adequately protected by the textual protections of speech, press, or physical assembly.

Unfortunately, instead of deploying freedom of association in defense of robust democracy, the Court has used it as a device to frustrate efforts to broaden democracy. For example, the Court has refused to recognize voting and running for office as quintessential exercises of First Amendment political association, leaving both fundamental building blocks of self-government to fend for themselves in the rough and tumble of partisan politics, weakly protected by the Equal Protection Clause. To make matters worse, the Court has twisted associational freedom to treat the nominating procedures of the Republican and Democratic parties as hermetically sealed exercises of like-minded people, as though a small group of ideologically identical neighbors were meeting to choose a spokesman. While the two major parties do differ in philosophy and program, each is hardly a sealed group of like-minded citizens. Rather, as in any complex modern democracy using “first-past-the-post” elections in defined constituencies, the two parties function as competing coalitions of loosely connected interests, open to—indeed, eager for—outsiders who wish to affiliate, however loosely, in an effort to cobble together a winning electoral majority. The Court's erroneous fixation on the ideological boundaries of the major parties has caused it to block efforts to open their nominating processes to the entire electorate. When California opened them to the whole electorate, voter participation spiked by more than 10 percent, and moderates won a fair share of nominations. After the Court's majority had explained why letting outsiders help choose the nominees violates party members' free-association rights, participation in California primaries plummeted, and the extreme ideological wing of each major party retook control of the nominating process. In short, the Court has invoked freedom of association not to broaden democracy, but to turn too many primaries into playgrounds for extremists.