an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In yesterday’s big campaign finance case, McCutcheon v. FEC, Chief Justice Roberts doubled down on a very narrow definition of corruption, one that calls most remaining campaign finance regulation into some doubt. That was the most important thing that happened in McCutcheon. However, the most interesting thing that happened in McCutcheon, to my eye, was something subtler, something having to do with the question in the title of this post. Near the start of his opinion, Chief Justice Roberts quoted Justice Kennedy’s opinion in Citizens United, which said that “Ingratiation and access . . . are not corruption.” From Kennedy’s original sentence, one might think “ingratiation and access” are a sort of minor nuisance, regrettable but inevitable and not enough of a problem to justify regulation that burdens people’s First Amendment rights. In McCutcheon the Chief expands on Kennedy, and takes the point in a new direction:
“Ingratiation and access . . . are not corruption.” They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns. (slip op. at p.2)
Later he builds on this point, after citing Edmund Burke:
Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. (p.39)
So here is the puzzle. Who exactly does Chief Justice Roberts have in mind when he says “constituents”? This is a legal case, so most obvious answer is the plaintiff, Shaun McCutcheon. After all, that’s whose rights the case is about.
But McCutcheon, like most donors, supports candidates in places other than where he lives. (Lots of places, in fact. That’s how he ran up against the aggregate contribution limits.) So when Chief Justice Roberts speaks favorably about “ingratiation and access” by campaign donors, calling it a “central feature of democracy” that “constituents” support candidates they agree with—and candidates ought in turn to be “cognizant of and responsive to” the concerns of such “constituents,” who is he talking about?
Cracks in the Standard Model of Constituency
The answer to the question in the title of this post might seem too obvious to be worth discussing. We all know who elected officials represent in a functioning democracy. The model is familiar and standard. In our geographically sprawling nation, every elected official save the President and Vice President represents a specific geographic area—a state, a congressional district, a city council district. Your constituents are the people who live within the area you represent. By “people” I mean “humans”—from the law of reapportionment we learn that constituents are humans, not “trees or acres.” These humans are your constituents whether or not they voted for you, whether or not they voted at all, and indeed whether or not they’re even eligible to vote. The baby born yesterday in your district, who may never live there as an adult, is one of your constituents. Your job includes representing him.
This standard model is clearly correct. And yet it doesn’t seem to be the whole truth, either empirically or normatively. Representation is multi-layered.
Suppose you are a black voter living in Houston, in a predominantly white district. Suppose race is highly politically salient. It’s not so crazy to think you might feel more “represented” by whoever was elected from the neighboring, majority-black district—the choice of people who are in some politically salient way like you. Or consider my city of Austin, Texas. It’s a city of about a million people, containing a supermajority of Democrats, the vast bulk of whom are represented in Congress by one of four Republicans they probably cannot name. None of these Republicans lives in Austin, none their districts is primarily in Austin, and none likely expects to win a lot of votes from Austin. Is it so crazy to think that perhaps a lot of Austin Democrats feel more “represented” by Lloyd Doggett (D-Interstate 35), the one member of Congress who actually lives in Austin, even though creative gerrymandering has left him with a district that includes only a sliver of the city? A student of mine who worked in Doggett’s office reports that, not surprisingly, they get a large volume of constituency services requests from Austinites who are not actually in Doggett’s district. Those constituents view Doggett as “representing” them. He doesn’t always return the favor: Often, and sometimes to the consternation of the person making the request, he redirects their queries to their official representatives’ offices. So to that degree, the standard model holds. However, anecdotal evidence suggests that Doggett actually does do some legislating that he views as serving the interests of the people of Austin, not just the people of his district. After all, he might reasonably say, who else is going to do it?
Campaign donations expose what is potentially a deeper crack in the standard model. Suppose I donate thousands of dollars in support of the campaign of someone who represents a district halfway across the country from where I live. Surely I have reason to feel that this person in some way “represents” my views. That’s likely why I donated—even if I expect nothing at all in return. My donation may have an expressive dimension. Or it may simply be a practical attempt to increase the chances that someone I like will win. In this story, I am giving to a candidate because I already feel, on some level, that the candidate represents me. I already feel like a constituent.
Or here’s an alternative story. Suppose I want “ingratiation and access”—something short of a quid pro quo favor. That is, suppose I want a sense that this official will act, to a degree, as my representative, aware of and responsive to my concerns. That is a perfectly common reason to donate. It’s one that Chief Justice Roberts appears to believe “embodies a central feature of democracy.” In this story, I’m giving in order to become, in some sense, a constituent of this elected official. I may not be a constituent on the standard model, but in a world where candidates need money, you bet I’m now part of this official’s effective constituency. That is what my donation buys. If I show up at this candidate’s office, I will get at least as much attention as a mere voter from the district, and perhaps a lot more.
In effect, an elected official represents multiple constituencies. She represents the community of people in her district; the community of political supporters who vote her into office; and the community of donors who fund her campaign. Sometimes there is a lot of overlap among these communities—under conditions of high turnout, lots of money raised locally, and so on. That keeps things simple. But other times, things come apart.
Imagine that I represent a district that is relatively poor; local donors are few. Suppose, by necessity, I develop a kind of political sideline as a representative friendly to a particular industry. I get hard-money donations from lots of people in that industry. Now suppose there’s a bill that will help the industry, but hurt my standard-model constituents, the actual people living in my district. Inevitably, I’m going to feel torn here. I’ll feel torn just as surely as in another familiar scenario, when lots of my voters stand firmly on one side of an issue and lots on the other. There’s no politically perfect answer. Suppose that in the end, this time, I go with the donors.
Justice Breyer, in his dissent in McCutcheon, calls this “corruption.” He says it’s corruption for a structural reason: it “can destroy the link between public opinion and governmental action.” (p.8). Another way to put this is that in the story I’ve just told, the elected official is serving the wrong constituents.
That is, my real job as a representative is to serve my standard-model constituents, the humans living in my district. If others want to support me because they like the way I do that job, great. But if I am actually substituting donor-constituents for the real constituents living in my district, then we have a problem. And Justice Breyer surely has a point that one good word to describe that problem is “corruption.” What is being corrupted here is the “link,” the alignment, between the elected official and her real constituents.
The Consociationalism of the Donor Class
Not all models of democracy involve single-member districts, where each constituent is in one and only one district, with one and only one representative. The great virtue of this model, as the Court itself has noted, is that you know who your representative is; you know who to call, and you know who to vote against if you don’t like how things are going. But the great drawback is that you’re stuck with your representative. If gerrymandering leaves you grouped with a bunch of people whose interests and issues are either inimical or irrelevant to your own, there’s nothing you can do but move.
It didn’t win Lani Guinier a lot of friends in the U.S. Senate, but some years ago she advanced a powerful set of arguments against this system of single-member districts—arguments that have if anything improved with age, as our system of gerrymandering has become ever more baroque. Why not, she asked, allow voters themselves to decide who best represents them? Have multiple representatives from a larger, multi-member district, and let voters use their votes to get behind whichever candidate they wish, instead of leaving it to the gerrymanderers.
Today, Congress continues to require states to elect Members from single-member districts. But a different kind of constituent—the campaign donor—can cross district lines, and even state lines, at will. Campaign donors have exactly the kind of freedom that Guinier proposed all voters ought to have. They do not need to affiliate with the representative who happens to be assigned to them. Instead they can be anyone’s constituent—if donation dollars make you a constituent. And all indications suggest that they do.
But there’s an obvious problem here. We give only donors, not voters, this freedom. And furthermore, unlike voters who can only vote once, donors can intervene in many different election contests—after McCutcheon, as many as they’d like. This means a class of wealthy donors may make up a very large share of every representative’s effective constituents.
Our campaign finance regime thus seems to produce a kind of consociational model, in which different constituencies all have a degree of representation. On this model, the donor class makes up perhaps the First and Second Estates; the common people, incapable of funding campaigns, are the Third Estate. Each has a degree of representation in this system; it would be wrong to say that representatives can completely ignore any in favor of the others.
The only problem is that the system I’ve just described is not a democracy at all—at least not by post-1789 standards. The consociationalism of the donor class is really just a form of what Justice Breyer calls corruption. We might even call it oligarchy. Democracy it isn’t.
Snatchers of the Body Politic
So what, exactly, does Chief Justice Roberts mean when he calls donors “constituents”? My guess is that it would be literally impossible for a single donor to obey the law on contribution limits yet run afoul of the aggregate donation limit when donating exclusively to local candidates, i.e. people who actually represent the donor as a constituent on the standard model. That is, the only kind of donations McCutcheon enables that were not already legal is long-distance donations, from people who on the standard model are not constituents.
Is Chief Justice Roberts under the false impression that most donors are in fact local donors, i.e. standard-model constituents? Or does the Chief Justice actually mean to embrace a kind of consociational model of democracy of the kind I’ve just sketched, in which donors are among the constituencies a representative serves? Does he have in mind a (completely unstated) two-step of an argument, in which, first, we need to protect donations from actual constituents—the local donors—and then second, we need to treat the other donors the same, because of additional, separate constitutional constraints rooted in either the First or Fourteenth Amendment? I find all of these answers completely implausible, and I’m left genuinely puzzled. I am leaning toward a fourth answer, which is that the Chief Justice sort of slipped, and allowed a major rhetorical pillar of his opinion to rest on the fiction that McCutcheon is, in some ambiguous sense, a constituent of all those to whom he donates.
And perhaps this slip is not so surprising. In the Appendix to Justice Breyer’s opinion, we can read many quotes from elected officials explaining how they feel beholden to donors, rather than voters, and why this matters. Senator David Boren explains, “It’s only natural, and happens all too often, that a busy Senator with 10 minutes to spare will spend those minutes returning the call of a large soft money donor rather than the call of any other constituent.” (p.36)
Any other constituent? How did that “large soft money donor” get to count as a “constituent” at all? Perhaps he or she just happened to be local. I doubt it. I think Senator Boren, instead, is doing exactly what the Chief Justice is doing.
Both of them, and all of us, live in a world in which Senators do in fact serve multiple masters—multiple constituencies. Some of those constituents are numerous and spelled out in the Constitution: they are “the People” the Senator represents. Other constituents, the donor class, are spelled out nowhere in the Constitution. They are, in that sense, foreign to our Constitutional structure. This is a form of official-constituent relationship that is an illicit rival to the one in our Constitution.
An awfully successful rival, it seems. As five Justices continue to grind campaign finance regulations through their First Amendment woodchipper, we may eventually be looking at a world in which our elected leaders’ real “constituents,” for most practical purposes, are not us. Calling donors “constituents” won’t seem like a slip. It’ll seem the most natural thing in the world. Posted
by Joseph Fishkin [link]