The argument over the constitutionality of the Arizona Independent Redistricting Commission can go the way of plain language debates, and it can also branch off into the question of whether it is good to have legislators function under the threat of initiative. A fine brief filed by Professor Nate Persily, on behalf of himself and eminent political scientists Bruce Cain and Bernard Grofman, takes on that question, among others, and answers it in the affirmative.
Under their theory, legislators who know that the public might act in their place may engage in constructive defensive maneuvers: they may make more of an effort to craft a redistricting map that is fair or not lopsidedly partisan. And even if the voters take this decision out of their hands, the lawmakers will be spared the bloody battles that are singularly damaging to legislators’ working relationships across-the-board.
On this view, initiatives like the one in Arizona can be defended as effective in structuring incentives for sound legislative decision-making or in protecting against the collapse of comity. But they can also draw the objection that the effect of these incentives is uncertain and that this uncertainty exacerbates constitutional concerns about the invasion of a legislature’s authority.
It has not been established that what lawmakers accomplish under threat will be superior to what they would produce without it—or, for that matter, will be at all desirable. And it is similarly unsure that if redistricting decisions are removed from legislators’ workload, they will get along and work together that much better in ways reflected in other, positive legislative deliberations and outcomes.
One answer to this question of uncertainty has been that extraordinary mechanisms are still justified where there has been a breakdown in the democratic process, or, in the popular formulation, where the candidates choose the voters rather than the other way around. But this view of what drives apportionment outcomes is by no means well settled. So, amid this uncertainty, the constitutional stakes rise that much higher when an initiative process is established to pressure a legislature to do its job better or lose it, but when it is far from clear how well it will perform under this threat or what can be expected from the independent commission that may be put in its place.
The goal of structuring incentives for desirable legislative behavior has driven other legislative experiments outside field of redistricting. The House of Representatives was pressured to establish an Office of Congressional Ethics to address widespread skepticism about the objectivity of the official House disciplinary process. The OCE membership is a sort of citizens’ panel, drawn from the private sector: none may be a sitting Member of Congress. The OCE can receive complaints from the public and initiate reviews of its own: it then refers its findings to the House Ethics Committee, and the House Committee must act in the light—and under the pressure of—public disclosure requirements that can reveal differences between the committees over the need for disciplinary action. On the House’s part, this was a significant ceding of its constitutional authority to control its internal disciplinary process.
Has this resulted in better House performance on these issues? It has certainly generated conflict between the House and the OCE, and whether it has improved the rules, their interpretation or their application is doubtful. It has certainly muddied the question of accountability for these choices, or even the judgment of which outcome in a particular case is the best one. OCE is “independent”, the House is ever suspected of protecting its own; and so clearly sorting out how cases are best decided becomes that much harder, because it is caught up in an oversimplified narrative about which committee can be trusted.
The two cases are different, of course, but the arguments in both instances are the similar: structural adjustments with constitutional implications are made to discipline legislative behavior by, as in the case of OCE, forcing a sharing of power or, as in the case of independent redistricting commission initiatives, threatening to limit this share. In both cases, it is unsure how well these incentives work or if they work well at all, but it somewhat clearer that they depend on mechanisms that are constitutionally controversial or, as some see it, worse.