To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. 

Buckley v. Valeo, 424 U.S 1, 27.  

This was the magnitude of the conclusion that the Supreme Court drew about the prevalence or appearance of corruption when it upheld the contribution limitations of the Federal Election Campaign Act. The corruption problem was “not… illusory” but its scope could ‘never’ be pinned down.  The Court then cited to the decision of the court below that had offered a few example of pernicious behavior with campaign funds in the 1972 presidential election. That was enough.

In the years following, enough has not proven to be as good as a feast.  And in search of the feast, anyone with a point to make about the campaign finance laws has been pursuing conclusive data to support it.  Corruption, or the absence of corruption, or the different definitions and measures of corruption, have all occasioned argument about the evidence, as has the related but different project of proving the “appearance” of corruption.  Argument about the evidence has yet to be settled and there's every reason to believe that they never will be.

The related but still distinguishable argument about political inequality has meant the same search for clinching proof that policy follows money and makes for a “rigged” system.  This week, the Center for Competitive Politics took after a widely reported paper about the correlation between the aspirations of the wealthy and the manufacture of public policy.  Noting that Rick Hasen and Larry Lessig had made use of the paper in arguing for a political equality theory of regulation, the CCP cited to critics of the scholarship and its conclusions.  In this critical view, which CCP evidently favors, there is substantial agreement across income groups about policy.  So the study that purportedly shows that we have a democracy of the rich cannot survive close scrutiny. CCP suggests that this should bring sharply into question the “lofty solutions” of reformers.

The Court's decision in Evenwel could not have been clearer, and indeed it was unanimous, that the Constitution does not command the exclusion of nonvoters from the base used for state and local legislative redistricting.  It was a full defeat of the appellants.  But the Court did not address the question—even tip its hand—on the question of whether states might have discretion to choose between total and eligible voting populations.  Rick Pildes correctly writes that the “six-member majority went out of its way to make clear that the question remains fully open whether states might be required to use population, rather than eligible voters.”

The key parts of this judgment are “went out of its way” and “the question remains fully open.”  In fact, the Court was rigorously noncommittal on the issue of state discretion.

Rick Pildes, who attended the Evenwel argument, had these thoughts about one possible outcome that may be attractive to Justice Kennedy:

 So the Court will either affirm the status quo or adopt an intermediate position to which Justice Kennedy appears drawn.  That is the view that states have to at least consider voter equality as one factor to take into account.  He consistently returned to this question and it seemed his central instinct about the case….

If the Court holds that states have to take voter equality “into account” as “a factor,” what would that mean on the ground? …. But I think the most the Court would ultimately hold is that if states can do more to promote voter equality, while not allowing their districts to vary in total population by more than 10% and while not violating traditional districting principles, then within those constraints, states would need to avoid unnecessary departures from voter equality. 

In short: a compromise. The Court would not follow Burns v. Richardson, declining to choose between electoral and representational equality, and it would not make the choice. It would seek out a middle ground, captured in a nebulous legal standard, and decide this case in a way that invites more cases of the same kind. [Note: I am on the brief of the Democratic National Committee, which argues for the clear choice of representational equality and therefore a constitutionally required State use of total population in apportionment.]

Professor Michael Morley looks to campaign finance jurisprudence as a guide to what the Supreme Court might do in the Evenwel person-one vote case. He argues that the Court has spoken decisively to the question of whether of certain ineligible voters--foreign nationals—have a right to participate in democratic self-government.  In Bluman v. Federal Election Commission, a three-judge court decision that the Justices summarily affirmed, the court held that foreign nationals may be barred from spending money, through contributions or independent expenditures, to influence elections.  800 F. Supp. 2d 281 (2011).  It follows from that, Professor Morley concludes, that foreign nationals need not be included in the population count on which state legislative apportionment is based.

Morley's use of campaign finance law is intriguing, and he finds this perspective missing from all the briefs filed with the Court in Evenwel.  But he did miss one, the Democratic National Committee's, which explicitly questions how US citizens in eligible to vote could be excluded from apportionment arithmetic – – that is, read out of the formally represented political community – – while enjoying a constitutional right to contribute to the same candidates who are free to reject them as constituents. (Note: I am on the brief, with other Perkins colleagues).  This is the case of minor children, 17 years and younger.  In McCain-Feingold, Congress moved to prohibit minors from making contributions at all, only to be blocked by the Court in McConnell.  Now minors remain free to contribute as a constitutional right, provided that the contribution is made knowingly and with their own money. Should the Court conclude that states may disregard minor children for apportionment purposes, it will have drawn the unappetizing picture of a representative democracy in which these young citizens receive representation only for purchase.

Morley agrees that this is an untenable result, and he would locate the line there, at US citizenship, and let Bluman do the work of keeping out foreign nationals (other than lawful permanent residents).  The next question is whether campaign finance jurisprudence translates all that neatly, and as Morley presents it, into the apportionment context.

Strong critics of gerrymandering and other examples of political self-dealing can count an attentive audience—politicians using power to keep power, such as in drawing lines or raising money. There is no denying the legitimacy of the concern. But sometimes the attack can be taken up with zeal, and the proposed solution takes the form of aggressive constitutional innovation. The argument is made, and the Supreme Court is called on to agree, that regular constitutional process and ordinary politics must yield to extraordinary mechanisms installed in their place.

In the Arizona case, the Court ruled that legislatures could be ousted by initiative from the redistricting process  Arizona did not impose checks on legislative self-dealing; it relieved legislators of any role altogether. The Court had to know that it was sanctioning the substitution of one form of politics for another-- the politics of direct democracy for that of the legislative process. To accomplish the flip, it had to deify direct democracy, by referring to it as a conduit for the expression of the popular will, and to render so harsh a judgment on legislatures and their anti-democratic ways that legislators were disqualified from further participation in drawing district lines.

In choosing this direction, the Court appears to have bought into what John Sides and Eric McGhee refer to as the “zombie myths” about the grossly anti-competitive effects of this mode of political self-dealing. Because it was redressing what it takes to be a major evil, the majority could sanction drastic measures on an enterprising construction of the constitutional text, concluding that “legislature” meant no role for the legislature. In sum, the Court treated the case before it as presenting a major dysfunction of governing institutions, justifying an extraordinary response, and it acted accordingly.