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Election Reform and Democratic Objectives- Match or Mismatch?
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2 Election Reform and Democratic Objectives- Match or Mismatch? Stephen E. Gottlieb' I. AN EVALUATION OF DEMOCRATIC GOALS Discussion of campaign reform tends to center on specific proposals, often leaving goals implicit as if they are too obvious for discussion. However, the proposals often appear less important, contradictory, or perverse when the discussion centers on goals. This essay focuses on the goals of campaign reform. To demonstrate the significance of discussing campaign reform's objectives, this article will explore the often illusory relationship between election law reforms and their desired goals. Several related propositions will be developed. First, the process of reform is not an end in itself, an unevaluable taste. Rather, reforms Can be evaluated for their effectiveness in serving the public and for their responsiveness to ordinary people, the "little guys."' Second, it is not clear that purity in the electoral process creates anticipated, or even desired, results. For example, instead of leading toward the democratization of power, current reform efforts may actually lead away from it. Third, while there is a good deal still unknown about which democratic processes would work better, those which have been getting all the shouting-led by individuals with political careers at stake 2 -are clearly not superior. Enfranchisement of disenfranchised Americans and attention to competition would increase responsiveness much more directly. Although ensuring popular support of democracy is important, part H of this article demonstrates that popular support of electoral reform cannot be the only justification for change. Instead, as part III shows, modification of democratic processes must be directed toward specific goals, most importantly the achievement of rational popular choice and control. Although two popular reform agendas, developing a more competitive democratic process (part III.A) t Professor of Law, Albany Law School. B.A., Princeton University, 1962; LL.B., Yale Law School, Roman Hedges, friend, political scientist, and political player, has spent a good deal of time educating me. He, G. Bingham Powell, Jr., and Robert Nakamura read this article in draft form; I have benefitted greatly from their comments. Also, I would like to express my appreciation to Beverly Mitchell, a former student, who stimulated my thinking about aspects of the separation of powers considered in this essay, and to my research assistant, Suzanne M. Bernard, for indispensable help. 1. But see ROBERT WEISSBERG, PUBLIC OPINION AND POPULAR GOVERNMENT (1976), for a critical examination of the ambiguities of public opinion and the relationship between public opinion and public policy. 2. See Michael Oreskes & Robin Toner, A Swamp of Political Abuses Spurs Constituents of Change, N.Y. TIMES, Mar. 21, 1990, at Al, A22 (discussing different Republican and Democratic positions on campaign reform, partisan implications of different proposals).
3 Yale Law & Policy Review Vol. 9:205, 1991 and increasing the individualization of politics (part III.B) are often touted by reformers, neither can be substantially effective unless enfranchisement is increased (part III. C). A much neglected concern, the survival of a democratic form of self-government, must also be considered in order to ensure that today's reforms do not preclude democracy tomorrow. It is beyond the scope of this paper to develop a conclusive case for or against any specific remedy. Rather, this essay is designed to suggest that many of those discussions have been impoverished by the failure to examine what may or may not be accomplished. II. PUBLIC SUPPORT: AN INSUFFICIENT JUSTIFICATION FOR CAMPAIGN REFORM The Declaration of Independence announced that since government is founded on the consent of the governed, the people may alter the structure of their government. In America, the people have often altered the political rules. Examples include the secret and official (or "Australian") ballot and the primary process, 3 all initiated as the direct result of the Progressive movement; the anti-boss movement of the 1960s; and campaign finance reform, which was in large part a result of Watergate. 4 Although considerable public support for further altering the campaign process appears to exist, it is a non sequitur to conclude that the people are entitled to whatever electoral rules they want. 5 Rather, the adoption of political reforms, no matter how popular, must be tempered by the effect of those reforms on the present and future of the democratic system. 3. See JAMES CEASER, PRESIDENTIAL SELECTION (1979) (discussing Progressive proposals for primary reform); LARRY J. SABATO, THE PARTY'S JUST BEGUN (1988) (discussing impact of Australian secret ballot on American political parties). 4. FRANK J. SORAUF, MONEY IN AMERICAN ELECTIONS (1988) (recounting events leading to passage of Federal Election Campaign Act). 5. Anne H. Bedlington refers repeatedly to popular reaction to election rules and behavior. Nevertheless, she is careful to focus her proposals for greater restrictions on the private, nonpolitical use of political contributions and honoraria. This distinction implies that Professor Bedlington places limits on the public's rights. See Anne H. Bedlington, Abuses and Loopholes, in MONEY, ELECTIONS AND DEMOCRACY: REFORMING CONGRESSIONAL CAMPAIGN FINANCE, 69, 69-70, 73-74, (Margaret Latus Nugent & John R. Johannes eds., 1990) [hereinafter MONEY, ELECTIONS AND DEMOCRACY]. Frank J. Sorauf is less explicit, though more focused on the public. He effectively shatters the notion that there is clarity in what the people want, as well as the idea that there is a link between the appearance and the actual presence of corruption. Frank J. Sorauf, Public Opinion on Campaign Finance, in MONEY, ELECTIONS AND DEMOCRACY, supra, 207, [hereinafter Sorauf, Opinion]. Nevertheless, he ends by discussing the ability of the people to unite behind an effective package of campaign reform, id. at , and elsewhere has argued that democracy requires judicial (though not necessarily legislative) deference to the people's collective will, whether informed or not, as expressed in legislation. Frank J. Sorauf, Caught in a Political Thicket: The Supreme Court and Campaign Finance, 3 CONSTITUTIONAL COMMENTARY 97, 121 (1986) [hereinafter Sorauf, Thicket]. Thus, he has argued, campaign reform should proceed because of public demand. See also Johannes & Nugent, Conclusion: Reforms and Values, in MONEY, ELECTIONS AND DEMOCRACY, supra, 263, ; Nugent & Johannes, Introduction: What is at Stake?, in MONEY, ELECTIONS AND DEMOCRACY, supra, 1, 6.
4 Election Reform and Democratic Objectives Public approval of the specific rules of the political contest plays a role in overall public support for the political system, a role many refer to as legitimacy. 6 The proper role of legitimacy is sometimes expressed as how far the "political culture" justifies political rules. 7 Even the Supreme Court, in Buckley v. Valeo, 8 justified campaign finance regulation on the basis of popular reaction-much like a loose concept of legitimacy. 9 However, the Court quickly abandoned such a concept of legitimacy and rejected the relevance of polls. Although some campaign regulation clearly is warranted, public approval is not a sufficient justification. First, it is necessary to distinguish between rational choice and control (the goals of democracy) and public opinion (which may prove transient). From the perspective of the public (unlike that of a representative), justifying legislation by public opinion would be circular: the public should support legislation because it does. Second, even if the argument were stronger, public will is complicated by competing objectives-it is not plain that the public has clear conclusions on proposals for electoral reform. 0 It is even less clear that revolution or civil disobedience are near due to these issues." Indeed, the public often tolerates policies which run against its views; people do not view as illegitimate all which they oppose. 2 In fact, the people may quite consistently desire a government that will do better than a plebiscite See Nugent & Johannes, supra note 5, at 6 ("legitimacy [is] defined as the public's acceptance of the government"); Johannes & Nugent, supra note 5, at (proposing electoral reforms to enhance legitimacy of governmental system). 7. See NELSON W. POLSBY, CONSEQUENCES OF PARTY REFORM 185 (1983) (discussing how mixed nominating systems better express "varied political cultures" and therefore better educate prospective candidates) U.S. 1 (1976). 9. "It is unnecessary to look beyond the [Federal Election Campaign] Act's primary purpose-to limit the actuality and appearance of corruption resulting from large individual financial contributions-in order to find a constitutionally sufficient justification for the $1000 contribution limitation." Id. at On the public's opinion of campaign finance, see HERBERT E. ALEXANDER, WHITE PAPER ON PuBIC FUNDING OF POLITICAL CAMPAIGNS (1984); Sorauf, Thicket, supra note 5, at A major objective of the continuing dialogue between the public and its full time legislative body is to clarify issues that the public does not fully comprehend. 11. See Sorauf, Opinion, supra note 5, at , (public opinion on campaign finance is largely unorganized and unmobilized; it is thus not strong enough to affect legislatures on issues of campaign finance). 12. Historically the Constitution did not embody the "right" to instruct representatives how to vote in the legislature; many, however, continued to believe that representatives had a duty to obey constituents. Akhil Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Clu. L. REV. 1043, (1988) (discussing right of instruction; arguing that people retain right to replace or amend Constitution outside boundaries of Article V). 13. See DONALD S. LUTZ, POPULAR CONSENT AND POPULAR CONTROL (1980) (discussing different levels of consent to government employed in America's founding generation). See also THE FEDERALIST No. 10, at 82 (James Madison) (Clinton Rossiter ed., 1961) (A large republic would "refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.").
5 Yale Law & Policy Review Vol. 9:205, 1991 Third, understanding the purpose of election reform as satisfying popular demand tends to truncate analysis; we need only read polls. If we attempt to hypothesize the public purposes underlying popular support for election reforms, we are no longer serving public opinion. Current opinion cannot be allowed to end dialogue. The principal limitation on the public right to restructure the political process is the extent to which "jimmying" with the mechanics of political campaigns results in the disenfranchisement of other groups and coalitions, both now and in the future. 4 For example, restrictive ballot access requirements, which accompanied the introduction of pre-printed ballots, were designed to narrow the choices available on the ballot; they largely eliminated third parties.' A second political reform largely brought about by public will, direct primary elections, eroded party government and destroyed the traditional patterns of party accountability and responsibility. 6 If, as many political scientists argue, the result of these "reforms" has been to leave American politics more elitist and less faithful to majority will,' 7 then the loss of popular control undermines the claim that those reforms were properly carried out. Moreover, popular reforms can clash with the freedoms protected by the First Amendment. Thus, the First Amendment requires significant justification for damaging restrictions on speech, including advocacy in political campaigns.'" The First Amendment precludes restrictions on party endorse- 14. On contemporary equality, see Reynolds v. Sims, 377 U.S. 533, 566 (1964) (the equal protection clause requires substantially equal legislative representation for all citizens in a state, regardless of where they reside); Wesberry v. Sanders, 376 U.S. 1, 8 (1964) (one person, one vote); United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) ("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."). See also JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 4-5 (T. Pearson ed., 1952). 15. Stephen E. Gottlieb, Rebuilding the Right of Association: The Right to Hold a Convention as a Test Case, 11 HOFSTRA L. REV. 191, 230 (1982). 16. David P. Thelen, Two Traditions of Progressive Reform, Political Parties, and American Democracy, in THE AMERICAN CONSTITUTIONAL SYSTEM UNDER STRONG AND WEAK PARTIES 37, 52 (Patricia Bonomi et al. eds., 1981). 17. See infra text accompanying notes Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222 (1989) (strict scrutiny required where statute limited party right to support candidate in primary); Tashjian v. Republican Party of Conn., 479 U.S. 208, (1986) (restriction on "the 'basic function' of selecting the Party's candidates" and "the Party's associational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action and hence to political power in the community" requires that interests asserted justify the burden); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) (discussing effects on political system of restriction on rights to associate and to cast an effective ballot; requiring strict scrutiny); Buckley v. Valeo, 424 U.S. 1, 25 (1976) (right to association requires strict scrutiny since it is fundamental to a free society); American Party of Texas v. White, 415 U.S. 767, 780 & n.ll (1974) (in ballot access context, restriction of rights of political expression requires strict scrutiny); Williams v. Rhodes, 393 U.S. 23, 31 (1968) (same). But see Gottlieb, supra note 15, at (criticizing Buckley Court for failing to adhere to its own standard).
6 Election Reform and Democratic Objectives ment,' 9 denial of places on the ballot, 20 and maximum amounts that candidates might spend on their campaigns 21 because those measures have interfered with public discussion of issues of public concern. A final limitation on regulation, regardless of popularity, is posed by the impact it would have on the future of democracy. 22 Democratic theory does not give the people a right to sacrifice the power of self-government of future majorities and populations.' Thus, despite the simplicity of adopting the political reforms most favored by the public, other concerns must supplement the analysis. We must consider the effect those reforms will have on the present and the future. And, we must determine how those reforms will bring about the real goals of reform-the public's ability to choose its leaders and control its destiny. III. ACHIEVING THE GOALS OF CHOICE AND CONTROL Several assumptions underlie the argument made in these pages. First, a democratic process can be evaluated. 24 Second, the purpose of democratic reform is to augment rational public choice and popular control of government. Third, government must be responsive to ordinary people, not just to powerful elites.' Fourth, the role of the candidate is subsidiary to rational popular control. And, fifth, the requirement of equality-of the people as voters-is implicit in the definition and justification of democracy. The goals of political equality of the population and its increased choice and control, not the often errant prescriptions which aim to achieve them, must be constant throughout all reforms. All reform efforts must, therefore, be evaluated for how well they improve equality, rational choice, and control. 19. Eu, 489 U.S. 214 (1989). But see Renne v. Geary, 111 S.Ct. 2331, (1991) (Stevens, J., concurring) (arguing that Court properly did not reach constitutionality of nonpartisan rules because of difficulty of constitutional question). 20. Anderson v. Celebrezze, 460 U.S. 780 (1983) (mandating place on ballot for Anderson campaign). 21. Buckley, 424 U.S. 1 (1976). 22. See Stephen E. Gottlieb, The Dilemma of Election Campaign Finance Reform, 18 HOFSTRA L. REV. 213, (1989) (majority rule must be limited in order to pass on its values to succeeding generations). 23. For an extreme example, democracy cannot justify abandoning democracy to a dictator. See 1 GIOVANNI SARTORI, THE THEORY OF DEMOCRACY REVISITED 24-25, (1987) (discussing limitations on majority rule in favor of continued democratic governance); Carl Auerbach, The Communist Control Act of 1954: A Proposed Legal-Political Theory of Free Speech, 23 U. CHI. L. REV. 173, (1956) (justifying restriction of Communist Party on assumption it pursued anti-democratic goals). 24. See Gottlieb, supra note 22, at (discussing formal model of democracy). 25. See James G. March, Preferences, Power, and Democracy, in POWER, INEQUALITY, AND DEMOCRATIC POLITICs 50 (Ian Shapiro & Grant Reeher eds., 1988) ("Political equality among an appropriately inclusive set of citizens is a necessary, though not sufficient, condition for democracy."); Jack H. Nagel, The Marriage of Normative Values and Empirical Concepts: Mutual Integrity or Reciprocal Distortion?, in POWER, INEQUALITY, AND DEMOCRATIC POLITICS, supra, 73, 75 (arguing for "the ability of citizens acting collectively to control outcomes" as well as an approximation to equality of individual power).
8 Election Reform and Democratic Objectives were elected to do. Finally, they presuppose equality among the members of the body politic appropriate to a democracy rather than an oligarchy. 28 The Committee report assumed an efficient campaign with parties simplifying and organizing the voters' choices and delivering programs after the election. 29 Party campaigns would provide economies of scale. They would allow issue discussions sufficiently salient that people could reasonably consider the options. Party organizations dedicated to party platforms would also police the results and demand the obedience of elected party members. 30 For the Committee, political parties were not an impediment to popular will, but a guarantor of it; candidates would not be entirely independent and the voters could count on it. The Committee also focused on the judgment of the electorate." 1 It was less concerned with fairness to candidates than with the presentation of their positions to the electorate. That objective embodies a definition of equality-the significant form of equality is among voters. Finally, and most importantly, the Committee sought effective government. 32 The advantage of parties was that they could govern. In turn the ability to govern made choice more rational. The objective was not a plebiscite; rather, it was action, and parties were the bodies able to deliver that action. Thus, the APSA Committee called for strengthening the American twoparty system. To do that, the Committee, among other things, urged expanding the primary system, opening party councils to a representative cross section of its constituency, and instituting party committees to steer party policy and platforms." Subsequent events have revealed the enormous ambiguity in strategies implied by the Committee's democratic goals. 4 Some of the Committee's recommendations clashed with their own objectives, and some of their prescriptions were championed by reformers who did not share the Committee's competitive party strategy. The results of their prescriptions have been equally ambiguous. Some of the proposals-principally the call for an expanded primary system-appear to have undermined the strategy. Moreover, the 28. Id. at 1-2. The Committee's commitment to equality is explicit in its prescriptions for voting. Id. at 30, Id. at 1-2 (the parties develop, define, and present policy alternatives prior to election, elected party must carry them out). 30. Id. at 2 (discussing party discipline). 31. Id. at 1-2, 15 (discussing role of political parties in public policy). 32. Id. at 16-17, Id. at 5-11 (suggesting proposals for party responsibility). 34. The taxonomy developed focuses on the perspective of voters. For a more complete taxonomy of positions developed from the perspective of political actors, see Robert T. Nakamura & Denis G. Sullivan, Party Democracy and Democratic Control, in AMERICAN POLITICS AND PUBLIC POLICY 26 (Walter Dean Burnham & Martha Wagner Weinberg eds., 1978).
10 Election Reform and Democratic Objectives Committee's competitive pro-party strategy has not been implemented, much less tested; it differs significantly from current reform proposals. Heirs of the Committee, observing the unintended consequences of the Committee's prescriptions, retained the goal of strengthening parties as the means to rational control, and developed a new set of prescriptions to accomplish it. The Committee's view is currently reflected, for example, in calls for channelling campaign funds through parties 4 1 (even though that proposal is questionable for First Amendment reasons 42 ). The Committee view is also reflected in efforts to expand party decisionmaking autonomy, 43 to improve political competition (for instance, through public funding, which would "level up" less well-funded candidates"), and to restore two-party competition through more effective court restraints on gerrymandering Is competition enough? As developed by the APSA Report, a strategy focusing on voter equality suggests efforts to develop a competitive process; significant opposition permits real choice.' Competition must be the central value of election law. 47 Although competition is not a fundamental democratic goal, it is a necessary means for achieving the objectives of choice and control. 4 " Without competition, no other values can be achieved. The importance of competition leads to two crucial observations. First, competition is poorly implemented in present election law. Achieving competition requires public funding, tighter restrictions on political gerrymandering, 41. One of the early calls for revision of the federal campaign finance laws to strengthen parties is in INSTITUTE OF POLITICS, HARVARD UNIVERSITY, AN ANALYSIS OF THE IMPACT OF THE FEDERAL ELECTION CAMPAIGN ACT, , preparedfor House Committee on House Administration, 96th Cong., 1st Sess. vii-viii (Comm. Print 1975). 42. In modem doctrinal terms, there is a significant breach of the obligation of official neutrality toward competing speakers in either favoring or curtailing parties as channels of public sentiment and support. See Police Dep't of Chicago v. Mosley, 408 U.S. 92, (1972). The neutrality requirement has been widely discussed. My criticism of the doctrine as insufficient is in Stephen E. Gottlieb, The Speech Clause and the Limits of Neutrality, 51 ALB. L. REV. 19 (1986). 43. See Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989) (primary endorsement is a constitutionally protected internal party function); Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) (state may not constitutionally substitute its judgment for that of party by instituting a closed primary system). 44. See Joel L. Fleishman & Pope McCorkle, Level-Up Rather than Level-Down: Towards a New Theory of Campaign Finance Reform, 1 J.L. & POL. 211 (1984). 45. See Stephen E. Gottlieb, Fashioning A Test for Gerrymandering, 15 J. OF LEGIS. 1 (1988) (discussing definition of gerrymandering). 46. Choice can be reflected proportionally, nationally, or in each district. The principal means for encouraging choices are consistent with each of those models. 47. See Nugent & Johannes, supra note 5, at 12 ("[Glenuine competition seems to be the best guarantee that citizens are actually able to control their government."). 48. Election law is rife with examples of rules protecting incumbents and the two major parties. See, e.g., Davis v. Bandemer, 478 U.S. 109, (1986) (gerrymandering "determine[s] the political complexion of the area") (quoting Gaffney v. Cummings, 412 U.S. 735, 753 (1972)); Mandel v. Bradley, 432 U.S. 173, (1977); Williams v. Rhodes, 393 U.S. 23 (1968) (ballot access restrictions eliminated minor parties). But see Davis, 478 U.S. at (Court will vacate gerrymandering only if it is so strong that it cannot be overcome for the foreseeable future). Compare GARY C. JACOBSON, MONEY IN CONGRES- SIONAL ELECTIONS 157, 194 (1980) (FECA protects incumbents) with Buckley v. Valeo, 424 U.S. 1, 32, 33 n.38 (denying that campaign finance restrictions protect incumbents).
12 Election Reform and Democratic Objectives presidential process. Political scientists have repeatedly reported on the difficulties in getting the public to identify issues involved in a campaign, let alone to. make reasonable choices. 2 Even where these issues are sufficiently communicated to the public, it is clear that the public is often unable to respond at a level more rational than a response to symbols. Few campaigns, particularly congressional campaigns, advance beyond this symbolic level. Second, competition will not produce virtue, sacrifice, or caring among the electorate or the elected. To the extent reformers seek to improve the electorate, they must look beyond the campaign. For example, by creating ties among the population, education, national service, and war are more effective at changing the political will. 53 Moreover, public training, values, and experience place strong limits on the political process. Those who wish to reform the aims of the process cannot leave the public-or certain portions of the public 54 -out of consideration. Third, there are trade-offs. The congressional election campaign process was probably much more issue-oriented-and to that degree more rationalwhen it was a party process. Congress used to change hands before the recent surges of campaign reform eliminated most of the remaining nominating conventions. Prior to 1960, Republicans and Democrats each were able to dominate both the executive and the legislative branch by turns. 55 Perhaps representatives devoted more time to legislation, but the process produced a number of less competent people. The current primary process, with mandatory separation of individual and party financing in the campaigns, may produce better people, but it is dominated by public relations, swamps representatives in a constant bid for reelection, and weakens Congress as a manageable entity. 5 6 There is no free lunch. 3. The need to reinvigorate parties. Parties have, in the past, been a major engine of competition in American politics. Nevertheless, many political reforms have presupposed that the parties, when stronger, ignore their constituents, 5 " become far too self-protective, avoid issues in pursuit of victory, and 52. The data is summarized in Gottlieb, supra note 22, at 246 n.193, , See Stephen E. Gottlieb, Election Law and Election Reform: Strategy for the Long Run, 79 W. VA. L. REv. 237, (1977) (discussing legislation which affects people's emotional reactions to politics). 54. See infra part III.C. 55. See Bernard A. Weisberger, Keeping the Political Score, 42 AM. HERrrAGE (Feb./Mar. 1991) (noting frequency of presidential and legislative turnover as well as control of both branches by same party). 56. See Steven J. Brains et al., Presidential Power: A Game-Theoretic Analysis, in THE PRESIDENCY IN AMERICAN POLITICS (Paul Brace et al. eds., 1989) (comparing relative power of presidency and two houses of Congress). 57. If strong parties did ignore their constituents, then the debate over parties-at least insofar as it refers to the two major parties-may be irrelevant to improving representation of the public. However, the weight of current scholarship seems to indicate otherwise and strongly advocates the pro-party position.
13 Yale Law & Policy Review Vol. 9:205, 1991 hide private manipulations that serve the party professionals at the expense of the electorate." 5 Despite the commonly held view that parties are undemocratic, there are reasons to believe that the parties were stripped of power in part because they appeared to represent the lower classes too well. 9 Thus, parties arguably democratize politics;60 strengthen the parties and you will strengthen the average American. One reform which has greatly weakened parties is the expansion of the primary. Primaries in the period of the Committee Report were advocated both by those who wanted to strengthen parties and by those who sought to weaken them. Their common objective was to take power away from the political bosses and to reduce the corruption of the partisan process. 6 ' Although it is not clear that replacing conventions with primaries had much to do with reducing corruption or bossism-most political scientists believe that the welfare state, coupled with World War II and the GI bill, ended most of the boss-driven machines and irrevocably changed American party organization 6 -primaries 2 greatly affected the party structure of American politics. See APSA COMMITTEE REPORT, supra note 26; CEASER, supra note 3 (criticizing candidate-oriented or plebiscitary system and suggesting ways to strengthen political parties); V.0. KEY, JR., SOUTHERN STATE POLITICS (1949) (showing that reliance on one party led to the atrophy of party organization and undercut the honesty, representativeness, and value of the political process to the people of the southern states); POLSBY, supra note 7 (defending role of American state parties); SABATO, supra note 3 (suggesting deregulation of parties). 58. See WILLIAM CROTTY, THE PARTY GAME (1985) (criticizing romantic view of parties as they existed from New Deal through the 1960s); Gottlieb, supra note 15, at , (discussing impact of corruption on political process). See also WILLIAM L. RIORDON, PLUNKITT OF TAMMANY HALL (1948) (analyzing Tammany organization through observations of a leader); FRANK S. ROBINSON, MACHINE POLITICS (1977) (describing history of political machine in Albany, N.Y.); ALFRED STEINBERG, THE BOSSES (1972) (following careers of six powerful and corrupt political bosses during 1920s and 1930s). 59. See FRANCES Fox PIVEN & RICHARD A. CLOWARD, WHY AMERICANS DON'T VOTE 3-25 (1988); Walter Dean Burnham, The Class Gap, NEW REPUBLIC 30, (May 9, 1988) (reviewing PIVEN & CLOWARD, supra); Thomas Byrne Edsall, The Return of Inequality, ATLANTIC MONTHLY 86, (June 1988); Thelen, supra note See CEASER, supra note 3, at (criticizing view that more closed parties are "fundamentally undemocratic"). 61. Since the 1950 APSA Committee Report, both the spread of primaries and the FECA reforms have weakened the parties. For a discussion of the impact of primary reform, see infra text accompanying notes 63 to 66. Limitations on campaign contributions and expenditures have also severely restricted the role of parties in the electoral process. For a full discussion of the FECA impact on American political associations, see Stephen E. Gottlieb, Fleshing Out the Right of Association: The Problem of the Contribution Limits of the Federal Election Campaign Act, 49 ALB. L. REV. 825 (1985). 62. For a discussion of the evidence and a redefinition of the concept of a political machine, see generally SAMUEL J. ELDERSVELD, POLITICAL PARTIES IN AMERICAN SOCIETY (1982). Corrupt machines persisted long after the first wave of primaries were instituted near the turn of the century, and even dominated the primaries for a considerable period. Such machines have been at least as strong among the personal organizations that dominated one-party states as among the territorial organizations in two-party states. See KEY, supra note 57, at 11-12, 62-69, 162, , , 407, (describing misuse of party process in one-party states). The probity of the political system appears to have improved substantially before the most recent great wave of primary reform and little, if at all, after. Sorauf points out that the effect of campaign disclosure rules has been to increase the perception that politics is crooked. Sorauf, Thicket, supra note 5, at , 117, 118.
14 Election Reform and Democratic Objectives Primaries skewed the parties toward the extremes,63 eliminated the "ticket" system, moved the parties closer to the upper middle class and further from the views of blue collar workers," led to the withering of whichever party functioned as the opposition party in large sections of the country, and contributed to the decline of organized party leadership. 65 Thus, even though the relevance of parties has often been questioned, political scientists continue to call for the return and strengthening of the party system in order to return the power to the people." The history of parties is inconsistent; sometimes they have seemed important, at other times irrelevant. Professional commentary often seems to assume that the people's view of party relevance is beside the point-that analysts can show statistically and scientifically whether parties are good or bad." In reality, they need not be either. Who or what is helpful may depend on which persons or institutions are addressing concerns in a valuable way. The desire to impose a permanent structure on American politics ignores this variability. Reversing the decline of parties won't necessarily restore parties as they were or restore popular sovereignty. A much more valuable approach would be one which allows the public to put its faith in parties only when it believes such faith to be appropriate. This kind of approach to parties, however, has 63. Primaries promoted extremes through turnout. See V.0. KEY, JR., AMERICAN STATE POLITICS (1956) (describing tendency of party leadership and candidates to become less representative of their constituency as a whole due to unrepresentative primary voter turnout). For the mathematics of divided electorates, see STEVEN J. BRAMs, THE PRESIDENTIAL ELECTION GAME (1978) (illustratingsqueezing out of moderates by left and right through primary process; even if everyone turned out, both primaries would still fail to represent the general election constituency); Peter H. Aranson & Peter C. Ordeshook, Spatial Straegies for Sequential Elections, in PROBABILITY MODELS OF COLLECTIVE DECISION MAKING (Richard G. Niemi & Herbert F. Weisberg eds., 1972). 64. See WILLIAM J. CROTTY, PATHS TO POLITICAL REFORM 67, 77-81, (1980) (discussing consistent decrease in American voter participation; fact that nonvoters tend to be less educated or wealthy); KEY, supra note 63, at 166; PIVEN & CLOWARD, supra note 59; SORAUF, supra note 4, at 48 (charting differences among adults, party activists, and contributors in 1984). Differences among participants have been studied extensively in the context of primaries, caucuses, and conventions. See JUDITH H. PARRIS, THE CONVENTION PROBLEM: ISSUES IN REFORM OF PRESIDENTIAL NOMINATING PROCEDURES (1972); Thomas R. Marshall, Caucuses and Primaries, 7 AM. POL. Q. 155, (1979) (comparing participants in primaries and caucuses). But see Austin Ranney, The PrepresentativenessofPrimary Electorates, 12 MIDWEST J. POL. SCI. 224 (1968) (primary votes not significantly unrepresentative of general party members); Austin Ranney & Leon D. Epstein, The Two Electorates: Voters and Non-Voters in a Wisconsin Primary, 28 J. OF POL. 598 (1966) (primary voters are generally similar to primary non-voters). 65. KEY, supra note 63, at (discussing atrophy of party organization). 66. A distinguished group of political scientists has formed the Committee for Party Renewal, publisher of the Parry Line. The avowed purpose of the organization and the paper is to strengthen the party system in the United States. See, e.g., CPR Statement on Strengthening the Congressional Parties, PARTY LINE 4 (Winter 1987). 67. See APSA COMMITTEE REPORT, supra note 26, at 3-4 (arguing for the superiority of a stronger model of parties on the basis of the then-current scientific understanding); JEANNE KIRKPATRICK, DISMAN- TLING THE PARTIES 5 (1978) (describing the importance of parties in performing critical electoral functions); POLSBY, supra note 7, at 182 (describing parties as essential in the nomination process because of their functions of mobilizing voters, recruiting candidates, and sponsoring campaigns). But see CEASER, supra note 3, at 235 (arguing for the generic superiority of parties but considering citizen reactions to parties); SABATO, supra note 3, at (illustrating citizen attitudes about political parties).
15 Yale Law & Policy Review Vol. 9:205, 1991 rarely been part of the party debate. 6 It could be implemented by allowing the parties a greater role in campaign finance (for instance, by loosening the current restrictions on contributions and- expenditures to and by parties), providing for greater autonomy in choosing candidates (by allowing parties to nominate by convention and support candidates in primaries), 69 controlling gerrymandering, and improving the ease of ballot access for third parties. 7 " These approaches to campaign finance contrast with both existing rules, which restrict the funds that can be channeled to or from the party for individual campaigns, and proposed rules, which envision directing campaign funds to the parties. Moreover, they do not presently appear to have a constituency in the legislatures or in the courts. Decisionmaking autonomy has a stronger constituency among the parties and the courts, although the Supreme Court may have drawn the line at conventions The First Amendment. In the pursuit of competition, it is important to consider the First Amendment. The diminished regulation stressed above is, of course, quite consistent with the First Amendment, which requires that laws be neutral among views, speakers, and chosen media or associations unless pressing justification is present. 72 The Supreme Court need not and should not choose to stress the person, as modern campaign finance reform has done; the party, the issue, and the ability to govern, as the Committee wished; or something else. However, the Court has wavered. Its rulings on campaign finance have largely ignored the significance of the party, focusing instead on the power of individual contributors. 7 " Similarly, its rulings on gerrymandering have shown great reluctance to take account of the political divisions in the electorate. 74 In some decisions, the Court has struck down patronage systems that once formed the backbone of American political parties. 7 " By 68. But see CROTTY, supra note 58; SABATO, supra note 3, at 204 (1988) (urging greater party autonomy and freedom from inappropriate state regulation); Gottlieb, supra note 22, at (arguing that both strong and weak party solutions are appropriate solutions to different political problems). 69. For an argument about the right to nominate by convention, see Gottlieb, supra note See Mandel v. Bradley, 432 U.S. 173, (1977) (per curiam) (setting standards for third party access). 71. See Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, (1989); Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986). 72. See generally Gottlieb, supra note 22, at But see Rust v. Sullivan, 111 S. Ct (1991); Leathers v. Medlock, 111 S. Ct (1991). 73. See Buckley v. Valeo, 424 U.S. 1, 21 (1976) ("A limitation on the amount of money a person may give to a candidate... involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe on the contributor's freedom to discuss candidates and issues."). See also Gottlieb, supra note 15, at (discussing Supreme Court's "individualist philosophy of politics"). 74. See infra note See Branti v. Finkel, 445 U.S. 507 (1980) (First and Fourteenth Amendments protect assistant public defenders from discharge solely because of political beliefs); Elrod v. Burns, 427 U.S. 347 (1976) (practice of patronage dismissals severely restricts political beliefs and association, violating First and Fourteenth Amendments).
17 Yale Law & Policy Review That approach would not require the people to bypass parties, although it would permit them to do so. Parties in fact have been both advantaged and disadvantaged by the way elections are run. Parties, and only parties, gain lines and organization on the ballot even while their internal decision-making has been taken over by state mandated primaries." A more evenhanded approach to ballot language and definition as well as other aspects of campaign law is possible so that the people have options-to use parties to the fullest or to abandon them without the special incentive of the law. 4 Additional means f empowering-without restricting-the electorate focus on districting that creates competition, and judicial strengthening of Congress. 5 B. Option 2: Increasing the Individualization of Politics Vol. 9:205, 1991 A second strategy for election reform is to place emphasis on individual candidates and campaigns; examples include the long ballot and the Federal Election Campaign Act. Reforms such as these often are intended to ensure purity in the behavior of political candidates. However, this goal has only a tenuous relationship with the true goal of election reform, the democratization of power. In fact, purity and individualization are not themselves adequate justification for political reform. Rather, they, too, must be justified. Such justification may not be forthcoming. 1. The long ballot. The post-world War II battle against the political machines spawned a reform movement that attempted to restrain the power of the organization. At the same time the civil rights and women's rights struggles led to an understanding of politics that looked past the organization to its constituencies, resulting in formulas that defined representation by ascribed and inherited characteristics rather than party position. And the Vietnam War, by splitting the public on non-party lines, further reduced the already waning strength of party organizations. In the wake of those movements, the Committee's pro-party prescriptions were adopted by anti-party reformers seeking the same underlying goals: rationality and control. For instance, primary elections, organized around the competition of individual candidates, were extended to the point that few conventions retain any power over nominations. 6 Primaries now function as 83. See Gottlieb, supra note 15, at 237 (discussing exclusion of factional names, listing states which place or permit names of party factions on primary ballot). 84. See Gottlieb, supra note 15, at 245 (discussing possibility of including factional names on ballot). 85. See Kate Stith, Congress' Power of the Purse, 97 YALE L.J (1988). But see Bowshar v. Synar, 478 U.S. 714, 726 (1986) ("Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment."); INS v. Chadha, 462 U.S. 919 (1983) (striking down one-house veto power as unconstitutional). 86. See CEASER, supra note 3, at (describing triumph of "candidate supremacy"); Gottlieb, supra note 15, at & n.248 (cataloguing use of direct primary).
18 Election Reform and Democratic Objectives the first ballot in a two-stage election in which virtually all campaign organizations are based on individual personal organizations. This emphasis on individual candidates and campaigns has been based on a competing route to rationality and control-essentially, the long ballot. Primaries, it is assumed, allow the people to exercise direct control through "direct" nominating primaries rather than indirect primaries for party office. 8 7 Like the primary nomination rules, campaign finance legislation 8 has sought a route to direct popular control by attempting to exclude the parties and other middle men. For example, the Federal Election Campaign Act routes contributions directly to candidate organizations and limits the role of parties in the funding of campaigns.9 In addition, some states even prohibit the parties from taking any role in the primary nomination and reserve party intervention for the general election." This focus on the people elected, rather than on their political organizations, has been based in part on two assumptions: that democracy is best run by good people and that institutional ties are inherently unequal. In effect, competition in the general election has been secondary to the elimination of bonds that would affect candidates' judgment. In other words, the focus has been largely on candidate purity, defined as freedom from entangling alliances. 9 1 However, the ultimate goal of candidate freedom is uncertain. For some, good representatives should be responsive to the electorate. 92 For others, good representatives are independent and thoughtful agents who do what appears correct in their opinion, not the public's opinion. (The latter may be a particularly appropriate choice for voters who think of themselves as apolitical-it 87. See CEASER, supra note 3, at (discussing origins of modem party primary reform movement, its relationship to efforts to democratize parties); Gottlieb, supra note 15, at When Congress began to consider campaign finance reform in the 1970s, the movement became entangled with the political goals of incumbents for whom parties and all political power represented a threat. Members of Congress sought to attack the amounts that could be raised and spent to defeat them. The Court invalidated direct expenditure limits but sustained contribution limits which advance both incumbent goals, by limiting the funds that could be marshalled against them, and reform goals, by limiting the influence that flows from large contributions. Buckley v. Valeo, 424 U.S. 1 (1976). The latter necessarily has functioned as the justification for campaign finance reform. 89. For a description of the relation of the several portions of the act and regulations to produce this result, see Gottlieb, supra note 61, at 839 n See Gottlieb, supra note 15, at 235 (listing provisions limiting party support for candidates during primary campaign). But see Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989) (overturning restrictions on party endorsements during primary campaign). 91. See BROOKS JACKSON, HONEST GRAFT: BIG MONEY AND THE AMERICAN POLITICAL PROCESS 295, 301 (1988) (expressing aversion to "special interests;" proposing system which would support parties); William Crotty, In Favor of the Status Quo, in PRESIDENTIAL SELECTION 15 (Franklin J. Havelik ed., 1981) (concluding primaries improve participation, open primaries advance consensus politics); Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. REV. 784, , (1985) (describing "Burkean" approach to campaign purity; offering definition only slightly more tolerant of alliances). 92. Not because of organization but presumably because they would want to be responsive.
19 Yale Law & Policy Review Vol. 9:205, 1991 allows delegation rather than choice.) 93 In either case, purity cannot be the objective; rather, it can only be a means toward the deeper objectives of democratic self-government-i.e., choice and control. 94 The strategy may surrender some electoral control in return for post election fidelity to duty. Proposals in the current Congress, which attempt to fine-tune rules which structure the campaign as a contest between individuals," are most consistent with this approach. Further restraints on PACs and out-of-state contributions would reduce the role of noncandidate organizations in politics. Reduced postage and broadcast rates reflect the burdens and uncertainties of incumbents campaigning as individuals against opposition of widely varying strength and would be much less important in campaigns dominated by national parties. 96 Limiting the number of terms a representative may serve appears to stem from a desire for new-i.e., individual-blood (although increased party and/or executive power is likely to be the (unintended) result). 2. Limits on campaign financing. Accompanying the individualizing reforms has been a demand for greater equality," a value that is often left undefined. One implicit definition of equality is an equality of inputs-everyone should be able to make the same inputs into the political system. The reform agenda of the past three decades has focused on an equal playing field for activists and candidates, rather than an equal presentation to voters. As a result, the focus has been on the fairness of the nominating process, not the general election. Under this approach, contributors should be limited to sums within common reach. 9 Candidates should have direct access to the public without the burdens of party attachments. 99 Candidates should make attachments only to their own independent judgment (and possibly to their districts). Such a definition of equality is purely formal; democracy does require equality, but it requires the equality of citizens who act within the decision- 93. Sorauf argued that contributors to noncandidate PACs are delegating judgment in that manner. SORAuF, supra note 4, at 51. But see Roman B. Hedges, Reasons for Political Involvement: A Study of Contributors to the 1972 Presidential Campaign, 37 WESTERN POL. Q. 257 (1984); Lynda Watts Powell et al., Male and Female Differences in Elite Political Participation: An Examination of the Effects of Socioeconomic and Familial Variables, 34 WESTERN POL. Q. 31 (1981); Lynda Watts Powell et al., Belief Structure in a Political Elite: Contributors to the 1972 Presidential Candidates, 13 POLITY 134 (1980); Lynda Watts Powell et al., Modes of Elite Political Participation: Contributors to the 1972 Presidential Candidates, 24 AM. J. OF POL. Scl. 259 (1980) (arguing contributors are deeply involved in politics on many dimensions). 94. See Gottlieb, supra note 22, at For a description of current proposals, see Adam Clymer, Campaign Finance Rules May Take Two Routes, N.Y. TIMES, Feb. 10, 1991, 1, at 25; Comments Sought on Revision of Matching Fund Regulations, 2 Fed. Election Camp. Fin. Guide (CCH) Compare Weisberger, supra note 55 (on party campaigns) with proposals to protect against negative and privately financed campaigns or the imposition of total limits. 97. See, e.g., Candice J. Nelson, Loose Canons: Independent Expenditures, in MONEY, ELECTIONS AND DEMOCRACY, supra note 5, 47, 59, (describing concern that independent expenditures threaten equality and "level playing field"). 98. See 2 U.S.C. 441a (1988). 99. See CEASER, supra note 3.
20 Election Reform and Democratic Objectives making public. Thus, a second-and connected-definition of equality looks to voter equality on the basis of the factual hypothesis that equal inputs will assure the equality of voters. This second version of equality is achievable only if equal inputs equalize the competitors, or if candidates; once elected, are faithful to the public interest. Again, one must not be lured by the illusory goal of candidate purity. For instance, it is assumed that limitations on contributions and expenditures will equalize the candidates' ability to appeal to the voters and therefore equalize the voters' impact on the election. It is also assumed that restrictions will maximize fidelity to the public interest. Both of these assumptions, however, should be questioned. Regarding the first assumption, there is no good evidence that campaign finance restrictions have contributed to equalizing campaigns or have promoted competition. In addition, there is good reason to fear that campaign finance restrictions have caused harm. It is not self-evident that limitations on contributions result in equality among voters. t 0 First, without public funding, contributor restrictions prevent some candidates from obtaining a bare minimum of funds, much less from matching their opponents' "war chests." Thus, to the extent that campaigning requires a minimum of funding, even many major party general election nominees will not prove competitive. Second, equal contributor restrictions seem to assume that there must be a direct relationship between the number of supporters and the number of contributors, as well as between the number of contributors and the size of their contributions. Only if we assume that contributors and contributor wealth are evenly distributed among the supporters of competing parties and candidates do restrictions ensure equality. Once this assumption is rejected, it is not clear which group of voters is more injured by restrictions on their contributors. As several political scientists have pointed out, the parties have not been equally dependent on large contributors and the dependence may increase with the number of low-income supporters. t ' Thus, instead of benefitting voters of low and moderate income, restrictions may cut them off disproportionately from their sources of funds 12 and drive 100. See Gottlieb, supra note 22, at , 281 n.375. But cf Gary C. Jacobson, Campaign Finance and Democratic Control: Comments on Gottlieb and Lowenstein's Papers, 18 HOFSTRA L. REV. 369, (1989) Democrats, possibly due to their larger share of low income voters, have been more dependent on large contributions. Gary C. Jacobson, The Republican Advantage in Campaign Finance, in THE NEW DIRECTIONS IN AMERICAN POLITICS, 143, 157 (John E. Chubb & Paul E. Peterson eds., 1985); SORAUF, supra note 4, at 130. But see Jacobson, supra at 145 (declining shares of large PAC contributions in Democratic receipts) Robert Michels argued, in a classic study, that parties of the lower economic classes are inevitably led and supported by leaders of the upper classes. ROBERT MICHELS, POLITICAL PARTIES: A SOCIOLOGICAL STUDY OF THE OLIGARCHAL TENDENCIES OF MODERN DEMOCRACY (Edan Paul & Cedar Paul trans., 1915).
22 Election Reform and Democratic Objectives on the campaign process (because it was a cheaper, more manageable way to fight the battle than general grass roots lobbying efforts) must now be moved to a larger stage which requires even greater expenditures. Finally, this candidate-centered system shuts some voters out of the process. For those whose goal is party unity, there is nowhere to spend their money in the primary process. Thus, one can easily conclude that influence is not necessarily unacceptable within the electoral and political processes. Voters across the spectrum-fundamentalists, business people, union members, and others-may want to have some assurance that people with whom they sympathize have a role in government; financial support may provide that assurance. People know their candidates-and their enemies-by the alliances they make. As Sorauf pointed out, attachments compete with and often outweigh, in people's minds, negative views about campaign finance." Legitimacy-i.e., public approval of the rules-is important. It is also important that the public gets its preferred candidates, those who espouse positions the public deems important and who possess the institutional ties which provide the public with security. In the face of the widespread urge to limit campaign funds and the evidence of large contributions and legislative scandals, it is difficult to assert that increasing the purity of the process will not result in a more democratic system. However, in order to achieve the ultimate goal of increasing choice and control, the assumption that limiting campaign funds and contributions democratizes politics must be questioned. It is probably wrong." C. Increasing Representation through Enfranchisement Parts A and B explored competing routes to a single basic goal, electoral equality coupled with popular choice and control, and focused on the organization and individualization of politics. An essential means of achieving voter equality and voter control is the enfranchisement of disenfranchised Americans. Much of the development of election law has dealt with representation in this direct fashion; other means are far less relevant Sorauf, Opinion, supra note 5, at A caveat is in order. As Roman Hedges pointed out to me, it is not clear that any set of conclusions about campaign finance, or other issues considered below, holds true for campaigns at different levels of government. The background circumstances tend to be very different. The availability of funds and the ability to communicate with the public differ widely, and there is little reason to expect these to be the same. As circumstances differ, the effect of remedies must vary. It is inappropriate routinely to copy federal rules on the state level or state rules on the federal level or either set of rules on the local level. Restrictions may eliminate candidates on the federal level but not on the local or state levels. Large contributions may loom much larger locally. And, group affiliation may be much less important in local elections.
24 Election Reform and Democratic Objectives IV. THE SURVIVAL OF DEMOCRATIC SELF-GOVERNMENT The effect campaign reform has on future electorates is an extension of the effect it has on present electorates. Both are aspects of the democratic standards of equality, rational choice, and popular control. To the extent that people are obligated to make democracy available to each other and to their children, the stability and survivability of democracy must be an objective of democratic reform The legal profession pays very little attention to the future;.. virtually the entire legal effort has been devoted to definition of present constitutional rights and statutory programs under contemporary circumstances. Yet there is a literature on what political scientists describe as stable democracy. For them, the goal is to define the requisites for the establishment and survival of democratic systems. This concern is not new. Since the founding of the republic, statesmen have been concerned with the attachment of the people to their political system. Hamilton's efforts to secure the support of men of wealth is well known." 6 Washington, Jefferson, and Jackson, among others, were concerned with the precedents they set for the support of democratic institutions." 7 Historians have been recovering the importance that the entire founding generation placed on efforts to develop a "republican" sensibility; 1. the system of checks and balances arose partly out of concern for the survival of republican government against popular disaffection as well as executive overreaching." 9 Current accumulated knowledge about the requisites of stable democracy is most fully developed in the work of G. Bingham Powell, 2 one of the preeminent scholars in the field. Building on generations of work by numerous eminent scholars, his work reveals that, in order to avoid military takeover, a combination of reasonably balanced separation of powers (in a presidential 114. See Auerbach, supra note But see Frederick Schauer, Precedent, 39 STAN. L. REV. 571, (1987) (noting that current decisionmakers consider impact on future cases) See NATHAN SCHACHNER, ALEXANDER HAMILTON 244, 256 (1946) See JAMES THOMAS FLEXNER, WASHINGTON: THE INDISPENSABLE MAN 212 (1984); THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 163 (William Peden ed., 1955); ARTHUR M. SCHLESINGER, JR., THE AGE OF JACKSON (1945); George Washington, George Washington's Farewell Address (1796), in HISTORIC DOCUMENTS OF THE PRESIDENCY: [ , 51 (Michael Nelson ed., 1989) GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, (1969); Thomas James, Rights of Conscience and State School Systems in Nineteenth-Century America, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 117 (Paul Finkelman & Stephen E. Gottlieb eds., 1991); Peter S. Onuf, State Politics and Republican Virtue: Religion, Education, and Morality in Early American Federalism, in TOWARD A USABLE PAST, supra, They conformed their own proposals to principles the people would accept, relied on popular attachment to the House of Representatives, and were concerned by popular attachment to the states as sources and obstacles of obedience to law and the success of other official undertakings POWELL, supra note 112.
25 Yale Law & Policy Review Vol. 9:205, 1991 system) and a tolerant political culture in which citizens broadly participate appears to be necessary. Unfortunately, the current spate of reform proposals assumes that the critical ingredient in protecting the people's allegiance to democracy is campaign purity rather than institutional competence. Thus, serious questions about our ability to maintain an adequate system of checks and balances and sufficient levels of tolerance-and thus democracy-are raised by these reform efforts. A. The Separation of Powers. The major risk to stable democracy is the risk of what the founders termed "despotism" by the executive 1 22 (in contrast to legislative usurpations'23). The founders endeavored to avoid executive despotism by means of separation of powers 2 4 and by removing some of the inducements to takeover." t The founders were right to be concerned; presidential systems are quite prone to executive and military takeovers. 26 Moreover, no example of a democratic presidential system without a legislative body comes to mind. A legislature is an essential element of a democracy. The question then becomes how to balance the departments. A weak legislature is more subject to executive takeover,' 27 yet a strongly divided government is more subject to a military coup The separation of powers attempts to formulate that crucial balance. Congress controls the purse and makes rules which the executive must follow. As long as Congress retains the support of other significant political actors, 121. On a tolerant political culture, compare LEE C. BOLLINGER, THE TOLERANT SOCIETY (1986) (on tolerance and the First Amendment); DAVID C. MCCLELLAND, THE ACHIEVING SOCIETY 203 (1961); ROBERT P. WOLFF ET AL., A CRITIQUE OF PURE TOLERANCE (1969); David C. McClelland, National Character and Economic Growth in Turkey and Iran, in COMMUNICATIONS AND POLITICAL DEVELOPMENT 152, 163 (Lucian W. Pye ed., 1963) (lack of concern for feelings of others associated with prevalence of dictatorship). On the civic republican concept of virtue important to the founders (public spirit critical to the survival of democracy), see WOOD, supra note 118; James, supra note 118; Onuf, supra note 118. See also THE FEDERALIST No. 10 (James Madison) (on need to transcend faction) See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 254 (Max Farrand ed., 1966) (June 16, 1787, remarks of James Wilson); 2 id. at 105 (July 24, 1787, remarks of Gouverneur Morris). James Wilson's June 1, 1787, proposal that the executive consist of a single person encountered considerable reluctance. 1 id. at 65. Edmund Randolph, who had introduced the Virginia Plan without specifying the number of members in the executive, argued "strenuously" against this proposal as "the foetus of monarchy." 1 id. at See 1 id. at 139 (June 6, 1787, remarks of George Mason); 2 id. at 31 (July 17, 1787, remarks of Gouverneur Morris); 2 id. at 298 (Aug. 15, 1787, remarks of John Francis Mercer) The Constitutional Convention subjected the armed forces to Congressional authorization and rule-making under a maximum two year appropriation and established some Congressional control via the necessary and proper, financial authorization, and impeachment clauses An example is a too sharply limited term of office POWELL, supra note 112, at 171 (using a table to illustrate overthrow or suspension of democratic regimes through internal conflict in twentieth century) This is particularly true when the branches are divided among the parties. Id. at Id. at 173.
26 Election Reform and Democratic Objectives it can exercise authority; as long as it maintains its independence and matches its development of oversight technique to contemporary situations, it can restrain the other branches of the government from arbitrary behavior and the usurpation of individual liberty, civilian authority, and electoral machinery. 129 To accomplish these ends, the legislature must be an effective governing body. 3 ' A strong Congress is necessary to give expression to diverse interests and to counterbalance the presidential voice. Moreover, both the executive and legislative branches must be capable of compromise. Although the early presidents may have carried deference to the legislature to an extreme by failing to veto legislation unless they believed it unconstitutional, a legislature forced to stand on the sidelines is too weak to guarantee a stable democracy."' And, a Congress which is both actually and apparently weakened may intensify alienation from the existing system and increase support for executive government Election rules are closely intertwined with visions of the separation of powers. The APSA Committee assumed the primacy of Congress; thus, legislative parties dominated the structure of its proposals. Although the relation to stable democracy was not spelled out, strong parties tend to strengthen the legislative role vis-k-vis the president or state governors. By stressing executive government, attacking legislative government as parochial,' 33 and individualizing legislative campaigns, contemporary reformers have tended to weaken the legislature vis-k-vis the president and state governors. "' For instance, if the latest version of limits on legislatures, term limits, succeed in reducing entrenched power within the legislature, they will also weaken the legislature in its conflict with the President.' 3 5 The best that 129. For an example of the reassertion of congressional authority, see SENATE SELECT COMM1rrEE TO STUDY GOVERNMENTAL OPERATIONS wrrh RESPECT TO INTELLIGENCE ACTIVITIES, INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS, S. REP. No. 755, 94th Cong., 2d Sess., bk. 11 (1976) Good results without the perception of a satisfactory process, however, are not sufficient to assure stability. See POWELL, supra note 112, at , The judiciary can, of course, play a part in sustaining a proper understanding of executive and legislative roles One could respond to a weak branch by trying to strengthen it. Thus the relationship between presidential hero worship and a weak Congress is somewhat ambiguous. Nevertheless the risks appear substantial and alienation from both parties and Congress appear to have grown in tandem with a weakened legislature. Buckley v. Valeo, 424 U.S. 1, 25 (1976), decided on the ground of legitimacy (the appearance of corruption as a compelling government interest), may have aggravated the problem by sustaining legislation which requires individual campaign organizations. See Sorauf, Thicket, supra note See Michael A. Fitts, The Vices of Virtue: A Political Party Perspective on Civic Virtue Reforms of the Legislative Process, 136 U. PA. L. REV (1988) Brains et al., supra note Although the issue is quite recent and has not yet produced extensive scholarly commentary, Clifford Brown, a political scientist and advisor to John Anderson in his presidential bid, has written that term limits are "a bad idea [blecause it will seriously undercut the ability of Congress to deal with the federal bureaucracy...." Clifford Brown, Term Limits: Fired Terms Would Make Government Less Responsive, SUNDAY GAZETTE (Schenectady), June 2, 1991, at El.
27 Yale Law & Policy Review Vol. 9:205, 1991 might be said about term limits is that they might fail to weaken the legislature if new and inexperienced legislators turn to outsiders-such as parties, the bureaucracy, lobbies, and other organizations-for strength. Nonetheless, any contest between a powerful executive bureaucracy and an inexperienced legislature must result in a transfer of power from legislators to others. Thus, efforts to reform the electoral system threaten to reinforce or increase executive dominance. Moreover, this tilt toward the executive is magnified by a snowball effect. As stronger, more powerful executives speak with a relatively unified voice magnified by a hierarchical bureaucracy 36 and media attention,' 37 they can cast the blame on the legislatures for governmental failures and delays. 38 This results in reforms, such as the extensive fmancial rules designed to limit the public's ability to influence congressional candidates, which also limit the extent of congressional campaigns. 39 Since parties can provide cohesion among representatives pulled in disparate directions, election rules which weaken parties also weaken Congress." A strong legislature capable of ensuring the survival of democracy probably demands strong parties. Existing work among political scientists does not suggest the survival of a legislative system built on weak political parties.'" Although Congress may be an example of such a system, it is not clear how long it can withstand the pressures of presidential leadership without stronger organized party ties to the population. Thus, the individualist direction of current campaign finance and primary reform fractionalizes Congress and weakens its institutional capacity. This outcome not only has significant short term ramifications, but also immense future ones For a description of the power of the bureaucracy vis-a-vis Congress, see MORRIS FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT (1977) See HERBERT J. GANS, DECIDING WHAT'S NEWS: A STUDY OF CBS EVENING NEWS, NBC NIGHTLY NEWS, NEWSWEEK, AND TIME 8-38 (1979) For example, President Reagan generated a budget imbalance and managed to blame Congress for not dealing with it. Indeed Congress is on the horns of a dilemma, standing accused of improper deliberation when it compromises among the 535 positions represented, and of not deliberating enough. See Fitts, supra note 133. All of this implies a still more frightening conclusion-that Americans have lost respect for the politics of democracy Presidential, but not congressional candidates, get public funding for campaigns. See 26 U.S.C , (1988) See Fitts, supra note 133. For a competing and chilling account of legislatures without parties, see POLSBY, supra note 7, at By weak parties, I refer to parties which are largely individual personal organizations. Weak parties weaken legislatures, but weak legislatures may be overcome (as in the Philippines). See POWELL, supra note 112, at 152 (describing widespread legislative defections to president's party as a result of immensely powerful presidency). Parties which are loose aggregations of personal organizations should not be confused with fractional parties-parties which represent narrow electoral groupings but which, nevertheless, may reflect significant electoral cleavages. The impact of fractional parties on democracy is a separate question which Powell discusses at length.
28 Election Reform and Democratic Objectives B. Tolerance The second criterion for the stability or survival of democracy is the conviction among political elites that they must work together, that maintaining control of office is secondary to maintaining democracy.' 42 That conviction ultimately restrains those who could effect a coup-primarily the executive and the military. Cross-national studies reveal that deadly violence results from elite strategy;' 43 even military intervention depends on a loss of civilian prodemocratic consensus which allows the military consensus and unity necessary to sustain such a move.'" Where people view power as more important than cooperation, bloody struggles for power are often the result.' 45 Since Martin Van Buren, Americans have expressed a strong stake in the two-party system to preserve tolerance. As Van Buren made clear, each party had a stake in the strength of the other. Only with a strong opposition party could each side determine who was for and against it; without a strong opposition, there are only opportunists. As alienation increased during the 1960s, election rules facilitated running against the parties, old machines crumbled, and party loyalists gained the label "special interest"; in the process, Americans also lost one of the critical ideological underpinnings of tolerance. Maintaining a tolerant political culture requires bridges across differences.'" Some societies have tried to achieve stability by avoiding exposure to difference through segregation of different native groups. " Ours has rejected that means on moral grounds. Differences without exposure are complementary volatile chemicals awaiting mixture; 48 it is not a stable solution for a free society. Instead of resting on this type of ignorance, tolerance in a free society must rest on respect, mutual concern, and identification. These attributes may 142. PowELL, supra note 112, at (discussing consociational practices and extremism variable-extremism is associated with instability of democratic government). Although revolution is not closely related to riots and protests, enfranchisement is crucial to order as it provides an outlet for frustration. Id. at 132, 206, 208. Brandeis referred to both the justice and the instrumental aspects of participation in his famous remarks on freedom of speech in Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) POWELL, supra note 112, at Id. at See supra note There is, of course, little to expose and little to bridge in homogeneous societies; thus, they are marked by relatively little violence and instability. See POWELL, supra note 112, at 45. They may also be very unfair, as Madison suggested in THE FEDERALIST, No. 10. Representation is also essential. Representation allows the conviction that one's interests are being taken into account. Without it the remaining options are subordination, indifference and hostility. Reasonably good representative forms have appeared essential to stable democracy. A weak Congress and extensive nonvoting sap confidence in the representative system. In addition to the argument developed below, inherent executive power, if it means action without consensus, may polarize society and threaten stability It has come to seem improbable that stability can be achieved in that way See KARL DEUTSCH, NATIONALISM AND SOCIAL COMMUNICATION (1953) (impact of rate of integration on tolerance).
29 Yale Law & Policy Review Vol. 9:205, 1991 be achieved either through reliance on self-interest (generated by pluralistic institutional arrangements) or through psychological and educational processes (which lead toward tolerant individual values). Madison's famous argument about factions in The Federalist No. 10 can be understood as a route to self-interested institutional tolerance. According to Madison, regardless of individual predilections, a sufficiently divided political system cannot gang up on any one group. Partly, this is due to the lack of a majority. Also important, however, are the working relationships necessary to sustain shifting coalitions. In other words, short term majority/minority status is softened by the probability that members of each group will need the support of members of another on subsequent issues The need for coalition building therefore encourages tolerance. In the modern presidential system, however, the president defines how political events should be understood. "5o Without competing powerful voices, the public tends to polarize into those loyal to the chief and everyone else, thus threatening tolerance for competing approaches to political problems."' Moreover, election rules, with their focus on primaries" 5 2 and restrictions on campaign funding by parties,153 thwart coalition building and thus exacerbate the problem. The election rules also frustrate moderate voices 154 and make legislative voices appear uniquely corrupt. 5 ' By contrast, public funding of the presidential campaign avoids the seamy side of political fundraising.' 56 Thus the rules subtly encourage the notion that bargaining, implicit in the legislative process, is illegitimate; that legislative views are unworthy because partial;' 57 and that there is a single correct-even patriotic-answer reflected in presidential policy.' 149. See ROBERT DAHL, A PREFACE TO DEMOCRATIC THEORY (1956) (describing give and take of pluralistic democracy); JOHN HART ELY, DEMOCRACY AND DISTRUST 80-82, 84, 135, (1980) (describing failures of pluralism) The facts of world politics do not come ideologically or evaluatively pre-labelled. W. LANCE BENNETT, NEWS: THE POLITICS OF ILLUSION (1983); Peter Golding, The Missing Dimensions-News Media and the Management of Social Change, in MASS MEDIA AND SOCIAL CHANGE (Elihu Katz & Tam~s Szecsk6 eds., 1981). The media power of the president is crucial to that labelling process. GANS, supra note In parliamentary systems, coalitions might be built either in large districts, as Madison argued, or across districts in the legislature. In presidential systems the latter option is less significant because of the power of the president to shape a dominant national majority See Gottlieb, supra note U.S.C. 441a (1988) See Gottlieb, supra note 61 (describing balkanization of politics by rules which channel campaign funds into numerous separate groups with constraints on interaction) This is largely due to the way election rules highlight the foibles of the legislative process through extensive disclosure while restricting work with "special interests," a term which now apparently includes everyone. See Sorauf, Thicket, supra note 5, at , 117, U.S.C , (1988) See Fitts, supra note A similar message is not so subtly incorporated in school textbooks. See Stephen E. Gottlieb, In the Name of Patriotism: The Constitutionality of "Bending" History in Public Secondary Schools, 62 N.Y.U. L. REv. 497 (1987).
30 Election Reform and Democratic Objectives Because of the relationship between tolerance for opposition and a multidimensional system, a stable democratic system is promoted by avoiding changes in election rules which weaken Congress and the parties as partners in government. That conflicts with proposals for term limits and steps toward the individualization of politics through campaign finance limitations and other means. An alternate means of bridging differences is through education. Students of tolerance have long noted that education is related to tolerance of disfavored groups. 59 The learning of tolerance occurs in many forms including: tradition, 160 mimicry, 6 " and congruence of behavior in different situations. 162 Integration educates when it takes place under conditions of equality, and particularly of common purpose. 163 Conversely, the "spiral of silence"- reluctance to express views in conflict with views perceived as dominant-is a perverse though ambiguous indication of the legitimacy that flows from exposure. 16 " Thus, building bridges across differences suggests the necessity of cross-exposure, not only in electoral contexts like debates, but also in nonelectoral contexts like public schooling, integration, and universal public service. 161 The polarization of American society seems to have undercut the more centrist, and often tolerant, parties Mass-based political parties, which can facilitate significant and legitimate competing voices, are declining, thus making it easy to dismiss political opposition and fractious legislatures as 159. SAMUEL A. STOUFFER, COMMUNISM, CONFORMITY, AND CIVIL LIBERTIES (1955); JOHN L. SULLIvAN ET AL., POLITICAL TOLERANCE AND AMERICAN DEMOCRACY (1982) (showing that education affects targets of tolerance, rather than a willingness to tolerate an individual's most despised group; in either formulation, educational processes result in some groups coming to seem less threatening and more tolerable) See, e.g., CLINTON ROssITER, SEEDTIME OF THE REPUBLIC (1953) Advertising and the mimicry of parents by children are disparate examples of a common process. See, e.g., THOMAS GORDON, P.E.T.: PARENT EFFECTIVENESS TRAINING (1970) HARRY ECKSTEIN, A THEORY OF STABLE DEMOCRACY (1961) (Research Monograph No. 10, available from the Center of International Studies, Princeton University) See GORDON ALLPORT, THE NATURE OF PREJUDICE (1954) (discussions of contact hypothesis); Mark A. Chesler, Contemporary Sociological Theories of Racism, in TOWARDS THE ELIMINA- TION OF RACISM 36 (Phyllis A. Katz ed., 1976); 4 SAMUEL STOUFFER ET AL., STUDIES IN SOCIAL PSY- CHOLOGY IN WORLD WAR 11 (1950) (describing impact of ethnic and religious integration on soldiers). See also PHYLLIS A. KATZ & DALMAS A. TAYLOR, ELIMINATING RACISM: PROFILES IN CONTROVERSY 360 (1988) (describing contact hypothesis). Desegregation has provided a very difficult test for the contact hypothesis because of numerous failures to meet the requisite conditions, but studies meeting the conditions support the hypothesis. Id. at 3, See ELISABETH NOELLE-NEUMANN, THE SPIRAL OF SILENCE: PUBLIC OPINION-OUR SOCIAL SKIN (1984) See DEUTSCH, supra note 148; Gottlieb, supra note 53, at NORMAN H. NIE ET AL., THE CHANGING AMERICAN VOTER (1976) (describing sequence of changes in American attitudes toward politics between 1956 and 1964). See also CROTTY, supra note 64, at (discussing increasing disenchantment with political system and resulting nonvoting). The decline of mass-based political parties may be both a symptom and a cause of declining toleration.
MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question. 1) The Founders intended that the House of Representatives be 1) A) professional. B) electorally insulated.
HEARING QUESTIONS CONGRESSIONAL DISTRICT LEVEL. Unit One: What Are the Philosophical and Historical Foundations of the American Political System?
LEARNING OBJECTIVES After studying Chapter 16, you should be able to: 1. Understand the nature of the judicial system. 2. Explain how courts in the United States are organized and the nature of their jurisdiction.
WHY NOT BASE FREE SPEECH ON AUTONOMY OR DEMOCRACY?
Congress Chapter 8 Constitutional Background: Representation of Popular, Group, and National Interests Background: Congress exercised supreme legislative power up until the beginning of the 19 th century.
By social science convention, negative numbers indicate Republican advantage and positive numbers indicate Democratic advantage.
Introduction to the Symposium "State Courts and Federalism in the 1980's"

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On one hand, United States Army Corps of Engineers v. Hawkes Co. was a gift to an eight-Justice Court: a case with a straightforward legal question and compelling facts that could be decided narrowly, leaving harder issues for another day. In a majority opinion authored by Chief Justice John Roberts, the Court unanimously and predictably concluded that jurisdictional determinations issued by the Army Corps of Engineers under the Clean Water Act constitute final agency action under the Administrative Procedure Act, meaning they can be reviewed in court immediately. On the other hand, as the decision’s three separate concurrences reflect, the devil is in the details, and the details here are quite interesting as a matter of administrative law.
As I described in my preview, this case involves a provision of the Clean Water Act that requires property owners to obtain a permit from the Corps before discharging dredged or fill material into waters covered by the Act. Sometimes it is difficult to tell whether waters fall within the Act’s reach, and the Corps offers “jurisdictional determinations” (JD) to parties seeking clarification before they undertake the arduous permitting process. According to Corps regulations, each JD remains valid for five years, unless new information surfaces. The respondents in this case are landowners who mine peat, a substance used to make flat putting greens – which, as the Chief Justice quipped, “leave golfers with no one to blame but themselves for errant putts.” They received a JD concluding that their wetland property contained jurisdictional waters. As it became clear that the permit process would be time-consuming and costly, they sought judicial review of the JD.
The Supreme Court follows a two-pronged test for determining APA finality, established in a 1997 case called Bennett v. Spear. Both sides agreed here that the first prong was met: a JD marks the consummation of the Corps’ decision-making process. The issue for the Court was whether a JD also satisfies the second prong: whether it is an action “by which rights or obligations have been determined, or from which legal consequences will flow.” In the briefing and argument, the government characterized a JD as a form of non-binding advice that carries no legal consequences of its own, but merely helps parties understand the existing law. The landowners, in contrast, focused primarily on the practical burdens imposed by a JD – a party receiving an affirmative JD must stop using the property, seek a costly permit, or risk an enforcement action. The parties also invited a broader reconsideration of Bennett, arguing about whether the test really requires both prongs, and about the relevance of pragmatism to the Bennett analysis.
The Court avoided a broader decision by concluding that the JD meets both of Bennett’s usual requirements. In concluding that a JD carries legal consequences, the Court relied primarily on a Memorandum of Agreement (MOA) between the Corps and the Environmental Protection Agency (which shares authority to enforce the Act). As I discussed earlier, the MOA did not feature prominently in the briefs, but the Justices zeroed in on it at oral argument. The MOA states that “[f]inal determinations” made pursuant to the MOA “will be binding on the Government and represent the Government’s position in any subsequent Federal action or litigation concerning that final determination.” This provision establishes a liability limit, or safe harbor, for the five-year validity period of a negative JD. The MOA thereby provides a concrete legal consequence that the case otherwise appears to lack.
But there is a wrinkle. The government interprets the MOA to apply only to certain “special cases” defined in the MOA, and not to ordinary cases like this one. At oral argument, the Chief Justice resisted that reading as contrary to the MOA’s plain text, and the opinion followed suit, dismissing the government’s position in a footnote. Perhaps because hinging a decision on a contested memorandum with little briefing is unusual, the concurring opinions each discussed the MOA further. Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, linked the MOA to his longstanding concerns regarding the “troubling questions” the Clean Water Act raises about the government’s authority to limit private property rights. Kennedy’s concurrence noted that even if inter-agency agreements do not ordinarily establish finality, “the Court is right to construe a JD as binding in light of the fact that in many instances it will have a significant bearing on whether the Clean Water Act comports with due process.” Justice Elena Kagan’s concurrence noted that for her, the MOA “is central to the disposition of the case,” because it provides the requisite legal consequence. In contrast, Justice Ruth Bader Ginsburg’s concurrence joined the majority opinion except for its reliance on the MOA, given the lack of briefing about the document and the government’s divergent construction of it. In Justice Ginsburg’s view, the JD at issue had sufficient legal consequences even without the MOA.
The Court’s reliance on the MOA is noteworthy for two reasons. First, the Court did not even discuss the possibility of deference to the Corps’ interpretation of its own MOA. Although such inter-agency agreements do not fall within any of the established deference doctrines, like Chevron for statutory interpretations and Auer for regulatory interpretations, some qualities of an MOA track the usual reasons courts defer to agencies – i.e., the agency has superior expertise and familiarity with the question at issue. The Court’s choice not even to discuss deference may thus reflect what some commentators have perceived as an anti-deference mood in recent Roberts Court opinions (such as Utility Air Regulatory Group v. EPA and King v. Burwell).
An important question, then, is whether the opinion identifies any legal consequences that flow from a JD, independent of the MOA. The leading candidate lies in the Court’s discussion of the JD’s practical consequences. As the Court puts it, a JD effectively “warns that if [property owners] discharge pollutants…without obtaining a permit…, they do so at the risk of significant criminal and civil penalties.” Would this sort of warning, alone, satisfy Bennett? The Court’s one-paragraph discussion leaves the answer to this question unclear. The Court states that its finality conclusion “tracks the ‘pragmatic’ approach we have long taken to finality,” and compares this case to a 1956 decision, Frozen Food Express v. United States, in which an order was deemed final when it warned parties of significant penalties but did not directly regulate their conduct.
If the Court intended the JD’s practical consequences to constitute an independently cognizable legal effect, it has muddied the waters of the finality doctrine. The government’s brief had deemed Frozen Food inapposite because the order there, in the government’s words, “effectively functioned as a rule”: it “set the standard” for how “an important segment of the trucking” industry would operate. In rejecting that distinction, the Court could be read to suggest that effectively warning a party that significant penalties will attach to certain conduct is all it takes to establish a legal consequence. If that is the case, line-drawing will be difficult going forward. This is the problem Justice Kagan identified at oral argument when searching for a way to separate JDs from the many forms of beneficial advice-giving that the government regularly provides.
Finally, the Court did not rule on any possible changes to the doctrine of Bennett v. Spear. It wrote in a footnote that, having found both of the Bennett prongs satisfied, it did not need to consider the landowners’ argument that meeting only the first prong would suffice. In a footnote in the separate opinions, Justices Kagan and Ginsburg noted disagreement about Bennett’s effect on the Court’s earlier opinions in Abbott Laboratories and Frozen Food. These issues, like many others this Term, will await another day.
The landowners in this case sought immediate appeal of an Army Corps “jurisdictional determination” (JD) that wetlands on their property were subject to regulation under the Clean Water Act. The government disagreed, arguing that JDs are not final within the meaning of the Administrative Procedure Act. The Court sided with the landowners, concluding that JDs meet the requirements for finality.

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