Download Political Entrenchment: Understanding the Implications and Consequences and more Study notes Public Law in PDF only on Docsity!
C.400.LEVINSON-SACHS.482.DOCX (DO NOT DELETE) 11/18/15 1:10 PM d a r yl lev in so n & ben ja m in i. sa c h s
Political Entrenchment and Public Law
a b stra ct. Courts and legal scholars have long been concerned with the problem of “entrenchment”—the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and scholarship has focused nearly exclusively on formal entrenchment: the legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of the political community, or by altering the structure of political decision making, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that raise red flags. Recognizing the continuity of formal and functional entrenchment forces us to consider why public law condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics. a u th o rs. Daryl Levinson is the David Boies Professor of Law, NYU School of Law. Benjamin I. Sachs is the Kestnbaum Professor of Labor and Industry, Harvard Law School. For helpful comments and suggestions, the authors thank Will Baude, Adam Cox, Michael Farbiarz, Catherine Fisk, Heather Gerken, Jacob Gersen, Don Herzog, Sam Issacharoff, Michael Klarman, Rick Pildes, John Rappaport, Daphna Renan, Shalev Roisman, David Schleicher, David Skeel, and Adrian Vermeule, along with workshop participants at the NYU School of Law, the University of Chicago Law School, and the University of Virginia School of Law. The authors also gratefully acknowledge the superb research assistance provided by Meredith Boak, Nikolas Bowie, Daniel Crossen, Alison Deich, William Dreher, Parimal Garg, Scott Hochberg, Rachel Homer, Juhyung Harold Lee, Carly Rush, Mary Schnoor, Joshua Segal, and Julie Siegel.
political entrenchment and public law
- introduction a r ticle co n ten ts
- i. political entrenchment through the lens of public law
- A. What Is Political Entrenchment?
- B. Two Forms of Political Entrenchment
- Electoral Entrenchment
- Legislative Entrenchment
- Common Denominators
- ii. from formal to functional entrenchment
- A. The Idea of Functional Entrenchment
- B. Money and Mobilization
- From Poll Taxes and White Primaries to Labor Law
- From Campaign Finance Reform to Tort Reform
- C. Shaping the Political Community
- From Gerrymandering to State Admissions
- From Suffrage Restrictions to Immigration
- D. Switching Decision Makers
- From Legislative Entrenchment to Judicial Entrenchment
- Entrenchment 2. From Legislative Entrenchment to Administrative and International
- E. Summary
- iii. rationalizing entrenchment?
- A. The Uneasy Case for Policing Formal but Not Functional Entrenchment
- Harmfulness
- Identifiability
- (In)conclusion
- B. Extensions
- The Uncertain Case for Distinguishing Constitutional Entrenchment
- The Uncertain Categorical Boundaries of Entrenchment
- conclusion
political entrenchment and public law legislation for the purpose of weakening unions.^5 In 2011, for instance, the Republican-dominated Wisconsin legislature overhauled the state’s collective bargaining laws to profoundly curtail unions’ ability to participate effectively in politics. In case the purpose of these measures was not apparent, the new restrictions exempted all the unions that had endorsed the Republican Governor in the previous election.^6 The goal, it seems, was to selectively incapacitate the Republicans’ political opponents,^7 and not just at the state level: as Wisconsin’s Republican senate majority leader put it at the time, “[I]f we win this battle, and the money is not there under the auspices of the unions... President Obama is going to have a... much more difficult time getting elected... .”^8 Wisconsin Republicans intent on undermining their political opposition and entrenching their party in office did not need to resort to disfranchisement or gerrymandered electoral districts. They used labor law instead. Or consider Social Security, a program that is notorious for its resistance to reform or retrenchment. The program is not protected by any legal barrier to repeal or special election rules favoring its supporters. Rather, the program mobilized and empowered its defenders to stave off subsequent political attacks. Put differently, Social Security is entrenched not formally , but functionally. This was no accident. In developing the program, President Franklin D. Roosevelt “had one overriding aim. He wanted to entrench [S]ocial [S]ecurity so deeply in our institutional life that it would be politically 5. See Steven Greenhouse, G.O.P. Platform Seeks To Weaken Powers of Unions , N.Y. TIMES: CAUCUS (Aug. 30, 2012, 10:58 AM), http://thecaucus.blogs.nytimes.com/2012/08/30/g-o-p
- platform-seeks-to-weaken-powers-of-unions [http://perma.cc/6ZBM-NFAJ] (describing the 2012 Republican platform’s call for elected officials to reform labor laws in restrictive ways and “salut[ing] Republican governors and state legislators” who had already taken such steps). 6. See Governor Walker Introduces Budget Repair , OFF. GOVERNOR SCOTT WALKER (Feb. 11, 2011), http://walker.wi.gov/newsroom/press-release/governor-walker-introduces-budget
- repair [http://perma.cc/QC64-LP8T] (“Local law enforcement and fire employees, and state troopers and inspectors would be exempt from these changes.”); Todd Richmond, Exemptions for Police, Fire Fighters in Walker Budget Bill Sparks Questions of Political Payback , NW. (Feb. 14, 2011 ), http://archive.thenorthwestern.com/article/20110214/OSH /110214045/Exemptions-police-fire-fighters-Walker-budget-bill-sparks-questions-political
- payback [http://perma.cc/M8KE-95Y9]. 7. See Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640, 665 (7th Cir. 2013) (Hamilton, J., concurring in the judgment in part and dissenting in part). 8. Id. at 652 (majority opinion) (second alteration in original) (quoting Wis. Educ. Ass’n Council v. Walker, 824 F. Supp. 2d 856, 876 n.17 (W.D. Wis. 2012)), aff’d in part, rev’d in part , Walker , 705 F.3d 640.
the yale law journal 1 2 5 : 4 0 0 2 0 1 5 impossible for his opponents to repeal it.”^9 Or, as President Roosevelt himself put it, “[N]o damn politician can ever scrap my [S]ocial [S]ecurity program.”^10 Labor law and Social Security are hardly unique. A vast literature in the social sciences explores the multifarious means by which political actors insulate themselves and their policies from political change. Examples range widely. In economics, Daron Acemoglu and James Robinson have argued that the single greatest impediment to economic growth throughout world history has been the conservatism of entrenched elites who fear that “creative destruction” in the economic sphere could unsettle their dominance in the political sphere.^11 Less dramatically, in legislative contexts ranging from tax reform and emissions trading to the Affordable Care Act and Dodd-Frank, political scientists have described how progressive reformers seek to “refashion the political context” in order to “entrench and deepen” their major policy initiatives.^12 Another influential body of work describes how, following the lead of New Deal Democrats who sought to build their policy gains into the structure of the administrative state, temporarily prevailing political coalitions seek to manipulate administrative structure and process in order to “stack the deck” in favor of their preferred outcomes.^13 Legal scholars not infrequently draw upon, and even contribute to, these lines of interdisciplinary work. Yet there has been almost no recognition that the functional entrenchment strategies being described serve the same purposes as the formal entrenchment techniques that public law regulates. Nor is there recognition that the democratic concerns invoked against formal entrenchment are equally applicable when identical outcomes are achieved functionally. Public law’s normative perspective on political entrenchment is puzzling in another respect as well. If locking in political arrangements and binding the hands of future decision makers is a democratically dubious enterprise, then 9. BRUCE ACKERMAN & ANNE ALSTOTT, THE STAKEHOLDER SOCIETY 15 (1999). 10. Paul Starr, Three Degrees of Entrenchment: Power, Policy, Structure 31-32 (Sept. 2013) (unpublished manuscript) (on file with authors). 11. DARON ACEMOGLU & JAMES A. ROBINSON, WHY NATIONS FAIL: THE ORIGINS OF POWER, PROSPERITY, AND POVERTY 84 (2012). 12. Eric M. Patashnik & Julian E. Zelizer, The Struggle To Remake Politics: Liberal Reform and the Limits of Policy Feedback in the Contemporary American State , 11 AM. POL. SCI. REV. 1071, 1072 (2013). See generally ERIC M. PATASHNIK, REFORMS AT RISK: WHAT HAPPENS AFTER MAJOR POLICY CHANGES ARE ENACTED (2008). 13. See, e.g. , Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies , 75 VA. L. REV. 431, 433-44 (1989) (examining how legislators assure “agency compliance with the desires of the political coalition enacting and overseeing legislation”).
the yale law journal 1 2 5 : 4 0 0 2 0 1 5 prevailing regulatory regime. It might try to drive polluting industries offshore and out of the American political process. Or it could delegate expansive regulatory authority to a politically sympathetic agency like the Environmental Protection Agency, which might be more insulated from change than the political branches. All of these different strategies might be viewed by the coalition as functional substitutes—more or less interchangeable mechanisms for accomplishing the same basic purpose. But public law would view them as quite distinct, as a matter of both legal rules and normative democratic theory. This Article questions what, if anything, justifies this differential treatment. At a descriptive level, it catalogues and compares the range of legal and political techniques through which parties, politicians, and policies are insulated against contestation and change. At a normative level, it raises questions about whether and when political entrenchment of various kinds should be regarded as a matter of concern in public law and what exactly the concern should be. More specifically, the Article proceeds as follows. Part I surveys how the phenomenon of political entrenchment has been defined and regulated as a matter of public law. Entrenchment comes into view when political actors intentionally create legal impediments to political change. Beyond the special case of constitutionalism, public law has recognized and regulated this behavior primarily in two contexts. One is election law, where scholars have increasingly viewed the entrenchment of incumbent officeholders, political parties, and majority coalitions as the central problem that legal regulation of the political process should be designed to solve. Although courts have not yet fashioned doctrinal tools aimed explicitly at preventing or remedying entrenchment, judges and Justices have joined in the scholarly skepticism and in some cases have found ways of striking down election rules that seemed to have the purpose and effect of suppressing democratic competition and protecting power holders against political challenge. The doctrinal prohibition on entrenchment is more explicit in the second context of legislative entrenchment. It has long been understood that legislatures are not permitted to enact unrepealable statutes or to insulate statutes against repeal or revision by way of supermajority rules or other special procedural requirements. The blurry boundaries of this prohibition have been interpreted inconsistently by judges and scholars, who have invoked it to cast doubt on a whole range of laws, from government contracts to framework statutes and the Senate filibuster. Courts and scholars have understood electoral and legislative entrenchment as separate and independent phenomena, but it may be more illuminating to view them as pieces of a larger puzzle. Political actors use electoral entrenchment to accomplish indirectly what legislative entrenchment accomplishes directly, namely, insulating substantive policy outcomes against shifting political preferences.
political entrenchment and public law Electoral and legislative entrenchment (as well as constitutional entrenchment) are created by means of formal legal rules governing processes of political change—the rules governing voting and elections, the enactment or repeal of legislation, and constitutional adoption and amendment. Yet, as Part II describes, politicians, parties, and policies can be entrenched through functional, political mechanisms just as readily as through formal, legal ones. Developing and drawing upon a wide range of examples, this Part synthesizes three general mechanisms of functional entrenchment. First, politicians, parties, and temporarily prevailing coalitions can enact substantive policies that strengthen political allies or weaken political opponents. Second, they can enact policies or programs that change the composition of the political community, selecting in allies or selecting out opponents. Third, they can shift the locus of political decision making to an actor or institution that is responsive to allies or unresponsive to opponents. These functional strategies appear to be close substitutes for formal electoral, legislative, and constitutional entrenchment, and there is every reason to believe they are widely used by political actors to accomplish the same ends. Why does public law view formal entrenchment as a form of democratic failure and an attractive target for legal regulation while treating functional entrenchment largely as a matter of normative and legal indifference? Part III takes up this question, considering whether the apparent inconsistency can be explained or rationalized. Perhaps formal entrenchment is more harmful to democratic values, less susceptible to benign or beneficial uses, or simply easier to identify and police? Section III.A considers these possibilities but finds them less than fully persuasive. The remainder of Part III goes further in a skeptical direction. Section III.B.1 asks whether there is any good reason for viewing constitutional entrenchment more favorably than legislative or electoral entrenchment, or even for treating it as a different category. Section III.B. raises the question of whether, once we recognize that political entrenchment is not limited to formal entrenchment, the concept has any clear outer boundaries or coherent core. A unifying theme of the discussion in Part III—amplified in the Conclusion—is the need for a broader perspective on impediments to political change and assessments of their costs and benefits or democratic legitimacy. The progression of the argument along these lines leads to a shift in perspective that it may be helpful to foreshadow. Our main thrust is to show that the formal arrangements commonly described by the term “entrenchment” have functional analogues that are driven by the same motivations and have similar effects. For this purpose, we proceed on the assumption that “political entrenchment” is an adequately—even if not always clearly or consistently— defined phenomenon. Our argument is that on any plausible understanding of entrenchment, there will be innumerable political phenomena that fit the bill,
political entrenchment and public law As we shall emphasize, however, manipulating formal rules is not the only way to prevent change. After all, dictators can imprison or shoot their opponents rather than disfranchise them. Less dramatically, parties, politicians, and policies can create political, rather than legal, impediments to change. Recall the introductory example of labor law reform: incumbents can entrench themselves in office not only through gerrymandering or franchise restrictions but also by incapacitating the electoral organization of the political opposition. Or recall the example of Social Security: the program is difficult to retrench not because of any legal barrier to repeal, but because the enactment of the program mobilized and empowered defenders to stave off subsequent political attacks.^16 Whatever form impediments to political change might take, to qualify as “impediments” they must be distinguishable from the expected workings of the political process. Political entrenchment implies not just the absence of political change but some kind of special constraint on the usual processes of political change. Thus, the persistence of politicians or parties in office, or the preservation of particular policies over long periods of time, is not necessarily proof of entrenchment. If politicians, parties, or policies are retained simply because they continue to be popular among the electorate, this would not be viewed as entrenchment. Entrenchment implies that the political system is not responsive to changes in voters’ preferences; a system that is perfectly responsive to unchanging preferences would be viewed as a well-functioning democracy.^17 Thus, notwithstanding conventional claims to the contrary, it is possible that Social Security has proven politically durable simply because political support for the goal of providing financial security for people in old age has not diminished over the past eighty years. If this were the complete explanation for the program’s survival, we should not think of Social Security as entrenched any more than we think of criminal laws against homicide as entrenched.^18 Both might endure simply because they remain consistent with the first-order political preferences of a (super)majority of citizens. The perception that Social Security is entrenched stems from the view that, in contrast to prohibitions on murder, a present majority might not vote to reenact the program in anything like its current form. The program persists, in this view, because it is now defended by a powerful interest group, brought into being by the program 16. See supra notes 9 - 10 and accompanying text. 17. See Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment , 124 HARV. L. REV. 657, 702 (2011); see also Starr, supra note 10 , at 1 (“Entrenchment is not the same as persistence, though it can be one of its causes... .”). 18. Levinson, supra note 17 , at 702.
the yale law journal 1 2 5 : 4 0 0 2 0 1 5 itself, which has proven capable of preventing present majority preferences from prevailing. Other kinds of impediments to political change blur the boundary between entrenchment and ordinary politics. Suppose that Social Security persists not (just) because of interest group mobilization but because of its increasing popularity over time, as Americans have learned from their experience under the program that mandatory savings for retirement is more beneficial than they initially imagined. One could view this dynamic of endogenous preference change as a mechanism of entrenchment on the theory that this kind of path- dependent increase in political support should count as a special impediment to ordinary political change. Or suppose that critical support for preserving Social Security stems from the expectation among workers that the earmarked taxes they have paid into the program are now owed to them by the government upon retirement, or by the reliance of many Americans on the existence of Social Security payments to support their retirement, leading them not to save through other vehicles.^19 One could also view these kinds of adaptive preference shifts as mechanisms of entrenchment. For the purposes of this Article, however, we will work with a more limited definition of entrenchment. Rather than regarding some kinds of shifts in preferences as creating entrenchment barriers, we shall take individual political preferences, regardless of how they have been shaped or transformed, as given. Furthermore, we shall accept the satisfaction of present majority will—again, “black boxed” with respect to the process of its formation—as a benchmark for well-functioning democracy. Only impediments to giving effect to present majority will, such as supermajority rules for revising statutes or political dynamics like the mobilization of a powerful interest group, will be taken as examples of entrenchment.^20 Identifying this kind of entrenchment requires some baseline conception of ordinary, unconstrained processes of political change. In the public law literature on entrenchment, two kinds of “ordinary politics” baselines are commonly in play.^21 One is the process for, or political difficulty of, effecting change through some alternative channel, usually one that is more responsive to majority will.^22 19. On these alternative explanations for the political entrenchment of Social Security, see Starr, supra note 10 , at 31-33. 20. See infra Section III.B.2 for a discussion of this limited definition of entrenchment. 21. See infra Section III.B.2, which revisits these definitional baselines and questions their utility in demarcating a limited category of entrenchment. For now, we are attempting a working definition. 22. See Klarman, supra note 4 , at 498 (conceptualizing entrenchment as antimajoritarian).
the yale law journal 1 2 5 : 4 0 0 2 0 1 5 enacted by majority vote specifies that a supermajority is required for revision or repeal, combining an upward departure from the absolute standard of majority rule with an upward departure from the relative standard for initial enactment. Likewise, in the paradigmatic case of electoral entrenchment, a party or coalition manipulates the rules of election law upon gaining office—for instance, by disfranchising opponents or reducing their voting power—such that a subsequent majority of voters who would prefer to replace the incumbents will be thwarted. If that same majority would have been sufficient to prevent the incumbents from being elected in the first place, then both criteria of entrenchment are satisfied. Most of the examples this Article discusses qualify as entrenched according to both baselines. Social Security, for instance, might be classified as entrenched both by reference to present majority will and by reference to the initial difficulty of the program’s enactment, prior to the formation of a mobilized group of vested beneficiaries and supporters. Public law has primarily focused on entrenchment as an intentional strategy,^26 and most of the examples we discuss are of this sort.^27 The intentionality of entrenchment is often associated with bad motives, as when parties and politicians engage in self-serving efforts to suppress competition and maintain their hold on power. But intentional entrenchment need not be self-serving. As the literature on constitutionalism emphasizes, there are perfectly respectable, public-regarding reasons for entrenchment. Constitutions, in common with other mechanisms of entrenchment, facilitate enduring political commitments (or “precommitments”), protecting normatively preferred policies from being undermined by shortsighted or otherwise pathological decision making.^28 Constitutional and other forms of entrenchment also promote political coordination and stability, reducing the costs of both conflict and transition. Criticisms of entrenchment are also familiar from the literature on constitutionalism. Entrenched policies and political arrangements arguably substitute rule by the “dead hand” of the past for rule by present majorities, 26. See, e.g. , Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process , 50 STAN. L. REV. 643, 644 (1998) (exploring “ways in which dominant parties manage to lock up political institutions to forestall competition”); Klarman, supra note 4 , at 502 (starting from the assumption that “legislators strongly prefer to remain in office”). 27. Section III.B.2 revisits intentionality as a criterion of entrenchment. 28. See JON ELSTER, ULYSSES UNBOUND: STUDIES IN RATIONALITY, PRECOMMITMENT, AND CONSTRAINTS 88 - 174 (2000); STEPHEN HOLMES, PASSIONS AND CONSTRAINT 134 - 77 (1995).
political entrenchment and public law threatening democratic ideals of popular sovereignty and self-government.^29 The dubious democratic legitimacy of entrenchment goes hand in hand with practical concerns about preventing the current political community from responding to changed circumstances or shifting values by locking in bad or anachronistic policy decisions. We return to the costs and benefits of political entrenchment below.^30 B. Two Forms of Political Entrenchment Bracketing the special case of constitutionalism,^31 public law has grappled most extensively with political entrenchment in two contexts. Electoral entrenchment involves efforts by parties and politicians to entrench themselves in office by manipulating the rules of democratic politics. Such efforts have been generally frowned upon by courts and commentators, and scholars have called for broad swathes of election law jurisprudence to be reoriented toward preventing political entrenchment of this kind. Moving from elections to governance, it has long been assumed that “legislative” entrenchment— including, at a minimum, the enactment of statutes that cannot be revised or repealed by a majority of a subsequent legislature—is constitutionally impermissible and democratically illegitimate.
1. Electoral Entrenchment In democratic politics, power holders—whether incumbents, political parties, or electoral coalitions—will often possess the means and motivation to preserve their privileged positions by rigging the rules of the electoral system. In some cases, the desire of elected officials to entrench themselves in office may lead them to act contrary to the preferences of their constituents. Thus, term limits have found little support among incumbent state legislators, who predictably lack enthusiasm for voting themselves out of a job.^32 In other cases, officeholders and their constituents will share a common interest in perpetuating their hold on power and in fending off political challenges from 29. See DAVID A. STRAUSS, THE LIVING CONSTITUTION 99 - 102 (2010). 30. See infra Part III. 31. We return to constitutionalism infra Section III.B.1. 32. See Klarman, supra note 4 , at 509-13. Even where clear majorities or supermajorities of voters support term limits, in most jurisdictions the only route to their enactment has been through initiative and referendum processes that bypass legislatures. See id. at 510.
political entrenchment and public law Another time-honored technique for tilting the electoral playing field is manipulating the number, size, and boundaries of electoral districts—the infamous gerrymander. Before the Supreme Court required equipopulosity of legislative districts, legislators elected from malapportioned districts resisted any change in district boundaries, just as constituents in overrepresented districts resisted reapportionment schemes that would reduce their representation.^38 Along with at-large and multimember districting schemes, gerrymandering was a key line-drawing tool used by white majorities, incumbent legislators, and the Democratic Party in the South to suppress black voting power and preserve political hegemony.^39 Partisan gerrymanders remain a staple of contemporary politics, permitting parties to leverage temporary or slight legislative majorities into enduring or decisive control without the trouble of attracting more votes.^40 Alternatively, legislators who manage to overcome their partisan differences and cooperate across party lines have the opportunity to agree on districting schemes designed to preserve the safety of their seats—so-called “bipartisan” or “incumbent” gerrymanders.^41 Many other levers of electoral entrenchment are available to strategic political actors. Political parties that gain effective control of government can regulate the party structure of elections and have done so with predictable attention to the prospects for their own electoral success—for example, by requiring closed primaries when their competitor party would benefit from an open primary structure.^42 Or, the two major parties can collaborate to protect their “duopoly” by using cumbersome ballot access requirements,^43 bans on their partisan stakes in the 2016 presidential election cycle); Richard L. Hasen, The Voting Wars Heat Up , SLATE (Sept. 29, 2014 ), http:// www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may _reach_the_supreme_court_from_ohio_wisconsin_north.html [http://perma.cc/6F2F
- 9FXM] (surveying litigation over restrictive voting legislation and stressing the partisan stakes). 38. See Klarman, supra note 4 , at 513-15. 39. See Issacharoff & Pildes, supra note 26 , at 700-03. 40. See Stephanopoulos, supra note 37 , at 348-49 (presenting evidence that, in recent decades, parties with full control over state governments have enacted districting plans that award themselves six percent more seats on average than the plan that would have resulted if the opposing party had been in charge of redistricting); see also id. at 286 (suggesting that gerrymandering helped Republicans keep their majority in the House in 2012 despite receiving 1.4 million fewer votes nationwide than Democrats). 41. See Klarman, supra note 4 , at 515-16. 42. See Richard H. Pildes, Foreword: The Constitutionalization of Democratic Politics , 118 HARV. L. REV. 2 8 , 102 n.298 (2004). 43. See Klarman, supra note 4 , at 521-23.
the yale law journal 1 2 5 : 4 0 0 2 0 1 5 fusion candidacies,^44 or “sore loser” laws to prevent entry by third parties or independent candidates.^45 Campaign finance regulation offers yet another tempting instrument for suppressing competition and securing political power, allowing incumbents or temporarily dominant parties to channel money to themselves and away from challengers, while also helping corporations and wealthy donors protect their preferred policies against challenges from less wealthy constituencies.^46 Courts have intervened in all of these areas, developing an elaborate jurisprudence governing many facets of the electoral process. Poll taxes, literacy tests, and other instruments of minority disfranchisement have been invalidated.^47 The constitutional rule of “one person, one vote” now governs the drawing of electoral districts.^48 Race-conscious gerrymandering is mandated by the Voting Rights Act to ensure a measure of minority representation, but also constrained by the Equal Protection Clause to avoid overly or too overtly race-based decision making.^49 The Supreme Court has deemed political gerrymandering a constitutionally cognizable problem, albeit one for which the Justices have not been able to agree upon a judicially manageable solution.^50 Most limitations on campaign spending, beyond the regulation of direct contributions to candidates, have been invalidated as 44. See Issacharoff & Pildes, supra note 26 , at 683-86; Pildes, supra note 42 , at 117-26. 45. See Michael S. Kang, Sore Loser Laws and Democratic Contestation , 99 GEO. L.J. 1013, 1042- 58 (2011). 46. See Klarman, supra note 4 , at 522-23; Pildes, supra note 42 , at 130-53. 47. See, e.g. , Thornburg v. Gingles, 478 U.S. 30, 80 (1986) (invalidating a multimember districting scheme for its discriminatory effect on black voters); Oregon v. Mitchell, 400 U.S. 112, 131 - 34 (1970) (reaffirming Congress’s ban on literacy tests as a valid antidiscrimination measure); Katzenbach v. Morgan, 384 U.S. 641, 646 - 47 (1966) (upholding sections of the Voting Rights Act that restricted literacy tests for certain non- English speaking citizens); Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 (1966) (holding that Virginia’s poll tax violated the equal protection clause of the fourteenth amendment). 48. See, e.g. , Reynolds v. Sims, 377 U.S. 533, 558-71 (1964); Wesberry v. Sanders, 376 U.S. 1, 17- 18 (1964). 49. See, e.g. , Shaw v. Reno, 509 U.S. 630 (1993) (holding that redistricting based on race is evaluated under strict scrutiny, yet requiring redistricting to be race-conscious to ensure compliance with the Voting Rights Act). 50. See Vieth v. Jubelirer, 541 U.S. 267 (2004) (plurality opinion) (deciding, in a split decision with no majority opinion, not to intervene in a congressional redistricting plan); Davis v. Bandemer, 478 U.S. 109 (1986) (holding that political gerrymandering claims are justiciable, but without a majority agreement upon a standard to govern such claims).
the yale law journal 1 2 5 : 4 0 0 2 0 1 5 skepticism of campaign finance regulation, Justice Scalia has warned that “[t]he first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech.”^58 And Justice Breyer has explained the constitutional problem with partisan gerrymanders in terms of “[t]he democratic harm of unjustified entrenchment,” evidenced by a redistricting plan that awards a party receiving a minority of statewide votes a majority of legislative seats.^59 Prominent election law scholars have been more overtly and consistently focused on entrenchment as a central concern for legal regulation of the political process. For example, Michael Klarman argues that courts should commit themselves to policing the dual entrenchment problems of representatives perpetuating their hold on office by acting contrary to the wishes of their constituents and temporary political majorities seeking to extend their hold on power into the future.^60 To this end, Klarman develops a framework for “anti-entrenchment review” of districting, disfranchisement, ballot access restrictions, campaign finance reform, and other areas of election law.^61 Klarman’s approach is motivated by an overarching commitment to the democratic value of majority rule, which he sees as threatened whenever officials contradict the preferences of a majority of citizens or when the will of a present majority is thwarted by entrenched arrangements.^62 Similarly focused on the problem of entrenchment, Samuel Issacharoff and Richard Pildes emphasize the need to maintain political competition and to guard against “political lockups” perpetrated by “existing holders of political power [who] seek to perpetuate their control... by capturing the basic structures and ground rules of politics itself.”^63 As Pildes elaborates, judicial intervention is justified “whenever self-interested political actors employ political power to insulate themselves from the political competition required to make electoral accountability meaningful.”^64 http://www.nytimes.com/2013/10/16/us/politics/judge-in-landmark-case-disavows-support
- for-voter-id.html [http://perma.cc/G3T9-AWMK]. 58. McConnell v. FEC, 540 U.S. 93, 263 (2003) (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part). 59. Vieth v. Jubelirer, 541 U.S. 267, 361 (2004) (Breyer, J., dissenting). 60. See Klarman, supra note 4 , at 498. 61. See id. at 528-39. 62. See id. at 502-09. 63. Issacharoff & Pildes, supra note 26 , at 648, 650. 64. Pildes, supra note 42 , at 46.
political entrenchment and public law
2. Legislative Entrenchment It has long been conventional wisdom among constitutional lawyers that “one legislature may not bind the legislative authority of its successors.”^65 More specifically, a legislature may not “entrench” a law by forbidding subsequent repeal or amendment, or by imposing heightened procedural hurdles, such as supermajority voting rules that were not necessary to enact the law in the first place.^66 For example, Congress would not be permitted to enact a statute requiring a balanced federal budget “in perpetuity,” or with an attached prohibition on repeal, or a prohibition on repeal by less than a two-thirds majority. If Congress did enact such a statute, the purported entrenchment would presumably be invalidated by courts (to the extent they would find the issue justiciable). And it could be legally ignored by subsequent Congresses: notwithstanding the statutory language, a congressional majority in pursuit of an unbalanced budget would be free to repeal or override the preexisting statute pursuant to the standard second-in-time rule. This, at least, is the consensus view among constitutional theorists.^67 The precise source of the anti-entrenchment principle in U.S. constitutional law has never been entirely clear. Aversion to legislative entrenchment has a long history in British constitutional thought, where—at least in theory, if not always in practice^68 —“[t]here is no law which Parliament cannot change”^69 and “[a]cts of parliament derogatory from the power of subsequent parliaments bind not.”^70 But the British version of the anti- entrenchment principle developed as a corollary of parliamentary supremacy, and so it does not obviously translate to the American legal system, in which 65. United States v. Winstar Corp., 518 U.S. 839, 872 (1996) (plurality opinion) (referencing 1 WILLIAM BLACKSTONE, COMMENTARIES *90). 66. Thus, Eric Posner and Adrian Vermeule define legislative entrenchment as “the enactment of either statutes or internal legislative rules that are binding against subsequent legislative action in the same form.” Posner & Vermeule, supra note 24 , at 1667. 67. See, e.g. , LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 124 - 25 n.1 (3d ed. 2000); David Dana & Susan P. Koniak, Bargaining in the Shadow of Democracy , 148 U. PA. L. REV. 473, 526-36 (1999); Julian N. Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity , 19 87 AM. B. FOUND. RES. J. 379; Paul W. Kahn, Gramm-Rudman and the Capacity of Congress To Control the Future , 13 HASTINGS CONST. L.Q. 185 (1986). But see Posner & Vermeule, supra note 24 (arguing that there is no basis for a rule against legislative entrenchment). 68. See Posner & Vermeule, supra note 24 , at 1678. 69. A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 84 (8th ed. 1915). 70. 1 WILLIAM BLACKSTONE, COMMENTARIES *90.
