The Law of Legislative Representation

*Assistant Professor of Law, University of California, Berkeley. © 2021 Jonathan S. Gould. For helpful conversations and feedback, I am grateful to Jacob Abolafia, Abhay Aneja, Eric Beerbohm, Gregory Elinson, Dan Farber, Rebecca Goldstein, Vicki Jackson, Olatunde Johnson, Jacob Lipton, Jane Mansbridge, Martha Minow, David Pozen, Bertrall Ross, Nicholas Stephanopoulos, Matthew Stephenson, and commenters at Columbia Law School and Harvard’s Edmund J. Safra Center for Ethics. Thanks to Perry Abdulkadir, Derek Ha, Roger Huddle, Molly Lao, Oscar Sarabia Roman, Oliver Rosenbloom, and Daniel Twomey for excellent research assistance.Show More

Law has much to say about the practice of legislative representation. Legal rules from different substantive domains collectively determine the landscape in which legislators act. Most obviously, the law of democracy—the law regulating elections, redistricting, and money in politics—shapes the incentives that legislators face and the sorts of representation that they provide once in office. But so too does the law that governs legislative organization and procedure. Congress and other legislatures are governed by rich bodies of internal rules, many of which receive little attention from either the public or legal scholars. These internal rules can empower or constrain legislators. By the same token, they can empower or constrain those that seek to influence how legislators behave, such as party leaders and interest groups.

This Article examines how law shapes representation. It takes a legislator’s point of view of public law, looking to how law shapes legislators’ choices and incentives. In taking this approach, the Article makes three principal contributions. First, it shows how the law of legislative representation is pluralist. Rather than unequivocally pointing legislators toward one type of representation or another, the law enables and encourages legislative responsiveness to each of three groups: constituents, interest groups, and party leaders. The law gives each of these groups distinct tools for exerting influence over legislative behavior, but it does not institutionalize the primacy of any one of them. Second, fully understanding representation requires focusing on internal legislative organization and procedure. Those topics can be just as consequential for American democracy as more familiar constitutional law and law of democracy topics. Centering legislative organization and procedure reveals powerful possible levers of congressional reform. Such creative approaches are especially important given the constitutional and political hurdles that stand in the way of many reforms to the law of democracy. Third, a detailed descriptive account of political institutions and legal rules should be part of our normative theorizing about representation. Because representation is a construct of law, understanding how it operates—and how it should operate—requires close attention to legal rules.

Introduction

Legislators face many choices. Should they do what is best for their constituents or the nation as a whole? When should they be responsive to pressure from interest groups? When should they be loyal to their political parties? How should they mediate between the conflicting demands that they face?

It might seem that law has little to say about these dilemmas. Constitutional law focuses on the structure and power of Congress as a whole, but not on individual legislators.¹1.See U.S. Const. art. I; see also Daniel A. Farber, William N. Eskridge, Jr., Philip P. Frickey & Jane S. Schacter, Cases and Materials on Constitutional Law 865–1078 (6th ed. 2019).Show More The statutes and cameral rules that dictate how legislative chambers operate set out procedures for lawmaking, but they do not expressly instruct members how to act.²2.See generally Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress (5th ed. 2017); Walter J. Oleszek, Mark J. Oleszek, Elizabeth Rybicki & Bill Heniff, Jr., Congressional Procedures and the Policy Process (10th ed. 2016).Show More And political science research on legislative behavior typically focuses on the goals that legislators pursue—most notably reelection, but also other goals³3.The canonical account “conjure[s] up a vision of United States congressmen as single-minded seekers of reelection” and argues that such a vision “fits political reality rather well.” David R. Mayhew, Congress: The Electoral Connection 5, 6 (1974). See also Richard F. Fenno, Jr., Congressmen in Committees 1 (1973) (describing House members’ goals as “re-election, influence within the House, and good public policy”).Show More—in a way that is not directly tied to law.

But legislators, like all of us, act in the shadow of the law.⁴4.Cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).Show More Legal rules, doctrines, and institutional structures establish the landscape in which legislators act.⁵5.This Article uses the term “rules” broadly to include legal rules from sources as diverse as constitutional provisions, statutes, cameral rules, judicial doctrines, and parliamentary precedents.Show More Law determines what courses of action are permitted and forbidden to legislators. It dictates which approaches to representation will be easier and which will be more difficult in practice. A focus on legislators’ goals alone therefore only tells part of the story of legislative behavior. A fuller understanding of legislative representation requires observing how law creates the environment in which legislators pursue their goals. To put the point simply, law shapes representation.

Scholars of the law of democracy know this well. Election law, redistricting law, and campaign finance law matter precisely because law shapes representation. Legislators need to be responsive to their primary constituencies, which can pull them away from advocating for the preferences or interests of their electorate’s median voter.⁶6.See infra Subsection II.A.3.Show More Legal rules dictate the size, shape, and demographic composition of districts, which in turn affect the representation that legislators provide.⁷7.See infra Subsection II.A.4.Show More Legislators receiving campaign contributions from outside their districts might at times be more responsive to non-constituent donors than to their constituents.⁸8.See infra Section II.B.Show More And so forth.

But another, much less examined body of law matters as well: the law governing how legislatures organize themselves, how the legislative process is structured, and how members may or may not behave while in office. The law of democracy literature has not traditionally encompassed these topics.⁹9.The leading law of democracy casebook does not cover internal legislative dynamics. See Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes & Nathaniel Persily, The Law of Democracy: Legal Structure of the Political Process (5th ed. 2016).Show More To better understand legislative decision making, however, the law governing how legislatures operate is necessarily a part of the story. Consider the following examples:

A senator wishes to vote contrary to her party’s position on a high-profile issue because the party line runs counter to the preferences and interests of her constituents. The senator votes with her party, however, because party leaders threaten to strip her of a powerful committee chairmanship if she defects.¹⁰10.See infra Section III.C.Show More
A House member committed to representing his constituency must vote on a foreign aid bill with no obvious effect on his constituents and about which his constituents do not have a clear preference. He attempts to introduce an amendment to give the bill local relevance, but the amendment is barred as not germane under House rules.¹¹11.See infra Subsection III.A.1.Show More
A senator wishes to achieve a policy outcome favored by her constituents or by a key interest group within her state, but which an overwhelming majority of the Senate opposes. Despite being outnumbered, the senator places a “hold” on legislation that is a priority for her party and refuses to drop the hold until her demands are met.¹²12.See infra Subsection III.A.2.Show More
A state legislator is trying to decide how to vote on a highly technical bill, which requires economic and scientific expertise in order to be fully understood. The legislator serves in a chamber with little staffing capacity, however, and the only information that he can find about the bill’s likely impacts comes from an industry source with a strong financial interest in the bill.¹³13.See infra Subsection III.B.3.Show More As a result, the legislator must cast his vote based on incomplete or biased information.

These examples show that whoever legislators are trying to represent, they do so within a rich institutional context. Some rules, like House germaneness requirements, constrain what rank-and-file legislators may do. Others, like Senate holds, empower legislators. Still others, like rules enabling party leaders to strip committee chairmanships, shape the various pressures legislators face. Even rules which expand or diminish legislative capacity shape responsiveness, though in more subtle ways. In each case, legislative organization helps determine how legislators behave.

This Article examines how law shapes representation. It takes a legislator’s point of view of public law, looking to how law shapes legislators’ choices and incentives. In so doing, it devotes equal time to familiar law of democracy topics and to less familiar issues of legislative organization. It considers a sampling of the many different sorts of legal rules that create the environment in which legislators act. Some of the rules that the Article discusses are formally part of constitutional law, grounded in constitutional text and precedent. Most are part of the small-“c” constitution: the “set of rules and norms and institutions that guide the process of government.”¹⁴14.Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1127 (2013); see also A.V. Dicey, The Law of the Constitution 20 (J.W.F. Allison ed., 2013) (“[Constitutional law] includes (among other things) all rules which define the members of the sovereign power, all rules which regulate the relation of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority.”).Show More

In taking this approach, this Article makes three principal contributions. It shows how the law of legislative representation is pluralist, pulling legislators in competing directions. It centers the role of legislative organization, arguing that reforms to a legislature’s internal operations can at times serve as alternate means of achieving the same goals sought by proponents of electoral reforms. And it contends that theorists of representation cannot fully understand that concept without attending to the ways in which it is constructed by law.

First, this Article’s analysis shows that both the law of democracy and legislative organization are pluralist about representation. Elements of each area of law pull legislators in competing directions. Rather than pointing legislators toward one type of representation or another, the law enables and encourages legislative responsiveness to each of three groups: constituents, interest groups, and party leaders.¹⁵15.The groups are conceptually distinct, so this Article largely considers them separately. But they can overlap in practice: many constituents are also loyal partisans, many constituents are also active members of interest groups (either centered within or outside of the constituency), and interest groups play a key role in constituting and supporting political parties.Show More These groups each have the ability to reward or punish legislators. Knowing this, legislators have incentives to attend to the preferences and interests of each. On any given issue, understanding why a legislator behaves as they do often requires looking to their constituents, to relevant interest groups, and to party leaders. Pluralist approaches to legislative representation have long existed in political theory; this Article argues that U.S. law likewise takes a pluralist approach to representation.¹⁶16.See infra Section I.C.Show More

This pluralism is not only a theoretical way of understanding representation; it also provides insight on possible reforms. Consider the frequent criticism that Congress and state legislatures are overly responsive to corporate interests or the wealthy.¹⁷17.See infra note 25 and accompanying text.Show More The most obvious way to reduce the power of these interests is to do so directly, hence well-known proposals for campaign finance reform.¹⁸18.See, e.g., Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It (2011).Show More This Article’s analysis suggests an additional possible approach: seeking to reduce corporate power indirectly, through better empowering constituents or party leaders. The theory behind this approach is that, because different groups compete for the limited attention of legislators, empowering some groups (such as constituents or party leaders) can reduce the influence of others (here, certain interest groups). The choice between direct and indirect approaches to reducing corporate power will turn on many factors—some legal, some political, some practical. But attending to law’s pluralism can reveal levers of reform that may not be evident at first glance.¹⁹19.See infra Section IV.B.Show More

Second, the Article shows how fully understanding representation requires focusing on internal legislative organization and procedure. Those topics can be just as consequential for American democracy as more familiar constitutional law and law of democracy topics. Moreover, the same analytic tools that have long been applied in the law of democracy context can be applied to analyze how legislative organization and procedure matter for representation. Rules internal to how legislative bodies operate can either strengthen or attenuate legislators’ responsiveness to their constituents, to interest groups, and to party leaders. As such, legislative organization and procedure should be studied alongside the law of democracy.

A key implication of this insight is that changes to legislative organization and procedure can sometimes be a substitute for changes in traditional law of democracy areas. Reformers have long sought to change how representation operates through changes to voting, redistricting, or campaign finance rules. In some cases, similar shifts in responsiveness could be achieved by making changes to legislative organization and procedure instead. To be sure, changes in internal legislative operations are not a perfect substitute for reform to the law of democracy, which is often (and rightly) viewed as required by principles of political equality. But reform to legislative procedure holds significant promise as a vehicle for achieving some of the ends sought by law of democracy reformers.

Consider again the example of corporate power. The most widely known proposals to restrict corporate power involve changes to campaign finance laws. Even if reform to campaign finance law would reduce legislators’ responsiveness to corporate interests, changes in that area of law require the passage of new legislation and would have to withstand judicial review by a Supreme Court that has consistently struck down such regulation.²⁰20.See infra note 319 and accompanying text.Show More But, even absent campaign finance reform, each chamber of Congress has tools that it could deploy to seek to reduce corporate power. Even modest changes to lobbying regulations, transparency rules, revolving door rules, or congressional capacity could advance some of the goals sought by campaign finance reformers. Such internal changes might reasonably be viewed as second-best solutions, relative to directly reforming campaign finance law. But the difficulty of changing the law in that area warrants allocating more reformist attention to organizational and procedural reforms.²¹21.See infra Section IV.B.Show More

Third, this Article argues that a detailed descriptive account of political institutions and legal rules should be part of our normative theorizing about representation. Political theorists have developed rich accounts of legislative representation and legislators’ duties.²²22.See, e.g., Hanna Fenichel Pitkin, The Concept of Representation (1967); Bernard Manin, The Principles of Representative Government (1997); Andrew Sabl, Ruling Passions: Political Offices and Democratic Ethics (2002); Nadia Urbinati, Representative Democracy: Principles and Genealogy (2006); Suzanne Dovi, The Good Representative (2007); Jane Mansbridge, Rethinking Representation, 97 Am. Pol. Sci. Rev. 515 (2003); Andrew Rehfeld, Representation Rethought: On Trustees, Delegates, and Gyroscopes in the Study of Political Representation and Democracy, 103 Am. Pol. Sci. Rev. 214 (2009); Jane Mansbridge, Clarifying the Concept of Representation, 105 Am. Pol. Sci. Rev. 621 (2011); Andrew Rehfeld, The Concepts of Representation, 105 Am. Pol. Sci. Rev. 631 (2011).Show More Legal scholars have likewise considered legislators’ duties, with recent work arguing that legislators have obligations to act in accordance with the Constitution, to promote good governance, to abide by principles of justice, and to advance the national interest.²³23.See, e.g., Paul Brest, The Conscientious Legislator’s Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585 (1975); Vicki C. Jackson, Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives in Constitutional Democracy, 57 Wm. & Mary L. Rev. 1717 (2016); Neil S. Siegel, After the Trump Era: A Constitutional Role Morality for Presidents and Members of Congress, 107 Geo. L.J. 109 (2018).Show More The arguments for the existence and importance of these duties are often persuasive. This Article seeks to supplement existing work by emphasizing the importance of rules in structuring how legislators behave, and thus whether and how they fulfill whatever duties they have. In particular, its focus on constituents, interest groups, and parties trains our attention on the actors who can plausibly induce legislators to fulfill—or violate—their duties. Most generally, this Article seeks to heed political theorists’ calls for greater sensitivity to institutional arrangements as a part of normative theorizing.²⁴24.See infra notes 321–22 and accompanying text.Show More

My discussion of pluralism should not be taken as an endorsement of how Congress or any other legislature operates in practice. Even if a pluralist account of legislative representation is sound as a matter of theory, and even if the law instantiates that pluralist approach at a high level of generality, the devil is in the details. And there is significant evidence that the practice of representation today is vastly unequal. Political scientists have documented significant capture of the federal and state legislative processes by corporate interests and the wealthy.²⁵25.There is voluminous literature on the degree and mechanisms of these groups’ influence. See, e.g., Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age (2016); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America (2012); Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class (2010); Alexander Hertel-Fernandez, State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States—and the Nation (2019); Kay Lehman Schlozman, Sidney Verba & Henry E. Brady, The Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy (2012); Benjamin I. Page, Jason Seawright & Matthew J. Lacombe, Billionaires and Stealth Politics (2018).For dissenting views of some of this literature, see. e.g., Peter K. Enns, Relative Policy Support and Coincidental Representation, 13 Persps. on Pol. 1053, 1054 (2015) (“I show theoretically and empirically that even on those issues where the preferences of the wealthy and the median diverge . . . policy can (and does) end up about where we would expect if policymakers followed the economic median and ignored the affluent.”); Jeffrey R. Lax, Justin H. Phillips & Adam Zelizer, The Party or the Purse? Unequal Representation in the U.S. Senate, 113 Am. Pol. Sci. Rev. 917, 917 (2019) (“We find that affluent influence is overstated and itself contingent on partisanship . . . . The poor get what they want more often from Democrats. The rich get what they want more often from Republicans, but only if Republican constituents side with the rich. Thus, partisanship induces, shapes, and constrains affluent influence.”).Show More Congress is beset with other challenges as well, including high levels of partisan polarization,²⁶26.See, e.g., Sarah Binder, The Dysfunctional Congress, 18 Ann. Rev. Pol. Sci. 85 (2015); Cynthia R. Farina, Congressional Polarization: Terminal Constitutional Dysfunction?, 115 Colum. L. Rev. 1689 (2015).Show More broad public disapproval,²⁷27.Congress and the Public, Gallup News, https://news.gallup.com/poll/1600/congress-public.aspx [https://perma.cc/C7KV-QRPB] (last visited Jan. 20, 2021) (showing congressional approval ratings not greater than 40%, and frequently less than 20%, over the past fifteen years).Show More and a significant democratic deficit, most notably on account of the apportionment of the Senate and the existence of the filibuster.²⁸28.See, e.g., Robert A. Dahl, How Democratic Is the American Constitution? 46–54 (2d ed. 2003) (criticizing unequal representation in the Senate); Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) 52 (2006) (noting that “the Senate can exercise a veto power on majoritarian legislation passed by the House that is deemed too costly to the interests of small states, which are overrepresented in the Senate” (emphasis omitted)); Adam Jentleson, Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy 5 (2021) (arguing that “from its inception to today, the filibuster has mainly served to empower a minority of predominately white conservatives to override our democratic system”); Frances E. Lee & Bruce I. Oppenheimer, Sizing Up the Senate: The Unequal Consequences of Equal Representation 158–222 (1999) (documenting the policy and financial advantages that accrue to small states on account of Senate representation).Show More For these and other reasons, leading observers have decried Congress as the U.S. government’s “broken branch.”²⁹29.See, e.g., Thomas E. Mann & Norman J. Ornstein, The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (2006).Show More To characterize the law of legislative representation as pluralist is not to defend Congress. To the contrary, one of the virtues of a pluralist picture is that it points toward new avenues for reform.

A brief disclaimer is in order before proceeding. In taking a legislator’s point of view, this Article treats the identity of the legislator as fixed. Holding our hypothetical legislator’s identity constant allows us to better see how manipulating any given legal rule would change the environment in which they operate. This clarity comes at the cost of not engaging with important questions about the role of law in shaping who gets elected in the first instance.³⁰30.Thus, I do not discuss descriptive representation, the idea legislators should share demographic or other characteristics with their constituents. See, e.g., Pitkin, supra note 22, at 60–91 (situating descriptive representation within a broader taxonomy of representation); Jane Mansbridge, Should Blacks Represent Blacks and Women Represent Women? A Contingent “Yes,” 61 J. Pol. 628 (1999) (describing benefits of descriptive representation for disadvantaged groups). Nor do I engage in the debate among social scientists about the relationship between the number of minority representatives and the substantive representation of minority interests in legislative bodies. Compare, e.g., David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress (1997) (arguing that, under certain circumstances, creating majority-minority legislative districts makes the House less likely to adopt legislation favored by African Americans), with Ebonya Washington, Do Majority-Black Districts Limit Blacks’ Representation? The Case of the 1990 Redistricting, 55 J.L. & Econ. 251 (2012) (finding no evidence for the view that majority-minority districts decrease substantive minority representation in Congress).Show More Further, a focus on the choices and incentives facing individual legislators leads to relatively little engagement with some vital system-level design features, including the legislative process’s many veto points,³¹31.See infra note 214 and accompanying text.Show More possible partisan biases in that process,³²32.See, e.g., Jonathan S. Gould & David E. Pozen, Structural Biases in Structural Constitutional Law, 97 N.Y.U. L. Rev. (forthcoming 2022) (manuscript at 24–29) (on file with author).Show More and unequal representation in the U.S. Senate.³³33.See sources cited supra note 28.Show More Critical as these features are to understanding and evaluating Congress, this Article’s focus is instead on how law constructs the day-to-day choices and incentives facing rank-and-file legislators. Even with these limitations, however, a close look at the legal mechanisms bearing on representation can illuminate why legislators act as they do and how they might be incentivized to act differently.³⁴34.In addition, space constraints preclude a full treatment of every type of law that shapes representation. The discussion that follows shows how different mechanisms—some from the law of democracy, some from legislative organization—can ratchet up or down different sorts of responsiveness. But this treatment is illustrative rather than exhaustive. Many other legal rules shape responsiveness, sometimes directly (such as rules concerning access to the franchise) and sometimes indirectly (such as rules regulating the media, which in turn shape the information ecosystem in which legislators operate). More fundamentally, representation is also constituted by foundational institutional design choices, such as the choice of a presidential rather than a parliamentary system, which are beyond my scope here.Show More

The remainder of the Article proceeds as follows. Part I makes the case for a pluralist approach to representation. It argues that legislators have normative reasons to be responsive to their constituents, interest groups, and party leaders, and further argues against categorically placing any one duty or group above all others. The next two Parts show how specific legal rules roughly instantiate a pluralist approach to representation by pulling legislators in competing directions. Part II examines the law of democracy. It notes that the reelection incentive encourages legislative responsiveness to constituents, but it also highlights how several areas of law weaken the links between legislators and their constituents and enable interest groups and party leaders to exercise considerable influence. Part III conducts a similar inquiry for internal legislative organization. It shows how legislative organization can either enhance or constrain the ability of legislators to represent their constituents, the degree of interest group power, and the amount of influence that party leaders have over their rank-and-file members. Part IV turns to implications, both for the scholarly literature and for those seeking to reform a contemporary Congress widely perceived to be broken.

* Assistant Professor of Law, University of California, Berkeley. © 2021 Jonathan S. Gould. For helpful conversations and feedback, I am grateful to Jacob Abolafia, Abhay Aneja, Eric Beerbohm, Gregory Elinson, Dan Farber, Rebecca Goldstein, Vicki Jackson, Olatunde Johnson, Jacob Lipton, Jane Mansbridge, Martha Minow, David Pozen, Bertrall Ross, Nicholas Stephanopoulos, Matthew Stephenson, and commenters at Columbia Law School and Harvard’s Edmund J. Safra Center for Ethics. Thanks to Perry Abdulkadir, Derek Ha, Roger Huddle, Molly Lao, Oscar Sarabia Roman, Oliver Rosenbloom, and Daniel Twomey for excellent research assistance. ↑
See U.S. Const. art. I; see also Daniel A. Farber, William N. Eskridge, Jr., Philip P. Frickey & Jane S. Schacter, Cases and Materials on Constitutional Law 865–1078 (6th ed. 2019). ↑
See generally Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress (5th ed. 2017); Walter J. Oleszek, Mark J. Oleszek, Elizabeth Rybicki & Bill Heniff, Jr., Congressional Procedures and the Policy Process (10th ed. 2016). ↑
The canonical account “conjure[s] up a vision of United States congressmen as single-minded seekers of reelection” and argues that such a vision “fits political reality rather well.” David R. Mayhew, Congress: The Electoral Connection 5, 6 (1974). See also Richard F. Fenno, Jr., Congressmen in Committees 1 (1973) (describing House members’ goals as “re-election, influence within the House, and good public policy”). ↑
Cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979). ↑
This Article uses the term “rules” broadly to include legal rules from sources as diverse as constitutional provisions, statutes, cameral rules, judicial doctrines, and parliamentary precedents. ↑
See infra Subsection II.A.3. ↑
See infra Subsection II.A.4. ↑
See infra Section II.B. ↑
The leading law of democracy casebook does not cover internal legislative dynamics. See Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes & Nathaniel Persily, The Law of Democracy: Legal Structure of the Political Process (5th ed. 2016). ↑
See infra Section III.C. ↑
See infra Subsection III.A.1. ↑
See infra Subsection III.A.2. ↑
See infra Subsection III.B.3. ↑
Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1127 (2013); see also A.V. Dicey, The Law of the Constitution 20 (J.W.F. Allison ed., 2013) (“[Constitutional law] includes (among other things) all rules which define the members of the sovereign power, all rules which regulate the relation of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority.”). ↑
The groups are conceptually distinct, so this Article largely considers them separately. But they can overlap in practice: many constituents are also loyal partisans, many constituents are also active members of interest groups (either centered within or outside of the constituency), and interest groups play a key role in constituting and supporting political parties. ↑
See infra Section I.C. ↑
See infra note 25 and accompanying text. ↑
See, e.g., Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It (2011). ↑
See infra Section IV.B. ↑
See infra note 319 and accompanying text. ↑
See infra Section IV.B. ↑
See, e.g., Hanna Fenichel Pitkin, The Concept of Representation (1967); Bernard Manin, The Principles of Representative Government (1997); Andrew Sabl, Ruling Passions: Political Offices and Democratic Ethics (2002); Nadia Urbinati, Representative Democracy: Principles and Genealogy (2006); Suzanne Dovi, The Good Representative (2007); Jane Mansbridge, Rethinking Representation, 97 Am. Pol. Sci. Rev. 515 (2003); Andrew Rehfeld, Representation Rethought: On Trustees, Delegates, and Gyroscopes in the Study of Political Representation and Democracy, 103 Am. Pol. Sci. Rev. 214 (2009); Jane Mansbridge, Clarifying the Concept of Representation, 105 Am. Pol. Sci. Rev. 621 (2011); Andrew Rehfeld, The Concepts of Representation, 105 Am. Pol. Sci. Rev. 631 (2011). ↑
See, e.g., Paul Brest, The Conscientious Legislator’s Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585 (1975); Vicki C. Jackson, Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives in Constitutional Democracy, 57 Wm. & Mary L. Rev. 1717 (2016); Neil S. Siegel, After the Trump Era: A Constitutional Role Morality for Presidents and Members of Congress, 107 Geo. L.J. 109 (2018). ↑
See infra notes 321–22 and accompanying text. ↑
There is voluminous literature on the degree and mechanisms of these groups’ influence. See, e.g., Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age (2016); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America (2012); Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class (2010); Alexander Hertel-Fernandez, State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States—and the Nation (2019); Kay Lehman Schlozman, Sidney Verba & Henry E. Brady, The Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy (2012); Benjamin I. Page, Jason Seawright & Matthew J. Lacombe, Billionaires and Stealth Politics (2018).
For dissenting views of some of this literature, see. e.g., Peter K. Enns, Relative Policy Support and Coincidental Representation, 13 Persps. on Pol. 1053, 1054 (2015) (“I show theoretically and empirically that even on those issues where the preferences of the wealthy and the median diverge . . . policy can (and does) end up about where we would expect if policymakers followed the economic median and ignored the affluent.”); Jeffrey R. Lax, Justin H. Phillips & Adam Zelizer, The Party or the Purse? Unequal Representation in the U.S. Senate, 113 Am. Pol. Sci. Rev. 917, 917 (2019) (“We find that affluent influence is overstated and itself contingent on partisanship . . . . The poor get what they want more often from Democrats. The rich get what they want more often from Republicans, but only if Republican constituents side with the rich. Thus, partisanship induces, shapes, and constrains affluent influence.”). ↑
See, e.g., Sarah Binder, The Dysfunctional Congress, 18 Ann. Rev. Pol. Sci. 85 (2015); Cynthia R. Farina, Congressional Polarization: Terminal Constitutional Dysfunction?, 115 Colum. L. Rev. 1689 (2015). ↑
Congress and the Public, Gallup News, https://news.gallup.com/poll/1600/congress-public.aspx [https://perma.cc/C7KV-QRPB] (last visited Jan. 20, 2021) (showing congressional approval ratings not greater than 40%, and frequently less than 20%, over the past fifteen years). ↑
See, e.g., Robert A. Dahl, How Democratic Is the American Constitution? 46–54 (2d ed. 2003) (criticizing unequal representation in the Senate); Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) 52 (2006) (noting that “the Senate can exercise a veto power on majoritarian legislation passed by the House that is deemed too costly to the interests of small states, which are overrepresented in the Senate” (emphasis omitted)); Adam Jentleson, Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy 5 (2021) (arguing that “from its inception to today, the filibuster has mainly served to empower a minority of predominately white conservatives to override our democratic system”); Frances E. Lee & Bruce I. Oppenheimer, Sizing Up the Senate: The Unequal Consequences of Equal Representation 158–222 (1999) (documenting the policy and financial advantages that accrue to small states on account of Senate representation). ↑
See, e.g., Thomas E. Mann & Norman J. Ornstein, The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (2006). ↑
Thus, I do not discuss descriptive representation, the idea legislators should share demographic or other characteristics with their constituents. See, e.g., Pitkin, supra note 22, at 60–91 (situating descriptive representation within a broader taxonomy of representation); Jane Mansbridge, Should Blacks Represent Blacks and Women Represent Women? A Contingent “Yes,” 61 J. Pol. 628 (1999) (describing benefits of descriptive representation for disadvantaged groups). Nor do I engage in the debate among social scientists about the relationship between the number of minority representatives and the substantive representation of minority interests in legislative bodies. Compare, e.g., David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress (1997) (arguing that, under certain circumstances, creating majority-minority legislative districts makes the House less likely to adopt legislation favored by African Americans), with Ebonya Washington, Do Majority-Black Districts Limit Blacks’ Representation? The Case of the 1990 Redistricting, 55 J.L. & Econ. 251 (2012) (finding no evidence for the view that majority-minority districts decrease substantive minority representation in Congress). ↑
See infra note 214 and accompanying text. ↑
See, e.g., Jonathan S. Gould & David E. Pozen, Structural Biases in Structural Constitutional Law, 97 N.Y.U. L. Rev. (forthcoming 2022) (manuscript at 24–29) (on file with author). ↑
See sources cited supra note 28. ↑
In addition, space constraints preclude a full treatment of every type of law that shapes representation. The discussion that follows shows how different mechanisms—some from the law of democracy, some from legislative organization—can ratchet up or down different sorts of responsiveness. But this treatment is illustrative rather than exhaustive. Many other legal rules shape responsiveness, sometimes directly (such as rules concerning access to the franchise) and sometimes indirectly (such as rules regulating the media, which in turn shape the information ecosystem in which legislators operate). More fundamentally, representation is also constituted by foundational institutional design choices, such as the choice of a presidential rather than a parliamentary system, which are beyond my scope here. ↑
See, e.g., Philip Pettit, Representation, Responsive and Indicative, 17 Constellations 426, 426 (2010) (“[T]heorists have focused mainly on the responsive variety of representation.”); Pitkin, supra note 22, at 209–10 (defining political representation as “acting in the interest of the represented, in a manner responsive to them,” but recognizing conditions under which representatives may follow the interests, rather than preferences, of the represented); see also Heinz Eulau & Paul D. Karps, The Puzzle of Representation: Specifying Components of Responsiveness, 2 Legis. Stud. Q. 233, 233 (1977) (defining representation in terms of responsiveness). ↑
This Article uses the term “constituents” in its conventional sense of residents of the geographic area (district or state) that elects a legislator. Some have used the term more broadly. See, e.g., Amy Gutmann & Dennis Thompson, Democracy and Disagreement 147 (1996) (distinguishing “electoral” and “moral” constituents). ↑
107 Cong. Rec. 15,292 (2001) (statement of Sen. Patty Murray (D-WA)). ↑
113 Cong. Rec. 359 (2014) (statement of Sen. Johnny Isakson (R-GA)). ↑
113 Cong. Rec. 15,620 (2013) (statement of Rep. Ronald Barber (D-AZ)). ↑
112 Cong. Rec. 15,360 (2011) (statement of Sen. Mary Landrieu (D-LA)). But see Scott Shafer, Showhorses vs. Workhorses: What Makes an Effective US Senator?, S. Cal. Pub. Radio (Oct. 5, 2016), https://scpr.org/news/2016/10/05/65366/showhorses-vs-workhorses-what-makes-an-effective-u/ [https://perma.cc/NR7M-UE6M] (quoting the view of Sen. Patrick Leahy (D-VT) that senators should “[w]ork first for the country”). ↑
Many relationships that legislators have, such as their relationships with interest groups, are informal in character. Nonelectoral mechanisms for the citizenry to engage with legislators do not create formal links between a single legislator and a discrete group of people. Under the once-common practice of formally petitioning Congress, for example, petitions were directed to Congress as a whole, not to specific legislators. See Maggie McKinley, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1136 (2016) (describing petitioning as having “more closely resembled the formal process afforded in courts” than contemporary lobbying).
Normative arguments based on the relationship between a legislator and voters in that legislator’s constituency cannot explain why the legislator owes duties to non-voter constituents such as children, noncitizens, disenfranchised persons, or those who have voluntarily not registered to vote. But it is widely accepted in the United States that legislators should represent all constituents: “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.” See Evenwel v. Abbott, 136 S. Ct. 1120, 1132 (2016). ↑
Exceptions include the few localized issues that garner national attention, but even in those instances legislators representing the affected area typically take the lead. See, e.g., Todd Spangler, Congress Approves at Least $120M for Flint Water Fix, Detroit Free Press (Dec. 10, 2016), https://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/12/10/‌congress-flint-water-funding/95243816/ [https://perma.cc/CB45-E39T]. ↑
See Stephen Ansolabehere, William Leblanc & James M. Snyder Jr., When Parties Are Not Teams: Party Positions in Single-Member District and Proportional Representation Systems, 49 Econ. Theory 521, 535 (2012) (“In the list system, the parties offer a list of candidates running under their label, and the entire national electorate votes for one of the two parties. Parties win shares of seats equal to their shares of the vote. The number of seats won by the party equals the number of seats times the share of seats it deserves.”). ↑
See 2 U.S.C. § 2(c) (requiring single-member districts in the U.S. House); Am. Acad. Arts & Scis., Our Common Purpose: Reinventing American Democracy for the 21st Century 26, 71 (2020), https://amacad.org/sites/default/files/publication/downloads/2020-Democratic-Citizenship_‌Our-Common-Purpose_0.pdf [https://perma.cc/9PFR-3EAP] (noting that only ten states, nearly all of them sparsely populated, use multimember districts to elect state legislators). ↑
See, e.g., John Stuart Mill, Considerations on Representative Government, in On Liberty and Other Essays 303 (John Gray ed., Oxford Univ. Press 1991) (1859) (arguing that without proportional representation, there is necessarily “not equal government, but a government of inequality and privilege”). For an extended analysis of the inequality created by single-member districts, consider Jonathan Rodden’s findings that across western democracies, single-member districts have a consistent and significant pro-rural (and anti-urban) bias. See generally Jonathan Rodden, Why Cities Lose: The Deep Roots of the Urban-Rural Political Divide (2019). ↑
See Robert Richie & Steven Hill, The Case for Proportional Representation, Bos. Rev. (Mar. 1, 1998), http://bostonreview.net/politics/robert-richie-steven-hill-case-proportional-representation [https://perma.cc/9DRG-EKLR]; see also Issacharoff et al., supra note 9, at 609–980 (materials on U.S. jurisprudence illustrating the challenges of fairly achieving minority representation in a system of single-member districts). ↑
Wasted votes have been defined as votes for a losing candidate or votes for a winning candidate in excess of what is needed to prevail. See Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 834 (2015). For a critical perspective on the normative case for proportional representation, see Charles R. Beitz, Political Equality: An Essay in Democratic Theory 123–40 (1989). ↑
Single-member districts have at least one non-geographic benefit as well: they provide an avenue for voters to assess the quality of candidates rather than leaving that work to party leaders. ↑
Cf. Karen Orren & Stephen Skowronek, The Policy State: An American Predicament 6 (1st ed. 2017) (“[W]e argue that policy has expanded its role in American government and society by eroding the boundaries and dissolving the distinctions that once constrained policy’s reach.”). ↑
Mansbridge, Rethinking Representation, supra note 22, at 523 (“Legislators deeply allied with a particular ideological perspective often feel a responsibility to nondistrict constituents from that perspective or group,” especially when “the surrogate representative shares experiences with surrogate constituents in a way that a majority of the legislature does not.”); see also Orren & Skowronek, supra note 49, at 6. ↑
See About the CBC, Congressional Black Caucus, https://cbc.house.gov/about/ [https://perma.cc/J8Q3-AV74] (last visited Jan. 18, 2021). ↑
See Mansbridge, Rethinking Representation, supra note 22, at 523. ↑
Judicial review is often seen as the default means of serving such groups, see, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152–53 n.4 (1938); see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 135–180 (1980). But mechanisms promoting legislative responsiveness to interest groups can accomplish similar results. See, e.g., Daryl J. Levinson, Rights and Votes, 121 Yale L.J. 1286, 1292 (2012) (arguing that legal rules can “allocate decisionmaking power or structure decisionmaking processes in such a way as to stack the deck in favor of desirable outcomes or against undesirable ones”). ↑
See Alexis de Tocqueville, Democracy in America 180–86 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chi. Press 2000) (1835). ↑
See generally, e.g., Robert A. Dahl, Who Governs?: Democracy and Power in an American City (1961); Robert A. Dahl, Pluralist Democracy in the United States: Conflict and Consent (1967). ↑
Robert A. Dahl, Dilemmas of Pluralist Democracy: Autonomy vs. Control 1 (1982). Dahl does warn that interest groups at times use their power “to foster the narrow egoism of their members at the expense of concerns for a broader public good.” Id. ↑
See supra note 25 (citing sources). ↑
See John G. Bullock, Elite Influence on Public Opinion in an Informed Electorate, 105 Am. Pol. Sci. Rev. 496, 497–98 (2011) (reviewing literature on voters’ use of “party cues”). ↑
This account of party loyalty would not require adherence to every party position, but it would require general fidelity to the party’s core priorities or, put in negative terms, that legislators not switch parties between elections or otherwise actively impede their party’s agenda. ↑
E.E. Schattschneider, Party Government 1 (1942); see also Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2385 (2006) (“From nearly the start of the American republic . . . [t]he enduring institutional form of democratic political competition has turned out to be not branches but political parties.”). ↑
Further, many of the most important interest groups in American politics derive their power from serving as key parts of one or the other party’s coalition. ↑
See, e.g., Edmund Burke, Speech to the Electors of Bristol, on His Being Declared by the Sheriffs Duly Elected One of the Representatives in Parliament for that City (1774), reprinted in 2 The Works of the Right Honourable Edmund Burke 96 (John C. Nimmo ed., 1887) (“Parliament is not a congress of ambassadors from different and hostile interests . . . Parliament is a deliberative assembly of one nation, with one interest, that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member, indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of Parliament.”); see also Documents Relating to New-England Federalism, 1800–1815 at 195 (Henry Adams ed., 1877) (“The Senate of the United States is a branch of the legislature; and each Senator is a representative, not of a single State, but of the whole Union. His vote is not the vote of his State, but his own individually; and his constituents have not even the power of recalling him, nor of controlling his constitutional action by their instructions.” (quoting John Adams)); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837–38 (1995) (“Members of Congress are chosen by separate constituencies . . . they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government.”). ↑
See, e.g., Gary W. Cox & Mathew D. McCubbins, Setting the Agenda: Responsible Party Government in the U.S. House of Representatives 218 (2005) (“When a party successfully influences one of its members’ votes this typically means that the member will cast a vote at odds with her constituents’ opinions.”); Jamie L. Carson, Gregory Koger, Matthew J. Lebo & Everett Young, The Electoral Costs of Party Loyalty in Congress, 54 Am. J. Pol. Sci. 598, 601 (2010) (“If [legislators] vote with the party on controversial or highly salient issues, they risk alienating their political base in the next election. But, if they repeatedly vote in line with their district and against the party, then they may lose favor with the party leadership and risk sanctions.” (internal citation omitted)). ↑
See Carson et al., supra note 63, at 601; see also id. at 598 (discussing findings suggesting that party loyalty on divisive votes can be a political liability for incumbent House members). In addition to party leaders and general election electorates, legislators must also be mindful of their primary electorates, which are often more extreme than either party leaders or their constituencies as a whole. See infra Subsections II.A.3, II.C.2. ↑
Senator John McCain’s (R-AZ) vote against repealing the Affordable Care Act in 2017 is illustrative. Repeal was a top policy priority of Republican Party leaders in both the legislative and executive branches, but it would have cost Arizona’s Medicaid program $7.1 billion over nine years. This was front of mind for McCain, who crassly stated his fear that “Arizona was about to get screwed” by repeal. Paige Winfield Cunningham, The Health 202: Here’s Why John McCain Voted ‘No’ on Health Care, Wash. Post (Aug. 4, 2017), https://www.washingtonpost.com/news/powerpost/paloma/the-health-202/2017/08/04/the-health-202-here-s-why-john-mccain-voted-no-on-health-care/59837b3d30fb045fdaef10f6 [https://perma.cc/5M9M-F4RU]. ↑
The relationship between responsiveness to parties and interest groups is more complex, given some political scientists’ views of the parties themselves as merely collections of interest groups. See, e.g., Kathleen Bawn et. al., A Theory of Political Parties: Groups, Policy Demands and Nominations in American Politics, 10 Persps. on Pol. 571, 571 (2012) (“We propose a theory of political parties in which interest groups and activists are the key actors, and coalitions of groups develop common agendas and screen candidates for party nominations based on loyalty to their agendas. This theoretical stance contrasts with currently dominant theories, which view parties as controlled by election-minded politicians.”). Regardless of the ultimate foundation of the political parties, however, this Article’s discussion of legislative responsiveness to parties focuses on responsiveness to party leaders, rather than the interest groups that help make up the parties. ↑
Dennis F. Thompson, Political Ethics and Public Office 99 (1987); see also Amy Gutmann & Dennis Thompson, The Theory of Legislative Ethics, in Representation and Responsibility: Exploring Legislative Ethics 171 (Bruce Jennings & Daniel Callahan eds., 1985) (“Even if we were able to spell out all the possible roles a legislator might legitimately adopt, we would not yet have a theory of representation, because we would not have indicated which role a representative ought to adopt. Such a theory, however, is probably not possible in [the] face of the manifold conditions that affect the choice of roles. General principles instructing legislators on which role to adopt usually prove inadequate.”). These ideas have a long lineage in both democratic theory, see, e.g., Mill, supra note 45, at 373–83 (arguing against legislative instruction), and in political science, see, e.g., Warren E. Miller & Donald E. Stokes, Constituency Influence in Congress, 57 Am. Pol. Sci. Rev. 45, 56 (1963) (arguing that “no single tradition of representation fully accords with the realities of American legislative politics” and describing instead “a mixture, to which the Burkean, instructed-delegate, and responsible-party models all can be said to have contributed elements”). ↑
More formally, under a pluralist approach to legislative representation, the concept implicates multiple values that are not reducible either to each other or to any single supervalue. Cf. Elinor Mason, Value Pluralism, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2018), https://plato.stanford.edu/entries/value-pluralism/ [https://perma.cc/7YNG-J3NX]. This understanding of pluralism, drawn from moral philosophy, is distinct from the term’s use by political scientists to describe the work of Robert Dahl and his followers. See supra notes 55–56 and accompanying text. ↑
See, e.g., Burke, supra note 62, at 96; Mill, supra note 45, at 354; Pitkin, supra note 22, at 146, 209. ↑
See Mansbridge, Clarifying the Concept of Representation, supra note 22, at 624–28; Rehfeld, Representation Rethought, supra note 22, at 221–25. ↑
On these and other modalities of interpretation, see Philip Bobbitt, Constitutional Fate: Theory of the Constitution 3–119 (1982); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1192–1209 (1987). ↑
See, e.g., Ethan J. Leib, The Perpetual Anxiety of Living Constitutionalism, 24 Const. Comment. 353, 358 n.15 (2007) (noting “the relative weight originalists give certain modalities as compared to the living constitutionalists”). ↑
See, e.g., Philip Bobbitt, Constitutional Interpretation 155–62 (1991) (arguing that when multiple modalities are in tension the conscience of the judge should control, rather than a fixed hierarchy of modalities); Fallon, supra note 71, at 1243–46 (setting out a hierarchy of modalities, but characterizing the hierarchy as tentative and noting that it will not definitively resolve all cases). ↑
Arguments based on partisan advantage, religious dogma, or crude cost-benefit analysis are widely regarded as out of bounds. See Bobbitt, supra note 71, at 6; David E. Pozen & Adam M. Samaha, Anti-Modalities, 119 Mich. L. Rev. 729, 746–68 (2021). ↑
See 1 Annals of Cong. 761–73 (1789) (deliberations in House of Representatives over inclusion of a right to instruct in a draft of the First Amendment); see also Cook v. Gralike, 531 U.S. 510, 521 (2001) (“[T]he First Congress rejected a proposal to insert a right of the people ‘to instruct their representatives’ into what would become the First Amendment.” (internal citation omitted)). ↑
Gordon S. Wood, The Creation of the American Republic: 1776–1787, at 189 (1969). ↑
See, e.g., Richard A. Primus, The American Language of Rights 96 (1999) (describing “the strength of support for a right to instruct during the Founding” and noting that “the idea was often popular, codified into more than one state constitution, and required serious debate in Congress”). ↑
This is not to say that politics would have been excised from legislative representation. To the contrary, constituents, interest groups, and parties would have clashed in the process of writing instructions. But a right to instruct would have made representation simpler for the legislator, who would have merely been tasked with following the instructions that they were given. ↑
See, e.g., G.C. Malhotra, Anti-Defection Law in India and the Commonwealth (2005); Csaba Nikolenyi, The Adoption of Anti-Defection Laws in Parliamentary Democracies, 15 Election L.J. 96 (2016); Csaba Nikolenyi & Shaul R. Shenhav, The Constitutionalisation of Party Unity: The Origins of Anti-Defection Laws in India and Israel, 21 J. Legis. Stud. 390 (2015); Kenneth Janda, Laws Against Party Switching, Defecting, or Floor Crossing in National Parliaments (Legis. Reg. of Pol. Parties, Working Paper No. 2, 2009), http://www.partylaw.leidenuniv.nl/uploads/wp0209.pdf [https://perma.cc/K8D3-582G]. ↑
This Article focuses only on legislators’ lawmaking activities and brackets the many non-legislative activities that they regularly engage in. See, e.g., Mayhew, supra note 3, at 49–73 (discussing ways in which legislators seek to improve their public reputations); Joshua Bone, Stop Ignoring Pork and Potholes: Election Law and Constituent Service, 123 Yale L.J. 1406 (2014) (discussing provision of constituent services). ↑
This is a claim about the incentives that law creates. As a general matter, while law shapes incentives, it does not determine legislators’ normative duties or alter whatever background duties they have. But legislators do have a general “fundamental natural duty . . . to support and to comply with just institutions,” John Rawls, A Theory of Justice 115 (1971), and the requirements imposed by that duty will differ depending on the content of legislative organization and procedure. Moreover, law might affect how legislators perceive their normative duties, even when it does not affect the content of those duties. Cf. Bert I. Huang, Law and Moral Dilemmas, 130 Harv. L. Rev. 659, 688–95 (2016) (reviewing The Trolley Problem Mysteries (2015)) (showing that liability rules influence experimental subjects’ intuitions about moral duties). ↑
See, e.g., Nicholas O. Stephanopoulos, Aligning Campaign Finance Law, 101 Va. L. Rev. 1425, 1428 (2015) (arguing that campaign finance bears on the “interest [in] the promotion of alignment between voters’ policy preferences and their government’s policy”); Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 Mich. L. Rev. 1385, 1391 (2013) (arguing that law of democracy doctrines “impl[y] a commitment to a particular, contested theory of representation”); Bruce E. Cain, Moralism and Realism in Campaign Finance Reform, 1995 U. Chi. Legal F. 111, 134 (noting an “emerging consensus that current practices in campaign finance are undermining the one person, one vote logic of representation in the single-member voting system”). ↑
See supra note 44 and accompanying text. Intuitive as single-member districts are in the United States, democratic representation does not require geographic districting. See, e.g., Basic Law: the Knesset § 4, translated in Israel’s Written Constitution 27 (5th ed. 2006) (providing that Israel’s parliament be elected in a nationwide, proportional election). Nor, in earlier periods, did all view representation as requiring elections at all. See, e.g., Quentin Skinner, Hobbes on Representation, 13 Eur. J. Phil. 155, 175 (2005) (discussing Thomas Hobbes’s account of a king representing the people); Alexander A. Guerrero, Against Elections: The Lottocratic Alternative, 42 Phil. & Pub. Affs. 135, 154–55 (2014) (noting the selection of public officials by lottery in ancient Athens and in late-medieval and early-renaissance Italy). ↑
Frances E. Lee, Geographic Representation and the U.S. Congress, 67 Md. L. Rev. 51, 53 (2007). While most Americans take geographic constituencies for granted, Lee contrasts U.S. House elections with elections in nearly all other democracies, which have “implicitly acknowledged that political parties are more important as expressions of voters’ values and interests than their local concerns, and hence have adopted some form of [proportional representation].” Id. ↑
See Mayhew, supra note 3, at 16–17 (“Reelection underlies everything else, as indeed it should if we are to expect that the relation between politicians and the public will be one of accountability.”). ↑
Most activities other than voting (such as lobbying or making campaign contributions) are not limited to constituents alone. See supra Section II.B, Subsections III.B.1–2. But at least one other area of law likewise treats the legislator-constituent relationship as distinct: the franking privilege allows members of Congress to send postage-free mailings to constituents but not to non-constituents. 39 U.S.C. § 3210(a)(7) (2018); see also Benjamin Ginsberg & Kathryn Wagner Hill, Congress: The First Branch 83 (2019) (discussing franking). ↑
See, e.g., Stephen Ansolabehere & Shiro Kuriwaki, Congressional Representation: Accountability from the Constituent’s Perspective, Am. J. Pol. Sci. (forthcoming) (manuscript at 29–30), https://osf.io/preprints/socarxiv/zuskq [https://perma.cc/SN5U-M79X] (arguing that “constituents hold their representatives accountable for their votes on key legislative decisions,” and providing evidence showing that “voters can punish representatives with whom they disagree on legislative decisions, even if the representative is a copartisan”). Evidence also suggests that legislators want to be responsive to constituent opinions, at least in some circumstances. See, e.g., Daniel M. Butler & David W. Nickerson, Can Learning Constituency Opinion Affect How Legislators Vote? Results from a Field Experiment, 6 Q.J. Pol. Sci. 55 (2011) (providing a randomly selected group of state legislators with public opinion data from their constituents and finding that legislators who received the public opinion data were considerably more likely to vote in line with constituent opinion than those who did not). ↑
See Eulau & Karps, supra note 35, at 235 (“[R]epresentatives are influenced in their conduct by many forces or pressures or linkages other than those arising out of the electoral connection and . . . restricting the study of representation to the electoral connection produces a very limited vision of the representational process.”). ↑
See Benjamin G. Bishin, Tyranny of the Minority: The Subconstituency Politics Theory of Representation 10 (2009) (developing a theory of “subconstituency” representation, defined as occurring “when politicians advocate the preferences of groups of intense citizens over those of the majority in a district”). ↑
Mechanisms that loosen constituent control reduce only the likelihood of a delegate approach to representation; one might still think that room remains for legislators to act as trustees. Cf. supra notes 69–70 and accompanying text (discussing the delegate-trustee distinction). But legislators who are not incentivized to act as delegates for the preferences of their constituents are not likely to turn to trustee-style representation. Instead, they are likely to opt for responsiveness to groups other than their constituents, such as interest groups from outside their districts or their political parties. See infra notes 116–17 and accompanying text (elaborating on this dynamic).
Design choices that weaken responsiveness to constituents are not necessarily unjustified, as there are often other reasons to support such designs. Longer terms, for example, allow legislators to accumulate expertise and incentivize legislators to invest energy in the policymaking process. See, e.g., The Federalist No. 64, at 392 (John Jay) (“The duration [of Senate terms] prescribed is such as will give them an opportunity of greatly extending their political informations, and of rendering their accumulating experience more and more beneficial to their country.”); Rocío Titiunik, Drawing Your Senator From a Jar: Term Length and Legislative Behavior, 4 Pol. Sci. Res. & Methods 293, 293 (2016) (using random assignment of term length in three state senates to show that senators serving shorter terms abstain more often and introduce fewer bills than those serving longer terms). Similar arguments could be made in support of other mechanisms that temper electoral accountability to constituents. ↑
U.S. Const. art. I, § 2, cl. 1 (House terms of two years); id. art. I, § 3, cl. 1 (Senate terms of six years); see Nat’l Conf. of State Legislatures, Number of Legislators and Length of Terms in Years (Aug. 9, 2019), https://www.ncsl.org/research/about-state-legislatures/‌number-of-legislators-and-length-of-terms.aspx [https://perma.cc/T4FQ-QQ4G] (state legislative terms of two or four years). ↑
Institutional designers also use term length to shape the extent of accountability in non-legislative contexts. See, e.g., U.S. Const. art. III, § 1 (life tenure during good behavior for federal judges); 28 U.S.C. § 532 note (ten-year term for FBI directors), 12 U.S.C. § 241 (fourteen-year terms for members of the Federal Reserve Board of Governors). ↑
See Recall of State Officials, Nat’l Conf. of State Legislatures (July 8, 2019), https://www.ncsl.org/research/elections-and-campaigns/recall-of-state-officials.aspx [https://perma.cc/C68U-KZNG]. ↑
See, e.g., Mont. Code Ann. § 2-16-603 (2019) (requiring, for recall, “[p]hysical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of [certain enumerated] felony offense[s]”); R.I. Const. art. IV, § 1 (requiring, for recall, a “general officer who has been indicted or informed against for a felony, convicted of a misdemeanor, or against whom a finding of probable cause of violation of the code of ethics has been made by the ethics commission”). ↑
Heather Asiyanbi, Review: Road to Recall for State Sen. Van Wanggaard, Patch (Jan 16, 2012, 2:04 AM), https://patch.com/wisconsin/mountpleasant/review-road-to-recall-for-state-sen-van-wanggaard [https://perma.cc/XK8J-QD3E]. ↑
Lynn Bartels, Kurtis Lee & Joey Bunch, Colorado Senate President John Morse, State Sen. Angela Giron Ousted, Denver Post (Apr. 28, 2016, 9:44 AM), https://www.denverpost.com/2013/09/10/colorado-senate-president-john-morse-state-sen-angela-giron-ousted/ [https://perma.cc/EH66-5DHF]. ↑
The Term-Limited States, Nat’l Conf. of State Legislatures (Nov. 12, 2020), https://www.ncsl.org/research/about-state-legislatures/chart-of-term-limits-states.aspx [https://perma.cc/76KV-7HE3]. ↑
See Alan Greenblatt, Term Limits Could Hurt Republicans in 2018, Governing (Aug. 16, 2017), https://www.governing.com/archive/gov-term-limits-state-legislative-republicans-2018. html [https://perma.cc/94AY-M5YB]. ↑
See, e.g., Institutional Change in American Politics: The Case of Term Limits (Karl T. Kurtz, Bruce Cain & Richard G. Niemi eds., 2007); John M. Carey, Richard G. Niemi & Lynda W. Powell, Term Limits in State Legislatures (2000). ↑
See Carey et al., supra note 99, at 41–64 (providing evidence of term limits’ effects on legislative behavior). ↑
See, e.g., Justin Grimmer, Appropriators Not Position Takers: The Distorting Effects of Electoral Incentives on Congressional Representation, 57 Am. J. Pol. Sci. 624 (2013) (showing that senators in safer seats more frequently take positions on national issues than senators from more competitive seats). ↑
Legislators from seats that are safe in the general election may nonetheless face competition in party primaries. See infra Subsection II.A.3. ↑
Bush v. Vera, 517 U.S. 952, 964 (1996) (citing cases). ↑
Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 597 (2002). ↑
See, e.g., Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stan. L. Rev. 643, 644 (1998) (“This article explores the ways in which dominant parties manage to lock up political institutions to forestall competition, with a principal focus on the failure of the institution best positioned to destabilize these lockups, the United States Supreme Court, to develop a theoretical framework that would enable effective judicial performance of this role.”). ↑
See Issacharoff, supra note 104, at 615 (describing competition as “critical to the ability of voters to ensure the responsiveness of elected officials to the voters’ interests through the after-the-fact capacity to vote those officials out of office”). ↑
Mayhew, supra note 3, at 45. ↑
See Shigeo Hirano & James M. Snyder, Jr., Primary Elections in the United States 1–2 (2019) (providing examples). ↑
See David W. Brady, Hahrie Han & Jeremy C. Pope, Primary Elections and Candidate Ideology: Out of Step with the Primary Electorate?, 32 Legis. Stud. Q. 79 (2007) (empirically showing that congressional candidates position themselves closer to primary electorates than to median district preferences). ↑
See, e.g., Joseph Bafumi & Michael C. Herron, Leapfrog Representation and Extremism: A Study of American Voters and Their Members in Congress, 104 Am. Pol. Sci. Rev. 519, 519 (2010) (using roll-call and public opinion data to show that “members of Congress are more extreme than their constituents” and that “when a congressional legislator is replaced by a new member of the opposite party, one relative extremist is replaced by an opposing extremist”). ↑
Bishin, supra note 89, at 120 (quoting Sen. Rick Santorum (R-PA), as reported by Dennis Roddy, How Santorum Advanced the Gay-Rights Debate in the Wrong Way, Pitt. Post-Gazette, Apr. 27, 2003 at B1). ↑
Preferences and interests are conceptually distinct from demographic characteristics such as race, ethnicity, class, and so forth, but they are often highly correlated. The importance of demographics to politics both explains and justifies the fact that empirical work measuring the extent of a district’s homogeneity or heterogeneity often does so by reference to demographic variables. ↑
See, e.g., Matthew S. Levendusky & Jeremy C. Pope, Measuring Aggregate‐Level Ideological Heterogeneity, 35 Legis. Stud. Q. 259, 260–61 (2010) (“If more constituents fundamentally disagree about an issue, then more constituents will always be unhappy with any decision the legislator makes and may therefore be receptive to a potential challenger. When representing a heterogeneous district, a legislator must solve a more complex decision-making calculus, not only for roll-call votes, but for time and resource allocation.”). ↑
Nicholas O. Stephanopoulos, Redistricting and the Territorial Community, 160 U. Pa. L. Rev. 1379, 1393 (2012) (“[H]eterogeneous districts should pose a greater representational challenge since they make it trickier both to discern districts’ needs and to satisfy them effectively.”); see also Prosser v. Elections Bd., 793 F. Supp. 859, 863 (W.D. Wis. 1992) (per curiam) (“[R]epresentative democracy cannot be achieved merely by assuring population equality across districts. To be an effective representative, a legislator must represent a district that has a reasonable homogeneity of needs and interests; otherwise the policies he supports will not represent the preferences of most of his constituents.”). ↑
Ginsberg & Hill, supra note 86, at 84–85 (discussing Sen. Jeff Bingaman (D-NM)). ↑
See generally Bishin, supra note 89 (furnishing a “subconstituency theory” of representation). ↑
Nicholas O. Stephanopoulos, Spatial Diversity, 125 Harv. L. Rev. 1903, 1907 (2012); see also id. at 1945–46 (“A district’s underlying partisan orientation was thus a far better predictor of its member’s voting record if the district was highly heterogeneous. If the district was highly homogeneous, then partisan slant was a much less significant factor, and, to reiterate, residents’ actual characteristics were much more influential. . . . Elected officials from spatially diverse districts are indeed more sensitive to partisan pressures than to the evident interests of their constituents.” (footnotes omitted)); Elisabeth R. Gerber & Jeffrey B. Lewis, Beyond the Median: Voter Preferences, District Heterogeneity, and Political Representation, 112 J. Pol. Econ. 1364 (2004) (finding that legislators in more homogenous districts are more constrained by median voter preferences); Michael Bailey & David W. Brady, Heterogeneity and Representation: The Senate and Free Trade, 42 Am. J. Pol. Sci. 524 (1998) (finding that on trade-related issues, state-specific characteristics were predictive of senators’ votes in more homogeneous states, while ideology and party were more predictive of votes by senators from more heterogeneous states). ↑
See Nat’l Conf. of State Legislatures, 2010 Constituents Per State Legislative District Table (last visited Jan. 22, 2021), https://www.ncsl.org/research/about-state-legislatures/‌2010-constituents-per-state-legislative-district.aspx [https://perma.cc/365Q-VNR8]. ↑
See id. ↑
See Josh Whitehead, A Look at City Council Size Around the Country, Smart City Memphis (May 3, 2010), https://www.smartcitymemphis.com/2010/05/a-look-at-city-councils-around-the-country/ [https://perma.cc/X853-X8HA]. ↑
Drew DeSilver, U.S. Population Keeps Growing, but House of Representatives is Same Size as in Taft Era, Pew Rsch. Ctr. (May 31, 2018), https://www.pewresearch.org/fact-tank/2018/05/31/u-s-population-keeps-growing-but-house-of-representatives-is-same-size-as-in-taft-era/ [https://perma.cc/2J9A-76PU] (“[T]he representation ratio has more than tripled—from one representative for every 209,447 people in 1910 to one for every 747,184 as of last year [2017].”). ↑
See id. ↑
The state constitution sets the size of the House of Representatives at 150 members, Tex. Const. art. III, § 2, while the state’s population rose from slightly over 11 million in 1970 to slightly over 28 million in 2017, Tex. State Libr. & Archives Comm’n, United States and Texas Populations 1850–2017, https://www.tsl.texas.gov/ref/abouttx/census.html [https://perma.cc/8AGW-DWMW]. ↑
See 52 U.S.C. § 10301(a) (barring practices which “result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color”); see also Thornburg v. Gingles, 478 U.S. 30, 50–51 (1986) (enumerating factors for evaluating vote-dilution claims). ↑
Majority-minority districts “are usually heterogeneous with respect to both race and other politically salient factors.” Nicholas O. Stephanopoulos, Our Electoral Exceptionalism, 80 U. Chi. L. Rev. 769, 817 (2013). Because otherwise disparate communities often have to be brought together to form majority-African American districts, those districts are often “more diverse than their peers with respect to crucial factors other than African American background, such as socioeconomic status, urban versus suburban location, and Hispanic ethnicity.” Id. at 818 & n.223. ↑
In holding that certain majority-minority districts violate the Equal Protection Clause, the Supreme Court lamented in Shaw v. Reno that districts included individuals who were “widely separated by geographical and political boundaries.” 509 U.S. 630, 647 (1993). This was exemplified, for the Court, by a North Carolina district that moved “in snakelike fashion through tobacco country, financial centers, and manufacturing areas.” Id. at 635. ↑
Stephanopoulos, supra note 125, at 816 fig.3 (cataloguing these and other districting criteria with respect to whether they are diversifying or homogenizing); see also Nat’l Conf. of State Legislatures, Redistricting Criteria, (Apr. 23, 2019), https://www.ncsl.org/research/‌redistricting/redistricting-criteria.aspx [https://perma.cc/WQ8T-AQKG] (providing an overview of districting criteria used in each state).
Before leaving the topic of district composition, note a tension between district homogeneity and district competitiveness. Greater homogeneity and greater competitiveness each promote legislative responsiveness to constituents, but those two features of districts can be at cross-purposes with one another: a district in which residents’ political preferences are more homogenous will be less competitive, and a district that is more competitive will necessarily contain a degree of preference diversity. This tension points toward two distinct ways of promoting an electoral connection between legislators and constituents. Competitiveness can promote legislators’ attending to their districts, given the constant risk that they lose reelection, but the diversity that necessarily accompanies competitive districts means that legislators will at times have no choice but to prioritize some constituents above others. Homogeneity can make it easier for legislators to represent all of their constituents, but sufficient homogeneity to enable that sort of representation can give rise to safe seats in which legislators are at no risk of losing general elections, which can also undermine legislators’ connections with their constituencies. It is not clear what sort of district—and what precise blend of competitiveness and homogeneity—best enables legislators’ responsiveness to their constituencies. But it is clear that district composition matters for how legislators go about representing their constituents. ↑
Compare, e.g., Thomas Stratmann, Can Special Interests Buy Congressional Votes? Evidence from Financial Services Legislation, 45 J.L. & Econ. 345, 345 (2002) (“I find evidence that changes in contribution levels determine changes in roll call voting behavior.”), with, e.g., Stephen Ansolabehere, John M. de Figueiredo & James M. Synder Jr., Why Is There so Little Money in U.S. Politics?, 17 J. Econ. Persps. 105, 125 (2003) (“It doesn’t seem accurate to view campaign contributions as a way of investing in political outcomes.”). See also Lynda W. Powell, The Influence of Campaign Contributions on the Legislative Process, 9 Duke J. Const. L. & Pub. Pol’y 75 (2014) (reviewing relevant literature). ↑
The convergence between donor interests and public policy has several possible causes: the time that legislators spend meeting with donors, legislators receiving self-serving information from donors, or legislators receiving positive or negative feedback from donors about their performance. See, e.g., Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persps. on Pol. 564, 567 (2014). ↑
See Richard Briffault, Of Constituents and Contributors, 2015 U. Chi. Legal F. 29, 55–60 (discussing VanNatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998), which struck down an Oregon ban on state candidates accepting any contributions from outside of the districts in which they are running, and Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2004), rev’d on other issues sub nom. Randall v. Sorrell, 548 U.S. 230 (2006), which struck down a Vermont law imposing a 25% cap on what percentage of funds state candidates, political parties, and PACs could accept from outside the state); George J. Somi, The Death of Non-Resident Contribution Limit Bans and the Birth of the New Small, Swing State, 28 Wm. & Mary Bill Rts. J. 995, 1002–11 (2020) (discussing VanNatta, Landell, and other litigation on the topic); see also, e.g., Thompson v. Hebdon, 909 F.3d 1027, 1031, 1041–43 (9th Cir. 2018) (striking down an Alaska law that limited state candidates from accepting more than $3,000 per year from out-of-state contributors by concluding that a state interest in combatting undue influence of donations by non-constituents “is no longer sound after Citizens United and McCutcheon”). ↑
572 U.S. 185 (2014). ↑
Id. at 227 (plurality opinion). ↑
See Verified Complaint at 5, 11–12, McCutcheon v. FEC, 893 F. Supp. 2d 133 (D.D.C. 2012) (No. 1:12-cv-01034-JEB). ↑
See Briffault, supra note 130, at 62. ↑
See id. at 39–43. For state-level elections, rules allowing campaign contributions to cross state lines “allow[] individuals who feel alienated from their own state government to affiliate with another state government.” Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077, 1140 (2014). ↑
See, e.g., Lucia Geng, From South Carolina to Maine, Out-of-State Donors Give Big in Senate Races, Ctr. for Responsive Pol. (Oct. 22, 2020, 11:57 AM), https://www.opensecrets.org/news/2020/10/senate-races-outstate-donors [https://perma.cc/‌Q2UQ-WZV6]; Bill Allison & Aaron Kessler, Georgia Senate Runoffs Fueled Mostly by Out-of-State Donors, Bloomberg (Dec. 16, 2020, 4:52 PM), https://www.bloomberg.com/‌news/articles/2020-12-16/georgia-senate-runoffs-fueled-mostly-by-out-of-state-donors [https://perma.cc/G7C3-2XHZ]. ↑
See In-District vs. Out-of-District, Ctr. For Responsive Pol., https://www.opensecrets.org/elections-overview/in-district-vs-out-of-district?cycle=2018‌&display=T [https://perma.cc/8GME-RUFQ] (showing that nearly half of legislators raises more than three-quarters of their campaign funds from non-constituent contributions); see also James G. Gimpel, Frances E. Lee & Shanna Pearson-Merkowitz, The Check Is in the Mail: Interdistrict Funding Flows in Congressional Elections, 52 Am. J. Pol. Sci. 373, 373 (2008) (showing that “nonresident contributions are primarily partisan and strategic in nature, rather than access-oriented or expressive/identity-based,” and that “[f]unds are efficiently redistributed from a small number of highly educated, wealthy congressional districts to competitive districts anywhere in the country”). ↑
See, e.g., Joe Light, Bill Allison & Rachael Dottle, Wall Street Put Its Money on the 2020 Election’s Winners, Bloomberg (Dec. 10, 2020), https://www.bloomberg.com/‌graphics/2020-wall-street-election-winners/ [https://perma.cc/L4GN-P9AM]; Factbox: U.S. Democrats on House Antitrust Panel Scored Biggest Big Tech Donations, Reuters (July 29, 2020, 6:16 AM), https://www.reuters.com/article/us-usa-tech-congress-lobbying-factbox/‌factbox-u-s-democrats-on-house-antitrust-panel-scored-biggest-big-tech-donations-idUSKCN24U1H4 [https://perma.cc/V29K-98JF]. ↑
Shoshana Zuboff, The Coup We Are Not Talking About, N.Y. Times (Jan. 29, 2021), https://www.nytimes.com/2021/01/29/opinion/sunday/facebook-surveillance-society-technology.html [https://perma.cc/85BT-K9H3]. ↑
See, e.g., Our Candidates, LGBTQ Victory Fund, https://victoryfund.org/our-candidates/ [https://perma.cc/DWR2-P2ZR] (last visited Jan. 21, 2021) (soliciting donations to “build long-term LGBTQ political power by helping elect LGBTQ leaders at every level of government”). ↑
Danielle M. Thomsen & Michele L. Swers, Which Women Can Run? Gender, Partisanship, and Candidate Donor Networks, 70 Pol. Rsch. Q. 449, 449–50 (2017); see also id. at 450 (noting that candidate gender is “largely irrelevant” to Republican donors). ↑
See generally Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Christina Duffy Burnett & Burke Marshall eds., 2001) (discussing Puerto Rico’s legal status). ↑
“I represent two districts,” Rep. José Serrano (D-NY) has said, “one in the Bronx and one that’s Puerto Rico.” See Rick Rojas, Anguish Turns to Fury for Leaders with Ties to Ailing Puerto Rico, N.Y. Times, Oct. 10, 2017, at A14. By allowing citizens to influence legislators for whom they cannot vote, campaign finance law provides a channel for legislators to be responsive to non-constituents. In one recent election cycle, a mainland legislator raised one-fifth of her campaign funds from the San Juan metropolitan area and was later among Congress’s strongest proponents of federal funds to rebuild Puerto Rico in the aftermath of major hurricanes. See Rep. Nydia M. Velázquez—New York District 07, Ctr. For Responsive Pol., https://www.opensecrets.org/members-of-congress/geography?cid=N00001102&‌cycle=2016 [https://perma.cc/QP73-7M2L]. ↑
Jacob M. Grumbach & Alexander Sahn, Race and Representation in Campaign Finance, 114 Am. Pol. Sci. Rev. 206, 206 (2020). ↑
David Fontana, The Geography of Campaign Finance Law, 90 S. Cal. L. Rev. 1247, 1273 (2017). ↑
Anne E. Baker, Getting Short-Changed? The Impact of Outside Money on District Representation, 97 Soc. Sci. Q. 1096, 1104 (2016). Within-district contributions do not, Baker finds, meaningfully counteract the influence of outside contributions. See id. at 1106. ↑
Id. (internal citation omitted). ↑
Stephanopoulos, Aligning Campaign Finance Law, supra note 82, at 1431. ↑
See supra notes 130–34 and accompanying text. ↑
See 52 U.S.C. § 30121(a). ↑
See Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011) (three-judge panel), aff’d, 565 U.S. 1104 (2012) (mem.). ↑
Id. An earlier line of cases likewise allows the exclusion of noncitizens from various aspects of the political process. See Cabell v. Chavez-Salido, 454 U.S. 432 (1982); Foley v. Connelie, 435 U.S. 291 (1978); Sugarman v. Dougall, 413 U.S. 634 (1973). ↑
See Bluman, 800 F. Supp. 2d at 290 (expressly distinguishing foreign nationals from “citizens of other states and municipalities,” noting that only the latter are “members of the American political community,” and concluding that “[t]he compelling interest that justifies Congress in restraining foreign nationals’ participation in American elections—namely, preventing foreign influence over the U.S. government—does not apply equally to . . . citizens of other states and municipalities”). ↑
Kathryn Pearson, Party Discipline in the U.S. House of Representatives 146 (2015); see also id. at 146–60 (providing evidence of how party leaders distribute campaign funds to promote party loyalty). ↑
See C. Lawrence Evans, The Whips: Building Party Coalitions in Congress 54–55 (2018) (describing the Republican Party’s financial and other campaign support for a legislator who cast a difficult vote in favor of the party’s position on a trade issue). ↑
See Lou Dubose & Jan Reid, The Hammer: Tom DeLay, God, Money, and the Rise of the Republican Congress 100, 149 (2004). ↑
See Marian Currinder, Money in the House: Campaign Funds and Congressional Party Politics 36–39 (2008). ↑
Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 826 (2014). ↑
Pub. L. No. 107-155, 116 Stat. 81 (codified in scattered sections of 2, 8, 18, 28, 36, and 47 U.S.C.). ↑
Pub. L. No. 107-155, tit. 1, § 323, 116 Stat. 81, 82–86 (2002) (codified at 2 U.S.C. § 441(i) (2018)). ↑
See Raymond J. La Raja, Why Super PACs: How the American Party System Outgrew the Campaign Finance System, 10 Forum 91, 101 (2012) (showing how “starting in 2004 (after BCRA),” the role of parties in financing elections “has been challenged by non-party groups”). ↑
Pildes, supra note 158, at 826 (noting that individual donors’ share of contributions to congressional campaigns increased from 25% to 61% between 1990 and 2014). ↑
See id. at 830 (describing this as a consequence of the “fragmentation reflected in the explosion of Super PACs, 527s, and 501(c) organizations”). For a competing interpretation, see Thomas E. Mann & Anthony Corrado, Party Polarization and Campaign Finance, Brookings Ctr. Effective Pub. Mgmt., 7–9 (July 2014), https://www.brookings.edu/wp-content/uploads/2016/06/Mann-and-Corrad_Party-Polarization-and-Campaign-Finance.pdf [https://perma.cc/RE2C-QLJQ] (arguing that the national parties found other ways to increase their roles after BRCA, even if those ways were not reflected in party financial statements). ↑
John Phillips, Washington Power Brokers Lose Their Carrots and Sticks, Orange County Reg. (Apr. 6, 2017, 11:11 PM), https://www.ocregister.com/2017/04/06/washington-power-brokers-lose-their-carrots-and-sticks/ [https://perma.cc/RRT6-NL8C] (quoting Rep. Trey Radel (R-FL)). ↑
572 U.S. 185 (2014). ↑
See id. at 192–93. ↑
The process is somewhat circuitous—donors contribute to so-called joint fundraising committees, which give money to state parties, which transfer money to their national affiliates—but the effect is a windfall for the national and state parties alike. See Carrie Levine, Soft Money is Back—And Both Parties Are Cashing In, Politico (Aug. 4, 2017), https://www.politico.com/magazine/story/2017/08/04/soft-money-is-backand-both-parties-are-cashing-in-215456/ [https://perma.cc/TF8S-YRVC]. ↑
See supra Subsection II.A.3. ↑
See Matt Grossmann & David A. Hopkins, Asymmetric Politics: Ideological Republicans and Group Interest Democrats 234–35 (2016) (providing examples); see also id. at 235–38 (comparing the parties and explaining why similar dynamics do not exist on the Democratic side); Ruth Bloch Rubin, Building the Bloc Intraparty Organization in the U.S. Congress 261–94 (2017) (discussing “conservative revolutionaries” in Congress in the late twentieth and early twenty-first centuries). ↑
Former Speaker John Boehner (R-OH) has argued that far-right members of the Republican Party dissented from the party line during his tenure in part out of fear of primary challenges. See Grossmann & Hopkins, supra note 169, at 297–98. One empirical analysis of roll-call data identifies Republican legislators whose voting patterns moved rightward in anticipation of and in response to primary challenges. See Elaine C. Kamarck & James Wallner, Anticipating Trouble: Congressional Primaries and Incumbent Behavior 7–8, Brookings (Oct. 2018), https://www.brookings.edu/wp-content/uploads/2018/10/GS_1029‌2018_Primaries-and-Incumbent-Behavior.pdf [https://perma.cc/XRP3-AZNM]. Another study finds an absence of strong evidence that legislators change voting behavior in response to primary challenges but argues that the threat of primaries likely affects legislative behavior, given that legislators are constantly anticipating possible electoral challenges and behave in ways that seek to fend off such challenges. See Robert G. Boatright, Getting Primaried: The Changing Politics of Congressional Primary Challenges 139–74 (2013). ↑
See, e.g., Molly K. Hooper, Fearing Primaries, Republican Members Opted to Shun Boehner’s “Plan B,” The Hill (Dec. 22, 2012, 11:00 AM), https://thehill.com/‌homenews/house/274407-fearing-primaries-gop-members-opted-to-shun-boehners-plan-b [https://perma.cc/UC93-JDMK] (reporting that “[m]any House Republicans refused to vote for [leadership’s tax] bill because they were ‘gun shy’ about drawing primary challengers”). ↑
See Hirano & Snyder, supra note 108, at 18–21. ↑
Id. at 21–23. ↑
See Stephen Ansolabehere, Shigeo Hirano & James M. Snyder, Jr., What Did the Direct Primary Do to Party Loyalty in Congress?, in 2 Party, Process, and Political Change in Congress: Further New Perspectives on the History of Congress 35–36 (David W. Brady & Matthew D. McCubbins eds., 2007). ↑
U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”). The Supreme Court’s understanding of the First Amendment associational rights of political parties serves as a constraint on how legislatures may structure primary elections. In California Democratic Party v. Jones, 530 U.S. 567 (2000), the Court concluded that California’s blanket primary infringed on parties’ associational rights by forcing them to “adulterate their candidate-selection process . . . by opening it up to persons wholly unaffiliated with the party.” Id. at 581. The Court dismissed concerns about representation, characterizing those concerns as “simply circumlocution for producing nominees and nominee positions other than those the parties would choose if left to their own devices.” Id. at 582. Later cases stepped back from California Democratic Party somewhat, but likewise eschewed a focus on representation in favor of a framework focused on associational rights. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 444 (2008) (upholding Washington’s top-two primary); Clingman v. Beaver, 544 U.S. 581, 593 (2005) (upholding Oklahoma’s semi-closed primary); Democratic Party of Haw. v. Nago, 833 F.3d 1119, 1125 (9th Cir. 2016) (upholding Hawaii’s open primary). ↑
See State Primary Election Types, Nat’l Conf. of State Legislatures (Jan. 26, 2021, 7:43 PM), https://www.ncsl.org/research/elections-and-campaigns/primary-types.aspx [https://perma.cc/4NMM-FLSR] (cataloguing different types of primaries across the fifty states). ↑
See Ofer Kenig, William Cross, Scott Pruysers & Gideon Rahat, Party Primaries: Towards a Definition and Typology, 51 Representation 147, 153 tbl.1 (2015). ↑
Love v. Foster, 147 F.3d 383, 385–86 (5th Cir. 1998) (describing blanket primaries in Louisiana); see also Nat’l Conf. of State Legislatures, supra note 176 (noting the use of blanket primaries in three other states as well). ↑
Kenig et al., supra note 177, at 153–54 (describing the use of these systems in Taiwan and Italy, respectively). ↑
See, e.g., Elisabeth R. Gerber & Rebecca B. Morton, Primary Election Systems and Representation, 14 J.L. Econ. & Org. 304, 304 (1998) (finding that House members “from states with closed primaries take policy positions that are furthest from their district’s estimated median [voter]” as compared to those from states with other sorts of primaries); Christian R. Grose, Reducing Legislative Polarization: Top-Two and Open Primaries Are Associated with More Moderate Legislators, 1 J. Pol. Inst. & Pol. Econ. 1, 13 (2020) (finding that “[l]egislators elected in open primary systems are 4 percentage points less extreme than legislators elected in closed primary systems”). ↑
See, e.g., Hirano & Snyder, supra note 108, at 296 (summarizing authors’ findings that their “analyses provide no evidence that open primaries are associated with the election of ideological moderates”); Jon C. Rogowski & Stephanie Langella, Primary Systems and Candidate Ideology: Evidence from Federal and State Legislative Elections, 43 Am. Pol. Rsch. 846, 846 (2015) (finding “no evidence that the restrictiveness of primary participation rules is systematically associated with candidate ideology” in a study of congressional and state legislative elections). ↑
See, e.g., Will Bullock & Joshua D. Clinton, More a Molehill than a Mountain: The Effects of the Blanket Primary on Elected Officials’ Behavior from California, 73 J. Pol. 1 (2011) (showing that California’s shift to a blanket primary appeared to cause incumbent legislators (both federal and state) to take more moderate positions, but noting that the effect was absent in the most partisan districts); Grose, supra note 180, at 12–13 (showing that “the top-two primary is associated with legislators who are 7 percentage points more moderate than those legislators from closed systems”). ↑
Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Chi. L. Rev. 361, 361 (2004) (noting constitutional “rules for assembling the legislature, selecting its officers, and disciplining its members; voting and quorum rules; rules governing the transparency of deliberation and voting . . . the Origination Clause, special quorum rules for supermajority voting, and the procedures for overriding a presidential veto” (footnotes omitted) (citing U.S. Const. art. I, §§ 4, 5, 7; id. art. II, § 1)). ↑
See, e.g., Legislative Reorganization Act of 1946, Pub. L. No. 79-601, 60 Stat. 812 (codified as amended in scattered sections of 2 U.S.C.); Legislative Reorganization Act of 1970, Pub. L. No. 91-510, 84 Stat. 1140 (codified as amended in scattered sections of 2 U.S.C.). ↑
See Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297 (codified as amended at 2 U.S.C. §§ 601–55 (2012)); see also Elizabeth Garrett, The Purposes of Framework Legislation, 14 J. Contemp. Legal Issues 717 (2005) (discussing statutes that structure congressional procedure). ↑
See Rules of the House of Representatives, reprinted in H.R. Doc. No. 112-161 (2013) [hereinafter House Rules]; Standing Rules of the Senate, reprinted in S. Doc. No. 113-18 (2013) [hereinafter Senate Rules]. These rules are promulgated based on the constitutional power of each chamber to “determine the Rules of its Proceedings.” U.S. Const. art. I, § 5, cl. 2. See also Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 267–301 (2017) (discussing cameral rules). ↑
See generally Jonathan S. Gould, Law Within Congress, 129 Yale L.J. 1946 (2020) (discussing this body of law). ↑
See infra Section III.C (discussing several such rules). ↑
See infra Subsection III.B.1. ↑
See infra Subsection III.B.2. ↑
See, e.g., Ganesh Sitaraman, The Origins of Legislation, 91 Notre Dame L. Rev. 79, 103–06 (2015) (providing examples of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the reauthorization of the Prescription Drug User Fee Act in 2012). ↑
Examples of legislation developed in this way include the post-9/11 Authorization for the Use of Military Force, the Troubled Asserts Relief Program passed in 2008, and the two COVID-19 relief bills passed in 2020. See David Abramowitz, The President, the Congress, and Use of Force: Legal and Political Considerations in Authorizing Use of Force Against International Terrorism, 43 Harv. Int’l L.J. 71 (2002); David M. Herszenhorn, Administration Is Seeking $700 Billion for Wall Street, N.Y. Times (Sep. 20, 2008), https://www.nytimes. ‌com/2008/09/21/business/21cong.html [https://perma.cc/6G9F-GL66]; John Bresnahan, Marianne Levine & Andrew Desiderio, How the $2 Trillion Deal Came Together—and Nearly Fell Apart, Politico (Mar 26, 2020, 1:14 AM), https://www.politico.com/news/2020/‌03/26/inside-the-10-days-to-rescue-the-economy-149718 [https://perma.cc/K6LC-YXTN]. ↑
See, e.g., Lawrence R. Jacobs & Theda Skocpol, Health Care Reform and American Politics: What Everyone Needs to Know 50–100 (3d ed. 2016) (describing the enactment of the Affordable Care Act). ↑
See Ginsberg & Hill, supra note 86, at 181. ↑
Id. ↑
Pub. L. No. 95–339, 92 Stat. 460 (1978). ↑
Pub. L. No. 103–318, 108 Stat. 1781 (1994). ↑
Except, perhaps, at a very high level of generality: constituents might hold a position on government spending or economic development as a general matter. ↑
Sinclair, supra note 2, at 28. ↑
See id.; Michael Doran, The Closed Rule, 59 Emory L.J. 1363, 1366 (2010). ↑
Doran, supra note 200, at 1366. ↑
On other effects of the rise of closed rules, see id. at 1398–1401. ↑
Id. at 1429. To the extent that closed rules channel more activity into committees, it is possible that legislators can achieve constituency-centered objectives in committees. But most members are not on most committees, so even with this proviso it is fair to conclude that closed rules shut off one possible channel for constituency-centered representation, even if others may remain. ↑
House Rules, supra note 186, r. XVI(7); see also Charles W. Johnson, John V. Sullivan & Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents, and Procedures of the House 544 (2017) (noting the long history of House germaneness requirements). ↑
See Johnson et al., supra note 204, at 549. ↑
124 Cong. Rec. 13,499 (1978). ↑
See Valerie Heitshusen, Cong. Rsch. Serv., 96-548, The Legislative Process on the Senate Floor: An Introduction 6–7 (last updated July 22, 2019), https://fas.org/sgp/crs/‌misc/96-548.pdf [https://perma.cc/5PXJ-PZJ9]. ↑
See, e.g., id. at 11 (describing how the Senate majority leader can fill the so-called “amendment tree” to prevent additional amendments). ↑
See William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 176–81 (2d ed. 2006) (discussing single-subject requirements); Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. 803 (2006). ↑
See Eskridge et al., supra note 209, at 176. ↑
One might respond to this Section’s focus on amendment rules by noting that such rules should not matter, since all legislators have the formal power to introduce new bills on any topic, including on topics with particular or even exclusive relevance to their constituencies. But party leaders control the agenda in both the House and Senate, and the overwhelming majority of bills introduced never see the light of day, much less become law. See Statistics and Historical Comparison, GovTrack (last visited Sept. 1, 2020), https://www.govtrack.us/‌congress/bills/statistics [https://perma.cc/B7JF-YA49]. By far the most promising avenue for a rank-and-file legislator to advance their preferred policy is to attach it to another bill that seems likely to pass. ↑
Logrolling can allow legislators to engage in dealmaking that, under the proper circumstances, enables them to take a constituency-centered approach and still garner majority support, if a sufficiently large number of constituency-centered provisions are grouped together in a single bill. But logrolling can be challenging in practice, given the planning, coordination, and trust between members that it requires.
A small subset of legislators might be able to exercise power even without building a broad coalition, by virtue of serving as a committee chair or through the good luck of happening to be a swing voter, but most legislators do not hold such positions. See, e.g., Ginsberg & Hill, supra note 86, at 158–59 (discussing the power of committee chairs); Jonathan S. Gould, Rethinking Swing Voters, 74 Vand. L. Rev. 85, 102–04, 107–09 (2021) (discussing the power of legislative swing voters). ↑
John C. Roberts, Gridlock and Senate Rules, 88 Notre Dame L. Rev. 2189, 2191 (2013). ↑
See Jentleson, supra note 28, at 9 (describing the modern Senate as “a kill switch that cuts off broad-based solutions and shuts down our democratic process”); see also William N. Eskridge, Jr., Vetogates and American Public Law, 31 J.L. Econ. & Org. 756, 757–60 (2012) (describing nine “vetogates” in the U.S. legislative process); Alfred Stepan & Juan J. Linz, Comparative Perspectives on Inequality and the Quality of Democracy in the United States, 9 Persps. on Pol. 841, 844 (2011) (noting that the United States has more veto points than other established democracies). ↑
See Sinclair, supra note 2, at 66–72. ↑
Steven S. Smith, Call to Order: Floor Politics in the House and Senate 110 (1989). ↑
Sinclair, supra note 2, at 64. The senator lifted the holds after significant public criticism. Id. ↑
Id. at 64. ↑
The failure of a bill to reform the American foster care system illustrates this dynamic. See Family First Prevention Services Act of 2016, H.R. 5456, 114th Congress (2016). This bill unanimously passed the House in 2016. In the Senate, the reform was initially included as part of another proposed bill, but Senator Richard Burr (R-NC) insisted upon its removal from that other bill and also objected to its attachment to a continuing resolution then under consideration. The reason for Burr’s objection was pressure from the Baptist Children’s Homes of North Carolina, which would have lost substantial revenue if reforms to keep families together—instead of putting children in foster care—had gone into effect. The Baptist Children’s Homes was able to convince Burr to oppose the bill, and Burr’s opposition, in turn, prevented the bill from becoming law. See Ryan Grim, Jason Cherkis & Laura Barrón-López, A Sweeping Reform of the Foster Care System Is Within Reach but Hanging by a Thread, Huffington Post (Dec. 2, 2016, 11:16 AM), https://www.huffpost.com/entry/a-sweeping-reform-of-the-foster-care-system-is-hanging-by-a-thread_n_5840f925e4b0c68e04802b7c [https://perma.cc/2G5J-V2LM]; Ryan Grim, A Single Senator Is Blocking Reform of the Foster Care System, Huffington Post (Dec. 6, 2016, 11:31 PM), https://www.huffpost.com/entry/senator-blocks-foster-care-reform_n_584783d3e‌4b0b9feb0da3920 [https://perma.cc/3WFT-JEP9]. ↑
See Mark J. Oleszek, Cong. Rsch. Serv., R43563, “Holds” in the Senate 1 (2017), https://fas.org/sgp/crs/misc/R43563.pdf [https://perma.cc/Q656-PGMY]. ↑
See Oleszek, supra note 220, at 2; Walter J. Oleszek, Cong. Rsch. Serv., RL31685, Proposals to Reform “Holds” in the Senate (2011), https://fas.org/sgp/crs/misc/RL31685.pdf [https://perma.cc/R2H9-PE3L]. ↑
See Ginsberg & Hill, supra note 86, at 85. ↑
There is no single definition of an earmark, but the term has been defined as encompassing “funds set aside within an account for a specified program, project, activity, institution, or location,” or, more narrowly, as “specified funds for projects, activities, or institutions not requested by the executive, or add-ons to requested funds which Congress directs for specific activities.” See Memorandum from the Cong. Rsch. Serv. Appropriations Team on Earmarks in Appropriations Acts 2–3 (Jan. 26, 2006), https://fas.org/sgp/‌crs/misc/m012606.pdf [https://perma.cc/W9K6-7U43]. ↑
See Megan S. Lynch, Cong. Rsch. Serv., R45429, Lifting the Earmark Moratorium: Frequently Asked Questions 1–3 (last updated Dec. 3, 2020), https://crsreports.congress.gov/‌product/pdf/R/R45429 [https://perma.cc/7UK9-NS68] (noting that though the earmark bans are not part of either chamber’s cameral rules, they have been part of party rules and committee protocols since 2011). See also Mariano-Florentino Cuéllar, Earmarking Earmarking, 49 Harv. J. on Legis. 249 (2012). ↑
Jennifer Shutt, House Appropriators Officially Bring Back Earmarks, Ending Ban, Roll Call (Feb. 26, 2021, 6:30 PM), https://rollcall.com/2021/02/26/house-appropriators-to-cap-earmarks-at-1-percent-of-topline/ [https://perma.cc/33QJ-9Z8R]. ↑
See, e.g., Chris Good, The Future of Earmarks Depends on Senate Republicans, The Atlantic (Nov. 9, 2010), https://www.theatlantic.com/politics/archive/2010/11/the-future-of-earmarks-depends-on-senate-republicans/66314/ [https://perma.cc/LDQ4-JCTD] (noting that earmarks comprise less than one percent of the federal budget); Steven C. LaTourette, The Congressional Earmark Ban: The Real Bridge to Nowhere, Roll Call (July 30, 2014, 1:59 PM), https://www.rollcall.com/2014/07/30/the-congressional-earmark-ban-the-real-bridge-to-nowhere-commentary/ [https://perma.cc/PYL4-NVK2] (contending that in the absence of earmarks federal agencies spend the same funds without congressional direction). ↑
See, e.g., Diana Evans, Greasing the Wheels: Using Pork Barrel Projects to Build Majority Coalitions in Congress 25 (2004) (arguing that “the judicious distribution of pork barrel benefits is an important technique for forming majority coalitions for general interest legislation” and providing empirical support for that theory). ↑
See Ginsberg & Hill, supra note 86, at 171 (describing this practice, known as “zombie earmarking”). ↑
See id. at 172 (describing this practice, known as “letter marking”). ↑
See 2 U.S.C. § 1613 (prohibiting registered lobbyists from giving a legislative branch official any gift prohibited by the rules of the House or Senate). ↑
At the federal level, this legal regime is set out in the Lobbying Disclosure Act of 1995, Pub. L. No. 104-65, 109 Stat. 691 (codified at 2 U.S.C. § 1601 et seq.); and the Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735 (codified as amended in scattered titles of U.S.C.). ↑
See 18 U.S.C. § 207(e) (imposing such requirements on former executive branch officials, members of Congress, and legislative staff). ↑
See Richard Briffault, The Anxiety of Influence: The Evolving Regulation of Lobbying, 13 Election L.J. 160, 180–82 (2014) (discussing state bans on lobbyists accepting contingency fees).
A wide range of lobbying regulations are constitutional, though the First Amendment likely places outer bounds on such regulation. See, e.g., id. at 163 (“Lobbying is an aspect of the freedoms of speech, press, association, and petition protected by the constitution.”); Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 196 (2012) (“The activity of lobbying . . . squarely implicates both the Free Speech and Petition Clauses of the First Amendment.”). But see Zephyr Teachout, The Forgotten Law of Lobbying, 13 Election L.J. 4, 6 (2014) (noting that “[t]he modern Supreme Court has not directly addressed whether there is a right to hire a lobbyist, or be hired as a lobbyist, and if so, the source of that right, or the scope of that right” and providing historical evidence that “[t]he First Amendment was not even implicated in lobbying discussions, for over 150 years”). ↑
Pub. L. No. 75-583, ch. 327, 52 Stat. 631 (codified as amended at 22 U.S.C. §§ 611–621 (2018)). ↑
See U.S. Dep’t of Just., Crim. Res. Manual § 2062, https://www.justice.gov/‌archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement [https://perma.cc/F4CC-HBVH] (last updated Dec. 7, 2018). ↑
See David Laufman, Paul Manafort Guilty Plea Highlights Increased Enforcement of Foreign Agents Registration Act, Lawfare (Sept. 14, 2018, 1:58 PM), https://www.lawfare‌blog.com/paul-manafort-guilty-plea-highlights-increased-enforcement-foreign-agents-registration-act [https://perma.cc/FW6B-7GN9]. ↑
See id. ↑
This concern has deep roots. Alexander Hamilton warned that “[o]ne of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22, at 149 (Alexander Hamilton). For this reason, the Constitution included strict limits on how federal officials were permitted to interact with foreign actors. See U.S. Const. art. I, § 9, cl. 8 (barring public officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”). ↑
See, e.g., 18 U.S.C. § 201(b) (2018) (federal bribery statute); id. § 201(c) (federal gratuities statute). ↑
See Ctr. for the Advancement of Pub. Integrity, A Guide to Commonly Used Federal Statutes in Public Corruption Cases: A Practitioner Toolkit (2017), https://web.law.columbia.edu/sites/default/files/microsites/public-integrity/a_guide_to_‌commonly_used_federal_statutes_in_public_corruption_cases.pdf [https://perma.cc/E4ZD-MUD6] (providing an overview of federal public corruption statutes). ↑
18 U.S.C. § 201(b)(1)(A). ↑
Id. § 201(b)(2)(A). ↑
136 S. Ct. 2355 (2016). ↑
Id. at 2372. ↑
Id. at 2361. ↑
United States v. Menendez, 831 F.3d 155, 159 (3d Cir. 2016). ↑
See Nick Corasaniti, Justice Department Dismisses Corruption Case Against Menendez, N.Y. Times (Jan. 31, 2018), https://www.nytimes.com/2018/01/31/nyregion/justice-department-moves-to-dismiss-corruption-case-against-menendez.html [https://perma.cc/4TF‌Y-4FEB]. When prosecutors dropped all charges against Menendez in 2018, many attributed their decision to the difficulty of prosecuting public corruption after McDonnell. See id. ↑
See United States v. Menendez, 137 F. Supp. 3d 688 (D.N.J. 2015); United States v. Menendez, 132 F. Supp. 3d 610 (D.N.J. 2015), aff’d, 831 F.3d 155 (3d Cir. 2016). ↑
See Lee Drutman, The Business of America Is Lobbying: How Corporations Became Politicized and Politics Became More Corporate 33–42 (2015) (presenting evidence and citing sources); Hertel-Fernandez, supra note 25, at 78–111 (2019) (detailing dynamics at the state legislative level). ↑
See Hertel-Fernandez, supra note 25, 78–111. ↑
Richard L. Hall & Alan V. Deardorff, Lobbying as Legislative Subsidy, 100 Am. Pol. Sci. Rev. 69, 69 (2006). ↑
See, e.g., Drutman, supra note 249, at 40; Hertel-Fernandez, supra note 25, at 78–111. ↑
Cf. Jeffrey R. Lax & Justin H. Phillips, The Democratic Deficit in the States, 56 Am. J. Pol. Sci. 148, 161 (2012) (finding, in a study of state legislatures, that legislatures with higher staffing capacity were more responsive to the public, and theorizing that increasing capacity made legislatures better able to take actions preferred by voters). ↑
Pub. L. No. 79-601, 60 Stat. 812 (1946) (codified as amended in scattered sections of 2 U.S.C.). ↑
See 1 Robert C. Byrd, The Senate 1789–1989: Addresses on the History of the United States Senate 537–50 (1989); Michael J. Malbin, Unelected Representatives: Congressional Staff and the Future of Representative Government (1980); George B. Galloway, The Operation of the Legislative Reorganization Act of 1946, 45 Am. Pol. Sci. Rev. 41 (1951). ↑
See, e.g., Eric Schickler, Disjointed Pluralism: Institutional Innovation and the Development of the U.S. Congress 217–20 (2001) (describing expansions in Senate staffing in the 1970s). ↑
The CBO “produce[s] independent analyses of budgetary and economic issues,” “does not make policy recommendations,” “is strictly nonpartisan,” and hires employees “solely on the basis of professional competence.” Introduction to CBO, Cong. Budget Off., https://www.cbo.gov/about/overview [https://perma.cc/DN3J-Q97G]; see also Philip Joyce, The Congressional Budget Office at Middle Age 5–8 (Hutchings Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 9, 2015), https://www.brookings.edu/wp-content/uploads/2016/06/PJ_WorkingPaper9_Feb11_Final.pdf [https://perma.cc/5X66-873A] (detailing how the CBO seeks to maintain nonpartisan objectivity). The CRS conducts research to help legislators “form sound policies and reach decisions on a host of difficult issues.” See About CRS, Cong. Rsch. Serv., https://loc.gov/crsinfo/about/ [https://perma.cc/‌D6L8-XFAK]. The mid-century Congress took other steps to enhance its expertise as well. See, e.g., Bruce Bimber, The Politics of Expertise in Congress: The Rise and Fall of the Office of Technology Assessment 25–49 (1996) (discussing the 1972 founding of the Office of Technology Assessment). ↑
See Ginsberg & Hill, supra note 86, at 75 (noting that “[p]rior to the creation of the CBO, Congress was dependent upon the reports and estimates of the OMB” and that “the 1970 Legislative Reform Act . . . expanded committee staffing, provided computers for members’ offices, introduced electronic voting machines to the House floor, created the Congressional Research Service (formerly the Legislative Reference Service), and otherwise strengthened Congress’s operational capabilities”); see also id. at 144–49 (describing internal congressional capacity). A parallel infrastructure exists in subnational legislatures, though it is typically less robust. See State Legislative Research Service Bureaus, Ballotpedia, https://ballotpedia.org‌/State_legislative_research_service_bureaus [https://perma.cc/PV7F-9K7V] (last visited Jan. 16, 2021). ↑
See Drutman, supra note 249, at 34. ↑
See id. at 33–34. ↑
Curtlyn Kramer, Vital Stats: Congress Has a Staffing Problem, Too, Brookings (May 24, 2017), https://www.brookings.edu/blog/fixgov/2017/05/24/vital-stats-congress-has-a-staffing‌-problem-too/ [https://perma.cc/4YXP-RSY8]. ↑
See Bruce Bartlett, Gingrich and the Destruction of Congressional Expertise, N.Y. Times: Economix (Nov. 29, 2011), https://economix.blogs.nytimes.com/2011/11/29/gingrich-and-the-destruction-of-congressional-expertise [https://perma.cc/37WA-A4TQ] (providing staffing statistics and noting that Gingrich “did everything in his power to dismantle Congressional institutions”); Bimber, supra note 257, at 69–77 (describing the 1995 closing of the Office of Technology Assessment). ↑
See Nathaniel Weixel, Senate GOP May Not Use CBO to Score Cruz Amendment, Hill (July 13, 2017, 2:15 PM), https://thehill.com/policy/healthcare/341904-senate-gop-may-not-use-cbo-to-score-cruz-amendment [https://perma.cc/U7EX-FGYR]; see also Michelle Cottle, The Congressional War on Expertise, Atlantic (July 9, 2017), https://www.the‌atlantic.com/politics/archive/2017/07/why-lawmakers-need-the-congressional-budget-office/532929/ [https://perma.cc/2KCK-2CTZ]. ↑
See Craig Volden & Alan E. Wiseman, Legislative Effectiveness and Problem Solving in the U.S. House of Representatives, in Congress Reconsidered 248, 255 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 11th ed. 2017) (creating a quantitative measure of legislators’ effectiveness and finding that “the average Legislative Effectiveness Scores of committee and subcommittee chairs are increasing over their tenure in the House”); see also Craig Volden & Alan Wiseman, How Term Limits for Committee Chairs Make Congress Less Effective, Wash. Post. (Jan. 4, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/‌01/04/how-term-limits-for-committee-chairs-make-congress-less-effective [https://perma.cc/5TJ2-JCMH]. ↑
Molly E. Reynolds, Retirement from Congress May Be Driven by Term Limits on Committee Chairs, Brookings (Nov. 30, 2017), https://www.brookings.edu/blog/fixgov/2017/‌11/30/committee-chair-term-limits-and-retirements/ [https://perma.cc/XPV6-LM3X]. ↑
See, e.g., Casey Burgat, Five Reasons to Oppose Congressional Term Limits, Brookings (Jan. 18, 2018), https://www.brookings.edu/blog/fixgov/2018/01/18/five-reasons-to-oppose-congressional-term-limits/ [https://perma.cc/54VQ-N2ZH]. ↑
The few scholarly treatments of fundraising time include Lynda W. Powell, The Influence of Campaign Contributions in State Legislatures: The Effects of Institutions and Politics 78–105 (2012), and Ciara Torres-Spelliscy, Time Suck: How the Fundraising Treadmill Diminishes Effective Governance, 42 Seton Hall Legis. J. 271 (2018). For journalistic accounts, see e.g., Ryan Grim & Sabrina Siddiqui, Call Time for Congress Shows How Fundraising Dominates Bleak Work Life, Huffington Post (Dec. 6, 2017), https://www.huffpost.com/entry/call-time-congressional-fundraising_n_2427291 [https://perma.cc/E9W9-VHP4]; Steve Israel, Confessions of a Congressman, N.Y. Times (Jan. 9, 2016) https://www.nytimes.com/2016/01/09/opinion/steve-israel-confessions-of-a-congressman.html [https://perma.cc/ZA8J-XGBL]; Tim Roemer, Why Do Congressmen Spend Only Half Their Time Serving Us?, Newsweek (July 29, 2015, 11:38 AM), https://www.newsweek.com/why-do-congressmen-spend-only-half-their-time-serving-us-357995 [https://perma.cc/6PXM-RAQA]. ↑
Time spent on fundraising could be reduced not only by wholesale campaign finance reform but also by considerably more modest changes in law. A recent bipartisan proposal to ban legislators from personally soliciting campaign contributions, for example, would reduce time spent fundraising even while leaving the system of private campaign finance in place. See Stop Act of 2016, H.R. 4443, 114th Cong. (2016); see also Editorial, This Would Be a Nice First Step on Campaign Finance Reform, Wash. Post (June 10, 2016), https://www.washingtonpost.com/opinions/this-would-be-a-nice-first-step-on-campaign-finance-reform/2016/06/10/745de05a-2e69-11e6-b5db-e9bc84a2c8e4_story.html [https://perma.cc/7ES4-K7YD]. ↑
See generally Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform (Kevin R. Kosar, Lee Drutman & Timothy M. LaPira eds., 2020) (collecting essays on the topic). ↑
See, e.g., Matthew Motta, The Dynamics and Political Implications of Anti-Intellectualism in the United States, 46 Am. Pol. Rsch. 465 (2017); Gordon Gauchata, Politicization of Science in the Public Sphere: A Study of Public Trust in the United States, 1974 to 2010, 77 Am. Socio. Rev. 167 (2012). ↑
See, e.g., James Fallows, The Republican Promise, N.Y. Rev. Books (Jan. 12, 1995) (discussing the term limits proposal in Republicans’ 1994 “Contract with America”). ↑
156 Cong. Rec. S11,503 (2010) (statement of Sen. Chuck Grassley (R-IA)). ↑
See, e.g., R. Douglas Arnold, The Logic of Congressional Action 131 (1990) (“Open markup sessions often give organized interests a powerful advantage over inattentive citizens, for they can monitor exactly who is doing what to benefit and to hurt them.”); David E. Pozen, Transparency’s Ideological Drift, 128 Yale L.J. 100, 130–33 (2018) (discussing how increased transparency in the legislative process has empowered interest groups). Scholars of Congress have also noted other effects of transparency reforms besides their empowering interest groups. See, e.g., Sarah A. Binder & Frances E. Lee, Making Deals in Congress, in Political Negotiation: A Handbook 105 (Jane Mansbridge & Cathie Jo Martin eds., 2016) (arguing that increased transparency can undermine legislative negotiation and dealmaking); Julian E. Zelizer, Taxing America: Wilbur D. Mills, Congress, and the State, 1945–1975 at 356 (2000) (arguing that pro-transparency reforms empowered party leaders to better monitor and oversee committee proceedings); Justin Fox, Government Transparency and Policymaking, 131 Pub. Choice 23, 26 (2007) (arguing that “unbiased politicians, who always select the policy that maximizes the public’s welfare when policy is determined behind closed doors, no longer do so when policy is made in the open”). ↑
Morris P. Fiorina & Samuel J. Abrams, Disconnect: The Breakdown of Representation in American Politics 83 (2009). ↑
For overviews, see Paul Rundquist, Secrecy in Congress, in 4 The Encyclopedia of the United States Congress 1774–75 (Donald C. Bacon, Roger H. Davidson, & Morton Keller eds., 1995); Walter J. Oleszek, Cong. Rsch. Serv., R42108, Congressional Lawmaking: A Perspective on Secrecy and Transparency (2011), https://fas.org/sgp/crs/secrecy/R42108.pdf [https://perma.cc/MGE8-D4HE]. ↑
David W. Rohde, Parties and Leaders in the Postreform House 21 (1991). ↑
Id. at 154, 195. Whether votes are recorded is largely the domain of cameral rules and practices, though the Constitution does require that votes be recorded if one-fifth of members present so request. See U.S. Const. art. I, § 5, cl. 3. ↑
157 Cong. Rec. H13 (2011). ↑
The Sunlight Foundation uses these and other metrics to construct its “Open Legislative Data Report Card” for state legislatures. See Open States, Open Legislative Data Report Card, http://openstates.org/reportcard [https://perma.cc/XFJ7-Q3XX] (last visited Jan. 26, 2021). ↑
See Pozen, supra note 273, at 115–23 (describing motivations for transparency-enhancing reforms in the 1960s and 1970s). ↑
See supra notes 273–74 (collecting sources). ↑
See generally Evans, supra note 155 (examining the role of whips in Congress). ↑
See Jon R. Bond & Richard Fleisher, The President in the Legislative Arena (1990); Jeffrey E. Cohen, The President’s Legislative Policy Agenda, 1789–2002 (2012); Mark A. Peterson, Legislating Together: The White House and Capitol Hill from Eisenhower to Reagan (1990); Andrew Rudalevige, Managing the President’s Program: Presidential Leadership and Legislative Policy Formulation (2002). ↑
See, e.g., Cox & McCubbins, supra note 63, at 217 (“[P]arties do significantly affect the voting behavior of their members.”); Steven Ansolabehere, James M. Snyder, Jr. & Charles Stewart III, The Effects of Party and Preferences on Congressional Roll-Call Voting, 26 Legis. Stud. Q. 533, 558 (2001) (“The American parties in Congress . . . have an overwhelming influence on the rules of debate and amendment . . . . To a lesser—but still significant—extent, the parties influence votes on amendments and final passage.”). But see, e.g., Mayhew, supra note 3, at 100 (“Party ‘pressure’ to vote one way or another is minimal. Party ‘whipping’ hardly deserves the name. Leaders in both houses have a habit of counseling members to ‘vote their constituencies.’”); David R. Mayhew, Observations on Congress: The Electoral Connection a Quarter Century After Writing It, 34 Pol. Sci. & Pol. 251, 252 (2001) (“I have not seen any evidence that today’s congressional party leaders ‘whip’ or ‘pressure’ their members more often or effectively than did their predecessors 30 years ago. Instead, today’s pattern of high roll-call loyalty seems to owe to a post-1960s increase in each party’s ‘natural’ ideological homogeneity . . . .”). ↑
Kenneth A. Shepsle, The Changing Textbook Congress, in Can the Government Govern? 238 (John E. Chubb & Paul E. Peterson eds., 1989). ↑
Id. at 254–56 (shifting power to Speaker and Democratic caucus). Other reforms shifted power “downward” to subcommittees and to rank-and-file legislators. Id. at 252–53 (shifting power to subcommittees); id. at 253–54 (shifting power to members). ↑
Rohde, supra note 276, at 2. “Our textbook picture must change,” Rohde concludes, “to include stronger and more influential party leaders.” Id. at 171. Rohde’s theory of conditional party government contends that party leaders are stronger when party caucuses are more ideologically homogeneous because members of a more ideologically homogeneous caucus are more willing to transfer power to party leaders. Id. at 31. ↑
Other reforms strengthened party control by other means, such as by consolidating control in party leaders over the path of proposed legislation through the House. See id. at 25. Still others focused on weakening committee chairs and shifting power to subcommittees or to the caucus as a whole. See id. at 20–23. For a detailed account of the congressional reforms of the 1970s, see Schickler, supra note 256, at 189–248. ↑
For accounts of the seniority system as it operated during the textbook Congress, see Barbara Hinckley, The Seniority System in Congress (1971); Nelson W. Polsby, Miriam Gallaher & Barry Spencer Rundquist, The Growth of the Seniority System in the U.S. House of Representatives, 63 Am. Pol. Sci. Rev. 787 (1969); George Goodwin, Jr., The Seniority System in Congress, 53 Am. Pol. Sci. Rev. 412 (1959). ↑
See Shepsle, supra note 285, at 254–55. ↑
Rohde, supra note 276, at 25. Party leadership also had a strong voice on a new House Democratic Steering and Policy Committee, half of the members of which were party leaders or their designees. See id. at 24. Rule changes also established minimum ratios of majority to minority members on committees and subcommittees, making it more difficult for committee chairs to ally with minority members in defeating proposals favored by the majority party. See id at 25. The effects of the 1970s reforms reverberated for decades. See Jay Newton-Small, Getting Her Way: Pelosi’s Powers of Persuasion, Time (Mar. 20, 2010), http://content.time.com/time/politics/article/0,8599,1973868,00.html [https://perma.cc/EFY4‌-Y7RR] (quoting a House member’s comment that the speaker “controls the steering and policy committees . . . [e]veryone knows that what the speaker wants, the speaker gets”). ↑
See Shepsle, supra note 285, at 255. ↑
Cox & McCubbins, supra note 63, at 217; see also Gary W. Cox & Mathew D. McCubbins, Legislative Leviathan: Party Government in the House 163–87 (1993) (analyzing committee assignments and concluding that “party loyalty seems to be a criterion in making assignment decisions to most House committees” because “those whose roll call votes demonstrate loyalty to the leadership are rewarded with committee transfers,” id. at 182); Nicole Asmussen & Adam Ramey, When Loyalty Is Tested: Do Party Leaders Use Committee Assignments as Rewards?, 45 Congress & Presidency 41, 41 (2018) (showing empirically that “majority party members who support their party on the subset of votes for which party leaders have taken positions in floor speeches are more likely to be rewarded with plum committee assignments”). ↑
Pearson, supra note 154, at 2. ↑
Ginsberg & Hill, supra note 86, at 38 (describing actions taken by Speaker John Boehner (R-OH) in summer 2015). ↑
See Barack Obama, A Promised Land 415–16 (2020) (noting that Republican Leader Mitch McConnell (R-KY) threatened to strip Senator Olympia Snowe (R-ME) of her seniority on the Senate’s Small Business Committee if she voted for the Affordable Care Act). ↑
Sara Brandes Crook & John R. Hibbing, Congressional Reform and Party Discipline: The Effects of Changes in the Seniority System on Party Loyalty in the US House of Representatives, 15 Brit. J. Pol. Sci. 225 (1985). ↑
Id. at 225. ↑
See Schickler, supra note 256, at 228 (“Much of the impetus for empowering Democratic leaders came from liberals who wanted to promote progressive legislation.”). ↑
See generally id. at 4 (describing how “legislative organization develops through the accumulation of innovations, each sought by a different coalition promoting a different interest”); see also, e.g., supra notes 288–99 and accompanying text (discussing how reforms in the House of Representations in the 1970s arose from ideological conflict between factions of a divided Democratic caucus). ↑
Schickler, supra note 256, at 15. ↑
Compare House Rules, supra note 186 (not containing a statement of purpose), and Senate Rules, supra note 186 (same), with Fed. R. Civ. P. 1 (“[The rules] should be construed, administered, and employed . . . to secure the just, speedy, and inexpensive determination of every action and proceeding.”); and Fed. R. Crim. P. 2 (“[The rules] are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.”). ↑
Richard H. Pildes, The Supreme Court, 2003 Term—Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 29, 59 (2004). ↑
Michael C. Dorf, Spandrel or Frankenstein’s Monster? The Vices and Virtues of Retrofitting in American Law, 54 Wm. & Mary L. Rev. 339, 341 (2012). Cf. also S.J. Gould & R.C. Lewontin, The Spandrels of San Marco and the Panglossian Paradigm: A Critique of the Adaptationist Programme, 205 Proc. Royal Soc’y London B 581, 587, 593 (1979) (arguing that “[o]ne must not confuse the fact that a structure is used in some way . . . with the primary evolutionary reason for its existence” and that “[t]he immediate utility of an organic structure often says nothing at all about the reason for its being”). ↑
See, e.g., Joran Fabian, Obama Healthcare Plan Nixes Ben Nelson’s “Cornhusker Kickback” Deal, The Hill (Feb. 22, 2010, 3:00 PM), https://thehill.com/blogs/blog-briefing-room/news/82621-obama-healthcare-plan-nixes-ben-nelsons-cornhusker-kickback-deal [https://perma.cc/8NJ2-Z8TM] (describing negotiations over state-specific Medicaid funding during attempts to secure the support of a senator from Nebraska for the Affordable Care Act); see also supra note 219 (describing the failure of national foster care reform on account of its impact on one North Carolina interest group). ↑
See supra note 25 (collecting sources on unequal representation). ↑
See Bartels, supra note 25, at 241–42. ↑
See generally Hertel-Fernandez, supra note 25. ↑
See supra Section II.B, Subsections III.B.1–2. ↑
E.E. Schattschneider, The Semi-Sovereign People: A Realist’s View of Democracy in America 35 (1960). ↑
See Hacker & Pierson, supra note 25, at 6 (quoting Senator John Breaux (D-LA)). ↑
See supra Subsection II.A.2. ↑
Lax, et al., supra note 25, at 918. ↑
Id. (reaching this conclusion based on analysis of public opinion and roll call votes in the Senate). ↑
In this vein, Richard Pildes has proposed reforms that would give the parties a greater role in campaign finance. See Pildes, supra note 158, at 836–45. ↑
See Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform, supra note 269. ↑
See, e.g., Elizabeth Warren, Strengthening Congressional Independence from Corporate Lobbyists, Medium (Sept. 27, 2019), https://medium.com/@teamwarren/strengthening-congressional-independence-from-corporate-lobbyists-bb953bb466c [https://perma.cc/X6N‌U-RWR8]. ↑
See, e.g., Levinson, supra note 53, at 1288 (“One way of protecting a minority is to create and enforce rights against majoritarian exploitation. Another is to structure the political process so that minorities are empowered to protect themselves.”). ↑
See, e.g., McCutcheon v. FEC, 572 U.S. 185 (2014); Ariz. Free Enter. Club v. Bennett, 564 U.S. 721 (2011); Citizens United v. FEC, 558 U.S. 310 (2010); FEC v. Wisc. Right to Life, Inc., 551 U.S. 449 (2007). ↑
See, e.g., Shelby Cnty. v. Holder, 570 U.S. 529, 540–57 (2013) (striking down the Voting Rights Act’s coverage formula as contrary to a principle of equal sovereignty among the states). ↑
Dennis F. Thompson, Just Elections: Creating a Fair Electoral Process in the United States, at viii (2002). ↑
See generally Jeremy Waldron, Political Political Theory: Essays on Institutions 6 (2016) (calling for political theorists to engage with “the way our political institutions house and frame our disagreements”). ↑
Edward L. Rubin, Statutory Design as Policy Analysis, 55 Harv. J. on Legis. 143, 144 (2018). When legal scholars do consider legislative procedure and operations, they most often do so in the context of debates over statutory interpretation. See, e.g., Robert A. Katzmann, Judging Statutes (2016); Victoria Nourse, Misreading Law, Misreading Democracy (2016); Abbe R. Gluck, Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do, 84 U. Chi. L. Rev. 177 (2017). ↑
See generally Chafetz, supra note 186. ↑
See, e.g., Legislatures: Comparative Perspectives on Representative Assemblies (Gerhard Loewenberg, Peverill Squire & D. Roderick Kiewiet eds., 2002); David M. Olson, Democratic Legislative Institutions: A Comparative View (1994). ↑
Vermeule, supra note 183, at 364. ↑
See generally The Dynamism of Civil Procedure: Global Trends and Developments (Colin B. Picker & Guy I. Seidman eds., 2015) (collecting essays on comparative civil procedure). ↑
See generally Comparative Administrative Law (Susan Rose-Ackerman & Peter L. Lindseth eds., 2011) (collecting essays on comparative administrative law, including administrative procedure). ↑

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