I do not believe the difference between Rick and myself on this issue is a verbal quibble--unless in a sense I shall identify.
My response to Rick's numbered paragraph 3 is that although Rick is correct that the Court has been sparing in its recognition of constitutional rights of candidacy, that does not mean that candidates do not have rights of free speech. To the contrary, the Court has repeatedly emphasized the importance of candidates' free speech rights and the centrality of those rights for the First Amendment. E.g., Brown v. Hartlage, 456 U.S. 45 (1982). If the state adopts legal regulations that have the effect of making it impossible for candidates to make themselves heard, then surely the state is infringing on the candidates' right to free speech. That would be true even if the contribution limits were binding only on the contributors, because the state cannot use indirect means to suppress speech any more than it can use direct means. In any event, typically the contribution limits also prohibit the candidate from receiving contributions over the limit. As I showed in my (correc!
ted) message last night, there is a similarly straightforward infringement of the freedom of association of contributors and candidates who wish to associate for the purpose of enabling the candidate to present his ideas to the public.
Does allegedly partisan or uncompetitive redistricting infringe on candidates' (or anyone else's) recognized First Amendment rights in a similarly straightforward way? Rick does not demonstrate that it does in his message, nor has anyone done so anywhere else to my knowledge. That is probably why the Court and most supporters of judicial intervention (_paceΠ_ Justice Kennedy) usually consider the question under the heading of Equal Protection. I do not believe they have made a very good case there either, but that is a different subject.
In his fourth numbered paragraph, Rick says that judges inevitably bring their general views on politics and government into their deliberations on election (and, presumably, many other constitutional) cases. That's a very rough paraphrase of Rick's argument, but I think it's good enough for the argument. I don't disagree with him. I think there are two ways in which it is true. The first is very general and perhaps nebulous. Except on very sharply defined problems (e.g., mathematical calculations), I think none of us entirely understands entirely the basis on which we form opinions and make decisions. There are more things in heaven and earth than are dreamt of in our philosophies, and our best thinking reflects innumerable intuitions of which we are aware to varying degrees. The second is much more specific and doctrinal. I alluded to it in passing last night. American constitutional jurisprudence, for better or for worse, is almost always a form of balancing. U!
nder the First Amendment, as under several other provisions, a state action that infringes a constitutional right can still be justified if it passes a "strict scrutiny" or "intermediate" or some other test. The kinds of structural concerns that Rick is talking about can thus be used to justify an attacked state action--openly and legitimately. There is nothing new or controversial about that.
I think Rick is arguing for something more than that. As I understand his position, it is that even in the absence of a constitutional right or other provision governing a state action, judges should be willing to strike down the state action if it violates their (or Rick's) conception of how democracy is supposed to work. If that is his position, I am very skeptical of it. In that case, the diffference between us is more than verbal and no quibble. If his position is softer than I am supposing, then his characterization of the difference may be correct.
For clarification, I think it is well to add one point on which I believe Rick and I do agree. Neither of us, in our postings on this thread, have intended to say anything about how the Vermont case or any other campaign finance issue should be decided. The discussion is about the jurisprudential underpinnings. Either a structuralist or a rights-based approach leaves open a full set of options on how particular campaign finance questions should be decided.
ΚΚΚΚΚΚΚΚΚΚΚ Best,
ΚΚΚΚΚΚΚΚΚΚΚ Daniel Lowenstein
ΚΚΚΚΚΚΚΚΚΚΚ UCLA Law School
ΚΚΚΚΚΚΚΚΚΚΚ 405 Hilgard
ΚΚΚΚΚΚΚΚΚΚΚ Los Angeles, California 90095-1476
ΚΚΚΚΚΚΚΚΚΚΚ 310-825-5148
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Pildes
Sent: Monday, June 05, 2006 6:35 AM
To: election-law@majordomo.lls.edu
Subject: The Vermont Case: II
3. I see Dan's comment as essentially a semantic quibble, not one that goes to a real substantive disagreement. But perhaps I'm wrong. Sure, we can always verbally reframe most structural or systemic concerns about the nature of democratic elections as involving the "right" of the candidates to participate in fair elections. Dan disagrees with my view, for example, that courts should constrain the intentional elimination of competitive elections by self-interested redistricters. In my view, courts have a role to play in protecting the groundrules of democracy from self-interested manipulation, which is a structural or systemic concern properly enforced by courts. But I could easily reframe that as the "right" of a candidate to participate in a fair election, or a meaningful election, or the right of a candidate not to be "discriminated" against. If a candidate has some kind of individual "right to receive money," to be able to run a meaningful campaign, it's not clear!
why he/she can't have a similar "right to receive a fair districting system," or similar "rights" to a meaningful election process. A second, more doctrinal problem with Dan simply putting the functional pea under a different verbal shell is that the law actually recognizes very few individual "rights" of candidates in elections. That's because elections are not like a speaker standing on the proverbial soap box in the park. Elections are so highly structured and regulated by law that candidates have few rights formally recognized by constitutional law.
4. More broadly, Dan's point confirms my view, at least as I see it. Judges and scholars almost inevitably recognize at some level that constitutional law must protect certain structural or systemic values that go to the integrity of democratic elections. But there's a great inability or reluctance to acknowledge this directly. Perhaps the reason is that judges come to this domain with legal frameworks in mind taken from conventional areas of individual rights or equality, and they simply transport those frameworks to the area of democratic elections without fully reflecting on what's unique about constitutional oversight of elections. Or perhaps they feel uncomfortable with the thought that judges are enforcing such structural concerns. So they smuggle those concerns into rubrics like "the right" of candidates to a "meaningfully competitive election system." That's what Dan has done in his comment, in my view. But we should not let that rhetoric distract us from the!
fact that it is, under one label or another, these structural concerns about the integrity and meaningfulness of democratic elections that constitutional law enforces when it does things like draw lines between contribution limits that are valid and those that are "too low."
Richard Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
212 998-6377