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Monday, August 28, 2017

Violations of the Democratic Self-Government Interest

Following up on my last post on my article and our brief, the question about the democratic self-government interest is what s significant enough to constitute a violation of this interest.  Constitutional doctrine has generally recognized that violations of democratic self-government transpire when those outside of a political community interfere with actions that “go to the heart of representative government.”  This has usually foundational interference with the selection of important state officials across the three branches of state government.  The paradigmatic examples referenced in these cases is that states can limit those holding important state offices to those who can demonstrate requisite connections to the state.  The Constitution uses the language “inhabitant” to refer to those who can be elected to the House and the Senate (in both cases, elected officials must be inhabitants—for the House, of the state in which their district sits, and for the Senate of the state that they are representing).  The Supreme Court has also upheld limiting those who can be police or probation offices or who can teach in public schools, for instance.

Contributing to a state campaign is different than but substantially analogous to those activities.  Contributing to a state campaign does not involve trying to be the actual person holding the state office, but still can involve dictating the identity of the actual person holding the state office.  When a three-judge panel reviewed the constitutionality of the federal prohibition on foreign nationals contributing to federal campaigns, Judge Brett Kavanaugh wrote for the panel in stating that “spending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher.”  

The argument, though, can’t be that any effort to influence the election of another state violates the democratic self-government interest.  While it might make more sense to prohibit any out-of-state individuals from being Governor—or to prohibit any foreign nationals from contributing to campaigns, as in Judge Kavanaugh’s Bluman opinion—it does not make sense to prohibit all out-of-state contributions to state elections.  To prohibit anyone from New York City from contributing even one dollar to the campaigns of those running for the Governor of Alaska is excessive. 

The problem, therefore, isn’t that any out-of-state contributions violate the democratic self-government interest, but that the current balance of in-state and out-of-state contributions is way off.  Consider some empirical evidence from related contexts.  One recent study found that “[t]he average member of the House receive[s] just 11 percent of all campaign funds from donors inside the district.”  During one election cycle approximately a decade ago, campaign donors in five percent of the nation’s zip codes contributed more than three times more to campaigns than the rest of the country combined.  In one recent Alaska Senate race, 86 percent of the campaign contributions came from out of state

If the evidence is that the overwhelming majority of states have their elections controlled by those outside of the state, what does that mean (1) when or if the evidence of out-of-state control changes (2) for the states that export rather than import campaign contributions.  If the evidence did not demonstrate large amounts of contributions from out-of-state relative to in-state, then there wouldn’t be a violation of the democratic self-government interest.  This is perfectly consistent with the role that facts play in constitutional litigation.  A university may be acting consistently with the Fourteenth Amendment in having race-conscious remedies one day and then not the next day because of a change in facts.

After Shelby County v. Holder, rules that apply differently to one state than to another state can raise constitutional issues. Alaska is in a very different situation than California or New York or Texas.  Those three states feature state elections dominated substantially more by in-state contributions than do Alaska elections.  An Alaska law limiting out-of-state contributions to state elections could be constitutional if enacted by Alaska and unconstitutional if enacted by California.  Again, though, assuming application of the same principle, different facts justifying different outcomes is not entirely new to constitutional law.  The University of California at Los Angeles will be able to enact different race-conscious remedies than will the University of Alaska under the Fourteenth Amendment because of their different factual histories.

Posted by David Fontana on August 28, 2017 at 05:43 AM | Permalink


Is there a similar concern with campaign volunteers, or is the ratio of out-of-state to in-state volunteers typically low enough that this doesn't cause a concern for democratic self-government interest?

Posted by: jph12 | Aug 30, 2017 9:32:37 PM

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