Wednesday, September 19, 2007

Public financing of elections

Ware Wendell asks:

If we're going to contemplate driving a stake through Buckley v. Valeo, shouldn't we go all the way and require full public financing of elections?

Wouldn't that ensure elections are more about ideas and responsiveness to constituents' concerns, rather than shooting slickly produced 30-second spots that are drilled into the public consciousness through heavy rotation?

Again, this is the kind of issue I don't discuss in the book, since it's not a "hard-wired" part of our current Constitution. The Supreme Court, of course, is split 5-4 on the constitutionality of relevant legislation, but I'm blessedly not very interested in what the Supreme Court says inasmuch as I'm focusing on how we might best design new constitutional provisions in lieu of the currently existing ones.

Larry Sabato has an extensive discussion of campaign financing in his book A More Perfect Constitution. One of his proposals is to "[r]eform campaign financing by permitting Congress to pass reasonable limitations on campaign spending by the wealthy from their family fortunes, and mandate partial public financing for general election House and Senate campaigns."

I have other things I must do today, but I certainly expect to return to the remaining posts and comments in the next couple of days and respond.

On "political questions"

Jeff House wrote as follows:

There is one area which interests me in particular. I am interested in the "political questions" doctrine, which seems to be one of a number of principles which render the Executive immune to law.

Most recently, the US Supreme Court has applied that doctrine to the Iraq War. Consequently, that discrete and insular minority known as US servicemen cannot raise the question of the illegality of the war in justifying their refusal to participate.

I hope some of your critique of the US Constitution will include discussion of the political questions doctrine.

This is something I certainly haven't considered so far, partly because the "political questions doctrine," assuming it still has real vitality in 2007--there is an extensive scholarly literature arguing that it has basically been dessicated since the Warren Court and its successors--is not "hard-wired" in the way that the subjects I'm primarily interested in are.

This would be an interesting issue to debate at a convention, i.e., exactly what degree of power we really wish to give to courts. The Israeli Supreme Court, particularly under its former President, Aharon Barak, basically recognized no limits on its jurisdiction. Critics argued that this meant that it intruded into areas, including the conduct of Israeli wars, that should properly be left to "political" branches. I don't have firm views on what sorts of limits we should place on courts and, even more to the point, exactly how a constitution might be drafted in order to achieve the optimal solution. Similar issues, incidentally, can be raised with regard to "standing." The Indian Supreme Court seems to give anyone in the country standing to raise any issues of constitutional controversy. Among other things, this helps to account for the sometimes decade-long delays in actually deciding cases. The US, on the other hand, has quite strict standing rules. Once more, I don't have firm views on the "right" balance between restrictive and expansive notions of standing. No doubt a subcommittee at a convention would be appointed to consider the specifics of the jurisdiction of courts, and I'd be intrigued by its ultimate conclusion.

Continuing the conversation

Again, let me convey my deepest thanks to those of you who have found this site and wish to engage in conversation about the possibilities of constitutional change. I want to try to respond to any and all comments and suggests, so let me start with the following:

Do you truly think, I say think, not believe because we have been flooded by peoples beliefs since the media brings us these soul searching effusions direct 24/7, there is a possible transformation of the Constitution? The courts seem to be conquering the territory historically reserved to amendments. Is there still the political will to envisage such profound transformations?

I certainly agree that there have been some significant changes in constitutional understandings over the past six years. Indeed, Jack Balkin and I have written about this under the rubric of the rise of the "national surveillance state," and, of course, there is the effort to enhance the powers o of the President. These are all important. BUT, with regard to the issues I am now most interested in, which I describe as the "hard-wired" features of the Constitution last considered by most people when they took boring courses (which my daughter advises me are no longer taught in most school systems) on the formalities of the American system of government, there has been little, if any, transformation since 1789, when George Washington was inaugurated. That is, we continue to have a bicameralism in which each house has an absolute veto over the other; we continue to have a presidential veto, which, to be sure, is far more frequently used today than it was for the first 70 or so years of the American republic; we continue to have equal voting power in the Senate by state; we continue to be encumbered, because of the fixed-term presidency, with presidents who have justifiably lost the confidence of a substantial majority of the public; and so on. I am a huge fan of Bruce Ackerman and his notion of amendment outside of Article V. (Steve Griffin has also developed this argument especially well.) But I think the limits of the Ackermanian "confidence" in such a form of amendment is found precisely in the hard-wired features that have not really been transformed at all. This is why we are forced to think of formal amendment and how such amendments might actually be brought about, with the absolutely necessary first-step being the national conversation that both Larry Sabato and I, whatever our specific differences, are trying to encourage.