Article I, Section 8 of the Constitution, affords The Congress of the United States the mandate to “… provide for the common Defense and general Welfare of the United States” and the power to “… make all laws which shall be necessary and proper for carrying into Execution, the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any department or Officer Thereof.” As you read these words, it is evident that the intention of the Framers was that the bulk of all governmental power should ultimately lie in the legislative branch. After all, Congress represents the marriage of the concepts of the representative republic with democratic principles. However, in recent times, scholars and practitioners have debated whether the legislature has become too powerful, relative to the other two branches. For this Discussion, use the LexisNexis Academic or LegalTrac databases at the School Library or another source and find two scholarly articles published in the past 3 years on the topic of congressional power or partisanship. Also, review the Learning Resources and consider the changes in the power of the legislative branch and its implications.Post a description of the powers of the legislative branch that have either grown or diminished in the 21st century and explain how. Use the Learning Resources or current literature to support your response. Then, describe at least two strategies major political parties use to enhance voting loyalty among their party’s caucus, particularly regarding key congressional votes. Explain how these strategies might work.Be sure to support your postings and responses with specific references to the Learning Resources.
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Copyright (c) 2016 The Trustees of Indiana University
Indiana Law Review
2016
Indiana Law Review
50 Ind. L. Rev. 265
LENGTH: 8596 words
ARTICLE: CAN CONGRESS PLAY A ROLE IN REMEDYING DYSFUNCTIONAL POLITICAL
PARTISANSHIP?
NAME: MARK D. ROSEN *
BIO:
* Professor, IIT Chicago-Kent College of Law (mrosen1@kentlaw.iit.edu). I received very
helpful comments from my colleagues at an early stage workshop at Chicago-Kent. This Article is a revised version of the presentation given during the Indiana Law Review Symposium
held on November 6, 2015 entitled Partisan Conflict, Political Structure, and Culture.
TEXT:
[*265] INTRODUCTION
A recent situs of deep partisan contestation, and likely a contributing cause of dysfunctional
partisanship, is what might be called the “rules-of-the-road” that operationalize our representative
democracy–for example the rules governing voter eligibility, how votes are aggregated for purposes
of selecting representatives, and how political campaigns are funded. n1 Controversies concerning
voter identification requirements, racial and political gerrymandering, and campaign finance laws
have been sharply divisive along partisan lines. n2 And how these matters are resolved–who can and
cannot vote, how district lines are drawn, and how campaigns are funded–influences what kind of
candidates are (and are not) elected to public office, and likely affects the degree of political polarization among elected officials. n3
The Constitution vests virtually all initial power for establishing the rules-of-the-road in the
states, but grants Congress the power to displace those state rules through the Time, Place, and
Manner Clause n4 and several other provisions. n5 Because Congress has not exercised these
powers much, most of today’s rules-of-the-road are state law. n6 For example, state law is the primary source of registration requirements for both federal and state elections. n7 In addition, states
draw the district lines for both the House of Representatives and for state legislative houses. n8 One
important exception to state law dominance regarding the [*266] rules-of-the-road of federal
elections is campaign finance, which is substantially governed by federal law. n9
Until now, those dissatisfied with the rules-of-the-road have mainly directed their disgruntlements to courts, bringing constitutional challenges grounded in equal protection and free speech, as
well as statutory claims relying primarily on the Voting Rights Act. While the Voting Rights Act has
n10
been spectacularly successful in expanding the franchise, n11 lawsuits have had far less success in
relation to the other rules-of-the-road. n12
In past work, I have suggested two pivots to improve representative democracy’s
rules-of-the-road. n13 The first is substantive, and it concerns the nature of the constitutional interest
at stake. n14 Until now, courts have understood that problematic rules-of-the-road can threaten individual rights protected by the Equal Protection and Free Speech Clauses, but they have overlooked
a structural constitutional principle of potentially greater import that might be called “Republican
Legitimacy.” n15 Republican Legitimacy encompasses the preconditions for the republican forms of
government that the Constitution establishes for the federal government and guarantees to the states
to operate legitimately and successfully. n16 Recognizing the structural constitutional principle at
stake is crucial because individual rights cannot be relied upon to protect structural interests, for two
main reasons. n17 Rights-focused analysis readily overlooks the structural harm. n18 Moreover,
several constitutional sub-doctrines that may be sensible in relation to individual rights are inapposite
to structural constitutional interests, and in fact have blocked effective judicial review of structural
harms to Republican Legitimacy. n19
The second pivot is institutional: rather than turning only to courts, we must rely increasingly on
legislators, principally though not exclusively Congress. n20 Legislatures must be relied upon partly
because courts have found it difficult to develop judicially administrable standards to police the
rules-of-the-road. n21 To be sure, courts’ difficulties are partly an artifact of their having misconceived the nature of the constitutional harm: their having considered only individual rights, [*267]
overlooking harm to the structural constitutional principle of Republican Legitimacy. While correcting that misconception should n22 facilitate judicial review, the judicial role still would not be
simple because political considerations inevitably, and appropriately, play an important role in selecting the rules-of-the-road. n23 Politics’ pervasive persistence is why legislatures must play a central role in choosing the rules-of-the-road. At most, courts can play a checking function. n24
My insistence that Congress be relied on to improve representative democracy’s rules-of-the-road
may be criticized as a “self-defeating proposal” that asks legislators to overcome the very problems I
am trying to remedy. n25 Simply stated, insofar as legislators created the problematic
rules-of-the-road in the first place, n26 how can they be relied on to clean up their mess?
This is a serious objection. But two separate considerations suggest that this Self-Defeating
Proposal Objection (“the Objection”) may be inapt and, at the very least, is not definitive. First, until
now, legislators have not appreciated that the rules-of-the-road implicate the Constitution. n27 This
must, and can, change. n28 The Objection thus presupposes that legislators will not take seriously
their oaths to uphold the Constitution after they realize that Republican Legitimacy’s security depends
upon the rules-of-the-road within their control. n29 The proposition that legislators will willfully
disregard their constitutional obligations is not axiomatic, and indeed may be mistaken. n30
Second, the Self-Defeating Proposal Objection blurs the distinction between state legislators and
Congress. n31 Virtually all of today’s problematic rules-of-the-road are state law. n32 Congress,
however, is different from state legislatures in ways that may make it less susceptible to the malfeasances that have occurred at the state level. n33 For example, Congress’s members may, on average, be more [*268] competent than those who serve in state legislatures. This is because state
legislatures frequently serve as Congress’s junior varsity, and also because each member of Congress
is selected from a larger population. Additionally, the greater media attention Congress garners may
subject it to greater political accountability that inclines it to act more responsibly than state legislatures.
This Article develops several components of a response to the Self-Defeating Proposal Objection.
First, it shows Congress’s powers to enact n34 representative democracy’s rules-of-the-road. n35
Second, the Article argues that selecting the rules-of-the-road substantially belongs to the domain of
constitutional decisionmaking, insofar as problematic rules threaten the Constitution by undermining
the legitimacy of our representative democracy’s laws. n36 Third, the Article raises a question that
follows from the first two points, and that takes direct aim at the Self-Defeating Proposal Objection:
might Congress be more apt to act responsibly upon realizing that ensuring appropriate
rules-of-the-road belongs to the domain of constitutional decisionmaking? n37
Although proponents of the Self-Defeating Proposal Objection might scoff at this suggestion, it
would be premature to conclude that Congress is incapable of functioning as a responsible constitutional decisionmaker. This conclusion is based partly on history: David Currie’s extraordinary series
of books, The Constitution in Congress, depicts a sustained era during which Congress appears to
have engaged in serious and responsible constitutional decisionmaking. n38 Resisting the cynicism
that grounds the Objection is necessary if we are to avoid the error of confusing what is for what must
be. Although the proposition that Congress can serve as a responsible constitutional decisionmaker
may strike many today as naively fanciful, n39 present day deficiencies may be correctible [*269]
rather than endemic. A lacuna in professional norms may be among the causes. n40 There is little, if
any, sense among today’s legislators that a special set of norms, different from those at play in ordinary politics, properly operates during constitutional decisionmaking. A work-in-progress of mine
n41
takes aim at this modern sensibility, arguing that special behavioral norms properly apply to
Congress when it engages in constitutional decisionmaking. n42 These norms would increase the
likelihood of Congress responsibly engaging in constitutional decisionmaking, further defanging the
Self-Defeating Proposal Objection. n43
This Article’s argument comes in three parts. Part I shows that Congress has substantial power to
enact the rules-of-the-road for both federal and state elections. Part II argues that deciding whether to
enact federal rules-of-the-road, and if so, what to enact–the whether and what questions in relation to
the rules-of-the-road–are substantially influenced by constitutional considerations and, for that reason, belong to the domain of constitutional decisionmaking. Part III suggests the very fact that the
whether and what questions belong to the domain of constitutional decisionmaking may increase the
likelihood Congress will deal with the rules-of-the-road in a responsible manner, thereby countering
the Self-Defeating Proposal Objection.
I. CONGRESS’S POWER TO REGULATE REPRESENTATIVE DEMOCRACY’S
RULES-OF-THE-ROAD
Congress’s power concerning representative democracy’s rules-of-the-road must be separately
analyzed in relation to the federal and state governments.
A. Federal Elections
There are three sources of congressional power to enact the rules-of-the-road in relation to the
federal government: (1) the “Times, Places and Manner” [*270] Clause, n44 (2) the “Chusing of
Electors” Clause, n45 and (3) the Necessary and Proper Clause. n46
The Court consistently has ruled that Congress has broad legislative authority under the “Times,
Places, and Manner” Clause (“TPM Clause”). n47 “Congress has plenary and paramount jurisdiction
over the whole subject” of the times, places, and manner of congressional elections. n48 Congress has
authority to
provide a complete code for congressional elections, not only as to times and places, but
in relation to notices, registration, supervision of voting, protection of voters, prevention
of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and
making and publication of election returns; in short, to enact the numerous requirements
as to procedure and safeguards which experience shows are necessary in order to enforce
the fundamental right involved. n49
Although the TPM Clause speaks only of “[e]lections,” the Court has held that Congress’s power
extends to primaries. n50 Pursuant to the “Chusing the Electors” Clause, Congress’s power in relation
to presidential elections appears to be coextensive with its power under the TPM Clause to regulate
congressional elections. n51 The Court has consistently upheld regulations of both congressional and
presidential elections by only analyzing Congress’s TPM Clause powers. n52
The TPM and “Chusing of Electors” Clauses likely give Congress all the power it needs to regulate the rules-of-the-road of federal elections. n53 If they did not, any gaps in congressional power
would be filled by the Necessary and Proper Clause. n54 The Constitution creates an essentially
republican federal government, insofar as the President and members of Congress are selected by the
People. n55 The Necessary and Proper Clause’s grant to “[carry] into Execution the . . . Powers vested
by this Constitution in the Government of the United States.” n56 [*271] includes the power to
operationalize the federal representative democracy the Constitution creates. Because operationalizing representative n57 democracy is precisely what the rules-of-the-road do, the Necessary and
Proper Clause would provide Congress any and all remaining powers to enact the rules-of-the-road
for federal elections not granted by the TPM and “Chusing of Electors” Clauses. n58
B. State Elections
Congress’s ability to enact the rules-of-the-road for state elections is less certain than its power to
regulate federal elections, on account of both the source of its power and federalism-based limits to
that power. Even so, Congress likely has substantial powers to create the rules-of-the-road for state
elections.
1. Congress’s Power in Relation to State Rules-of-the-Road.–There is a direct textual source for
congressional power to enact rules-of-the-road for state elections. The Guarantee Clause provides
“[t]he United States shall guarantee to every State in this Union a Republican Form of Government,”
n59
and long has been understood by the Supreme Court to be “primarily a legislative power [that]
resides in Congress.” n60 On the other hand, Congress has relied on its Guarantee Clause powers
only a few times, n61 and has never relied on it to enact a state rule-of-the-road. n62
Yet even without direct precedent, congressional power to regulate the states’ rules-of-the-road
seems to rest on strong grounds. Congress’s power to guarantee representative governments in the
states plausibly includes the substitution of federal rules for state rules-of-the-road that threaten the
states’ republican forms of government by undermining their legitimacy. And Congress’s power under
the Guarantee Clause extends to prophylactic rules-of-the-road, especially because [*272] Congress reasonably could conclude that many of today’s rules-of-the-road threaten the legitimacy of
representative government. Prophylactic n63 powers are naturally grounded in that clause’s language
of “guarantee,” which is readily construed to authorize proactive steps to preempt possible harm to
republicanism.
Congress’s power to enact some rules-of-the-road for state elections also may be grounded in
Section Five of the Fourteenth Amendment. n64 Contemporary case law understands that state-made
rules-of-the-road may threaten the equal protection and free speech rights secured by Section One of
the Fourteenth Amendment. n65 From this it follows that Congress has legislative power under
Section Five to enact those rules-of-the road that would help enforce these Fourteenth Amendment
rights. And congressional power under Section Five extends to prophylactic enactments, as the
Court recently reconfirmed. n66
But there are two reasons why Section Five cannot be the exclusive source for all the state
rules-of-the-road that might be appropriate for Congress to enact. The first is the Supreme Court’s
recent restrictions of Congress’s Section Five powers in Boerne v. Flores n67 and its progeny.
Boerne’s requirement that Congress legislate only if there is already a pattern of state infringement
n68
might unduly restrict Congress’s ability to act prophylactically, notwithstanding that case’s holding
that Congress’s Section Five powers authorize prophylactic legislation. n69 By way of contrast, the
power to guarantee a republican form of government [*273] more readily encompasses prophylactic enactments, insofar as ” guarantee” naturally includes proactive steps taken before any harms
materialize.
Second, Section Five is substantively inadequate. While Section Five authorizes legislation to
enforce the individual rights protected by Section One, n70 some rules-of-the-road threaten constitutional interests that do not fall within Section One. For example, the constitutional interest that all
states have a republican form of government is not reducible to the individual rights protected by
Section One; republicanism is a structural constitutional interest that is conceptually distinct from,
and whose contents do not perfectly overlap with, the fundamentally individual rights protected by
equal protection and free speech. n71 Constitutional interests derived from republicanism, but not
encompassed within individual rights, accordingly cannot be protected by legislation enacted under
Section Five. Insofar as the rules-of-the-road implicate republican interests not covered by individual
rights, Section Five cannot serve as the exclusive source for federally enacted rules-of-the-road.
2. Federalism Limits on Congressional Rules-of-the-Road.–Unlike federal elections, Congress’s
power to enact rules-of-the-road for state elections is limited by federalism considerations. This is
likely true n72 regardless of the constitutional power upon which Congress relied, be it the Guarantee
Clause or Section Five of the Fourteenth Amendment. n73 And the federalism costs of federally-enacted rules-of-the-road for state elections is no mere academic nicety. This is because republicanism does not entail a unique set of rules-of-the-road, but is consistent with many different possibilities. In choosing which rules-of-the-road to select among the set of constitutionally acceptable
options, a state legitimately might take account of such considerations as its own history, its economic
and ethnic demographics, and the eminently political views it might have as to how citizens’ preferences should be aggregated for purposes of selecting the state’s policies. Interfering with the states’
ability to make such decisions deeply implicates federalism. n74
[*274] That there are federalism-based limits does not mean that congressionallyenacted
rules-of-the-road for state elections would be per se unconstitutional. n75 But at the very least federalism demands that before enacting any state rules-of-the-road, Congress must carefully consider
whether it is necessary, in some meaningful sense, to do so. Without purporting to fully specify what
this would mean, it at least would entail a deliberate and informed judgment that the above-mentioned
costs to federalism are offset by the risks to republicanism of continuing to allow states to select a
particular rule-of-the-road. n76
I. WHY SELECTING THE RULES-OF-THE-ROAD BELONGS SUBSTANTIALLY TO THE
DOMAIN OF CONSTITUTIONAL DECISIONMAKING
Part I argued that Congress has constitutional power to enact many of representative democracy’s
rules-of-the-road. This Part II argues that whether Congress enacts rules-of-the-road, and what rules it
enacts–what I shall refer to as the whether and what questions–are substantially informed by constitutional considerations. Accordingly, the whether and what questions in relation to the
rules-of-the-road belong to the domain of constitutional decisionmaking.
A. Avoiding Confusion
The claim presented in this Part II can be misconstrued in a manner that would make it duplicative
of Part I’s argument. To head off potential confusion, I will labor to make clear where Part I’s argument ends and Part II’s begins. That is best done by way of an example.
Imagine that to encourage new vaccines that may save large numbers of lives, Congress considers
whether to enact the Lawsuit Relief Act–legislation that would shield drug companies from lawsuits
brought by the people who (inevitably) would suffer harmful side-effects from even socially beneficial and properly manufactured vaccines. The threshold question that n77 Congress should consider
is a constitutional one: does it have the power to enact legislation of this sort? If it does, Congress next
would have to decide how to trade-off the side-effect sufferers’ interests, on the one hand, against the
interests of the drug companies and of the people who stand to benefit from the vaccine, on the other.
[*275] Determining how to trade-off among these interests turns on facts n78 and valueladen
judgments. n79 The considerations informing th …
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