Volume 77, Number 6

December 2002

The Potential Effects of Nondeferential Reviews on Interest Group Incentives and Voter Turnout

Daniel J. Schwartz

In this Note, Daniel J. Schwartz explores the connections between voter turnout, interest group mobilization, and the standards by which courts assess the constitutional validity of legislative enactments. As traditionally conceived, democracies only function properly when citizen participation in government is widespread and knowledgeable. Since the 1960s, however, few citizens have voted in American congressional elections and fewer still have been aware of the issues at stake. While political scientists attribute this situation to various causes, they agree that an important factor is a lack of electoral mobilization—that is, the process by which interest groups and others stimulate citizens to go to the polls. Drawing from public choice theory, which posits that interest groups use political contributions and electoral support to buy rent-seeking laws from legislatures, Schwartz suggests that groups engage in little electoral mobilization because they successfully obtain the rents they seek through other means, such as lobbying and litigation. He argues that courts reinforce this state of affairs by reviewing the constitutionality of most legislation with a very deferential standard, thereby protecting the value of lobbying and litigation as means of cementing legislative bargains. Schwartz thus proposes that the deferential review of a statute should be contingent on a showing of fifty-percent turnout in the two elections prior to its enactment. He argues that such a condition would decrease the value of lobbying and litigation relative to that of mobilization, which, in turn, would furnish interest groups with the right incentives to turn out voters at election time.