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Full of Sound and Fury: Curbing the Cost of Partisan Opportunism in Congressional Oversight Hearings

Cristian R.C. Kelly

As Congress creates bigger and broader federal programs and administrative agencies, appropriates larger sums on their behalf, and delegates more of its legislative authority to their leaders, it takes on a commensurate responsibility to diligently oversee those agencies. Because time and resources available for congressional oversight are limited, a committee’s decision to conduct a formal oversight hearing implicates a substantial opportunity cost. At the same time, oversight hearings present committees with considerable opportunities for grandstanding and political gamesmanship. The voting public should therefore demand that congressional committees use oversight hearings efficiently, pursuing benefits like agency accountability, transparency, and democratic legitimacy, rather than the committees’ own partisan electoral advantage. However, because congressional committees are complex political institutions and because legitimate oversight benefits can often coincide with partisan political objectives, the distinction is not always easy to discern from the outside. With these nuances in mind, I argue that the outside observer can infer a committee’s underlying motivations and predict a given hearing’s likely benefits by looking for specific patterns in the way the hearing is conducted—i.e., the hearing’s “operational functions.”

The Politics of Legislative Drafting: A Congressional Case Study

Victoria F. Nourse, Jane S. Schacter

In judicial opinions construing statutes, it is common for judges to make a set of assumptions about the legislative process that generated the statute under review. For example, judges regularly impute to legislators highly detailed knowledge about both judicial rules of interpretation and the substantive area of law of which the statute is a part. Little empirical research has been done to test this picture of the legislative process. In this Article, Professors Nourse and Schacter take a step toward filling this gap with a case study of legislative drafting in the Senate Judiciary Committee. Their results stand in sharp contrast to the traditional judicial story of the drafting process. The interviews conducted by the authors suggest that the drafting process is highly variable and contextual; that staffers, lobbyists, and professional drafters write laws rather than elected representatives; and that although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process. The case study suggests not only that the judicial story of the legislative process is inaccurate but also that there might be important differences between what the legislature and judiciary value in the drafting process: While courts tend to prize what the authors call the “interpretive” virtues of textual clarity and interpretive awareness, legislators are oriented more toward “constitutive” virtues of action and agreement. Professors Nourse and Schacter argue that the results they report, if reflective of the drafting process generally, raise important challenges for originalist and textualist theories of statutory interpretation, as well as Justice Scalia’s critique of legislative history. Even if the assumptions about legislative drafting made in the traditional judicial story are merely fictions, they nonetheless play a role in allocating normative responsibility for creating statutory law. The authors conclude that their case study raises the need for future empirical research to develop a better understanding of the legislative process.

Partisan Fairness and Redistricting Politics

Adam B. Cox

Courts and scholars have operated on the implicit assumption that the Supreme Court’s “one person, one vote” jurisprudence put redistricting politics on a fixed, ten-year cycle. Recent redistricting controversies in Colorado, Texas, and elsewhere, however, have undermined this assumption, highlighting the fact that most states are currently free to redraw election districts as often as they like. This essay explores whether partisan fairness-a normative commitment that both scholars and the Supreme Court have identified as a central concern of districting arrangements-would be promoted by a procedural rule limiting the frequency of redistricting. While the literature has not considered this question, scholars generally are pessimistic about the capacity of procedural redistricting regulations to curb partisan gerrymandering. In contrast, this essay argues that a procedural rule limiting the frequency of redistricting will promote partisan fairness by introducing beneficial uncertainty in the redistricting process and by regularizing the redistricting agenda.

The Imperial Presidency Strikes Back: Executive Order 13,233, the National Archives, and the Capture of Presidential History

Stephen H. Yuhan

In November 2001, after delaying the release of President Reagan’s presidential papers, President Bush issued Executive Order 13,233, which limits the ability of the public to access presidential documents by giving the sitting president and former presidents an effective veto over the release of their records. In this Note, Stephen H. Yuhan argues that Executive Order 13,233 is an impermissible aggrandizement of presidential power at the expense of Congress, the National Archives, and the public. In an effort to find the outer limits of the President’s power to issue executive orders, Yuhan looks first to the watershed case of Youngstown Sheet & Tube Co. v. Sawyer. Finding that Youngstown fails to yield any definitive answers, Yuhan then draws on case law and legal scholarship on the President’s appointment and removal powers. Yuhan contends that preventing arbitrary decisionmakinginterested considerations rather than the public good, Yuhan concludes, the executive order violates separation of powers.

A Useful Conversation

William Creeley

Judges in Contemporary Democracy: An International Conversation

The inherent premise underlying Judges in Contemporary Democracy: An International Conversation may be stated simply: When judges talk, people listen. The attention is entirely deserved; the power of the judge in modern constitutional democracies, particularly those with provisions for judicial review, is extensive. Concordantly, the authority of the constitutional judge long has been in tension with democratic structure, where the will of the people, expressed through legislative act, otherwise would be considered supreme. What power does the judge have to determine the contours of constitutional imperatives, especially if judicial interpretation represents a divergence from popular sentiment and legislative decree? How can she purport to have an exclusive interpretative license on what otherwise might be thought of as common province, i.e., the securing terms of a shared constitution? The questions of legitimacy surrounding the countermajoritarian potential of judges exercising (or merely asserting) the power of judicial review have become particularly pressing following the contemporary incorporation of forms of judicial review throughout Western European countries in the latter half of the past century. No longer a vestige of American exceptionalism, judicial review-and the accordant power of the judge-has become an integral feature of the modern democratic state.

Bringing the People Back In

Daniel J. Hulsebosch

Review of The People Themselves: Popular Constitutionalism and Judicial Review

Almost a century ago, Charles Beard’s study of the American Founding, An Economic Interpretation of the Constitution, set the terms of debate about constitutional history for the Progressive era and informed the way lawyers viewed the Constitution for even longer. In The People Themselves, Larry Kramer has quite possibly done the same for a new generation of lawyers. Beard took an irreverent, tough-minded approach to the American Founding; Kramer is deeply skeptical of the conventional way that the Constitution is defined and offers an alternative that puts ordinary people, rather than judges, at the center of constitutional interpretation. If there is another Progressive era, it now has one of its foundational texts.

Gingles in Limbo

Luke P. McLoughlin

Coalitional Districts, Party Primaries and Manageable Vote Dilution Claims

In the past two decades, minority plaintiffs claiming unlawful vote dilution under section 2 of the 1965 Voting Rights Act have been required to pass the three-pronged test elaborated by the Supreme Court in Thornburg v. Gingles. In light of a recent Supreme Court case extolling coalitional districts, the future of the first prong requiring the minority bloc to demonstrate it is sufficiently large and compact to comprise a majority of a single-member district is uncertain. These districts, eluding easy classification but understood to possess significant minority voting power without the minority bloc comprising a majority of the district, have been identified as shields against section 2 and section 5 suits challenging redistricting maps that reduced the number of majority-minority districts. In this Note, Luke McLoughlin addresses how courts should approach section 2 claims by minority blocs claiming dilution of a coalitional district itself. Arguing that Gingles‘s framework of bright lines must be respected in any reconsideration of the first prong, McLoughlin identifies the ability of the minority bloc to comprise a numerical majority of a party primary as a potential criterion for defining coalitional districts and a potential benchmark for considering section 2 claims. As McLoughlin shows, however, such a criterionwould be difficult to apply in practice,as internal party rules and state ballot access laws may thwart the creation of a viable coalition. Accuracy requires a fact-based inquiry into the coalition, while Gingles urges a bright-line approach. Eschewing a wholesale renovation of the Gingles framework, McLoughlin concludes that the two countervailing concerns are best reconciled by relying on Gingles‘s latter two prongs and examining population within the primary, while remaining skeptical at the totality-of-the-circumstances stage of whether a true coalition has been formed. If courts alter the first Gingles prong to permit claims by minority blocs unable to comprise a majority in a district, McLoughlin concludes that courts must retain a corresponding alertness to the interstitial role of parties, which are capable of both facilitating and obstructing coalition politics.

Conversation, Representation, and Allocation: Justice Breyer’s Active Liberty

Michael A. Livermore, D. Theodore Rave

There seems to be a public perception that the members of the current, often divided, Supreme Court vote for partisan rather than principled reasons. As recent confirmation hearings have become more heated and polarized, this belief has only crystallized. In Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer challenges this perception through a thoughtful discussion of the constitutional commitments that inform his decisions. This book does not provide a comprehensive theory of constitutional and statutory interpretation; rather, Active Liberty is important because in it, Justice Breyer gives the American public insight into the constitutional themes and values that he draws on when deciding cases. In particular, Justice Breyer focuses on one constitutional value that he believes has been underappreciated: a commitment to democratic participation and self-government which he calls “active liberty.” Although Justice Breyer recognizes that other constitutional values are important, he believes that active liberty should play a more prominent role in constitutional adjudication.

Stopping “Winks and Nods”: Limits on Coordination as a Means of Regulating 527 Organizations

Meredith A. Johnston

The 2004 federal elections witnessed an unprecedented rise in activity by independent political organizations called “527s.” The current campaign finance regime limits how much individuals and groups may contribute to candidates, parties, and political committees, but leaves 527s virtually unregulated. As a result, wealthy donors were able to circumvent federal contribution limits by giving large amounts to 527 groups. In 2004, these groups raised millions of dollars, which they spent on highly influential advertisements and voter mobilization campaigns. The groups were so successful that they are expected to play a significant role in the 2006 and 2008 elections, and both Congress and the Federal Election Commission (FEC) have considered regulating the groups more closely.

This Note examines the role of 527 organizations in the 2004 election and proposes ways to prevent future circumvention of the campaign finance regime. It argues that Congress should address the 527 problem by passing legislation regulating coordination between outside groups and political campaigns. A statute regulating coordination presents several benefits over current proposals for 527 reform. First, it is more likely to satisfy the constitutional limits on campaign finance regulation. Second, it provides a long-term solution that is not dependent on how a group is classified under tax or campaign finance law. Third, it will encourage donors seeking to buy influence over candidates to give smaller, “hard money” contributions. Finally, congressional legislation will avoid the delay and confusion seen in recent FEC efforts to regulate coordination.

Transparency and Participation in Criminal Procedure

Stephanos Bibas

A great gulf divides insiders and outsiders in the criminal justice system. The insiders who run the criminal justice system—judges, police, and especially prosecutors—have information, power, and self-interests that greatly influence the criminal justice system’s process and outcomes. Outsiders—crime victims, bystanders, and most of the general public— find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result of this gulf, a spiral ensues: Insiders twist rules as they see fit, outsiders try to constrain them through new rules, and insiders find ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law’s substantive goals. The gulf clouds the law’s deterrent and expressive messages, as well as its efficacy in healing victims; it impairs trust in and the legitimacy of the law; it provokes increasingly draconian reactions by outsiders; and it hinders public monitoring of agency costs. The most promising solutions are to inform crime victims and other affected locals better and to give them larger roles in criminal justice. It also might be possible to do a better job monitoring and checking insiders, but the prospects for empowering and educating the general public are dim.