The federalist safeguards of politics.

• Author: Johnstone, Anthony
• Position: Introduction through III. The Distinctiveness of State Republicanisms A. Legal Distinctions 2. Constituencies and Districting, p. 415-450

INTRODUCTION I. REPUBLICANISM, PERFECTIONISM, AND PLURALISM A. Republican Pluralism B. Republican Perfectionism II. The Nationalization of State Politics A. Congressional Nationalization B. Executive Nationalization C. Judicial Nationalization III. THE DISTINCTIVENESS OF STATE REPUBLICANISMS A. Legal Distinctions 1. Election Administration 2. Constituencies and Districting 3. Parties 4. Campaign Finance 5. Other Factors B. Rules, Regimes, and Systems of Republicanism C. The Persistence of State Political Cultures 1. Participation and Voting Turnout 2. Equality and Campaign Finance 3. Competition and Contested Races 4. Representation and Policy Alignment IV. The Federalist Safeguards of Politics A. State Means B. Republican Ends 1. Competition 2. Equality 3. Representation 4. Participation CONCLUSION INTRODUCTION

"The United States shall guarantee to every State in this Union a Republican Form of Government ..." (1) These words expound the fundamental federal constitutional safeguard of representative democracy in American states. Conventional wisdom portrays this safeguard for a "Republican Form of Government" as irrelevant to contemporary constitutional law and politics because the Supreme Court--and Congress, for that matter--will not enforce the Guarantee Clause. (2) Yet the real problem with the Guarantee Clause is not that the United States enforces it too little, but that it enforces it too much. The Clause's political theoretical contents have spilled into other enforceable constitutional guarantees. There is no shortage of theories proffered to perfect various conceptions of republicanism with the continuing expectation of federal, usually judicial, enforcement. (3) The Supreme Court, and to a lesser extent the national political branches, have taken the law of democracy beyond the basic rights of political equality expressed elsewhere in the Constitution into the deeply contested realm of republican theory: accountability and participation, majority rule and minority representation, deliberation and responsiveness, equality and liberty of influence, legitimacy and self-expression, and competition and stability. The interaction of these competing perfectionist conceptions of republicanism has led to the incoherence of the constitutional law of politics in the States. Federal efforts have produced a system in which the States, the Union, and the Republican Form of Government would be better served by letting states do more, and the United States less, to fulfill the guarantee.

There is an alternative pluralist conception of the republican guarantee. The Supreme Court once conceded, even while it opened the door to the one-person one-vote principle, "the lack of criteria by which a court could determine which form of government was republican." (4) Despite this concession, however, questions about the Republican Form of Government pervade federal supervision of state election law by the Court and its coordinate branches. The Court's subsequent interpretation of the First and Fourteenth Amendments, and of our federalism, masked underlying debates about distinct conceptions of republicanism. Meanwhile the People, through the Constitution itself, refined the republican guarantee by extending the right to vote to all races, (5) women, (6) the poor, (7) young adults, (8) and the People directly in electing their Senators. (9) Congress further extended the guarantee through legislation enforcing these amendments, thereby enabling the President to implement the guarantee in the States. (10) The Guarantee Clause itself, and with it any distinction between the States and the Union in the constitutional regulation of politics, faded from view.

The submergence of the broad republican guarantee by these narrower constitutional commitments helped the federal government improve the forms of government in the States. For a time, a federal consensus on basic political equality took the United States several steps toward a more perfect union. The emergence of primaries eventually engaged more voters in the process of party nominations. State and federal campaign finance regulation brought transparency and some measure of equality to campaigns. In the first few decades after passage of the Voting Rights Act, the Constitution empowered, the Congress enacted, the Executive enforced, and the Court upheld a powerful right of access to the franchise. (11) This consensus, however, has long since ended. As the United States nears the substantial fulfillment of basic political equality in the Second Reconstruction, the current political stalemate among the federal legislative, executive, and judicial branches produces a one-size-fits-all republican system that is as dysfunctional as it is dominant.

After the Court in Bush v. Gore brought to light the "common, if heretofore unnoticed, phenomenon" of serious problems in local administration of federal elections, (12) the President still conceded more than a decade later, "[W]e have to fix that." (13) In Citizens United, the Court prematurely heralded "[a] campaign finance system that pairs corporate independent expenditures with effective disclosure" after invalidating restrictions on corporate campaign expenditures. (14) But a gridlocked Federal Election Commission and Congress have repeatedly failed to take executive or legislative action necessary to implement such a system. The Court suggested in Shelby County v. Holder, after invalidating the Voting Rights Act's central enforcement mechanism, that "Congress may draft another formula based on current conditions" to address discriminatory voting practices, (15) a suggestion unlikely to be taken up in the foreseeable future. The one recent case in which the Court acknowledged dysfunction in federal election regulation, the inaction of the understaffed Election Assistance Commission in Arizona v. Inter Tribal Council, (16) laid bare fundamental yet vague divisions among the Justices about the scope of the federal government's power to structure elections in the states. (17) Even the Guarantee Clause itself resurfaced in a challenge to a Colorado tax limit initiative. (18) The Court's decision in Arizona State Legislature v. Arizona Independent Redistricting Commission undermined the plaintiffs' standing in the Colorado case, but not before dropping a provocative footnote that "[p]erhaps not all claims under the Guarantee Clause present nonjusticiable political questions." (19)

This Article argues that states do and should play as important a role as the federal government in articulating and implementing the law governing state political processes, or in formal terms, their republican forms of government. (20) The argument has four parts. Part I introduces the basic meaning of the guarantee and its amendment. Beyond a consensus that holds our republicanism to require basic political equality, various perfectionist conceptions of a republican form of government diverge, giving way to the essential pluralism of republican governments in a federal system. Part II explains how the Supreme Court, Congress, and the Executive are now unable to articulate, let alone implement, a workable national consensus on any perfectionist republicanism beyond a thin conception of those basic rights to political equality. Part III describes the states as the source of persistent pluralism in their republican forms of government, as both legal systems and political cultures that produce and are sustained by those systems. Part IV argues that these distinctions in how states articulate and implement their own plural versions of republicanism are crucial to efforts toward reforming, let alone perfecting, republicanism at the national level. Given the unsettled visions of republicanism at the national level and the structural autonomy the states must retain at the core of our federal system, a plurality of views on republicanism among the states is not only durable but desirable.

1. REPUBLICANISM, PLURALISM, AND PERFECTIONISM

   In defending the Constitution as "strictly republican," James Madison argued that it established a composition of both a "federal form [of government], which regards the Union as a Confederacy of sovereign states[,]" and "a national government, which regards the Union as a consolidation of the States." (21) We might recognize the same distinction in the Constitution's guarantee of republicanism in the States. The Guarantee Clause itself, alongside other direct constitutional guarantees of basic political equality such as the extension of voting rights, contains both federal and national modes of implementing republicanism.

   The federal mode establishes the necessary terms for participating in the confederation, such as the Guarantee Clause's prohibition of state aristocracies that corrupt neighboring states, or the Fifteenth Amendment's prohibition on race-based discrimination in voting that undermines the reconstructed Union. (22) These provisions also contain important nationalizing elements in terms of setting a floor of basic political equality among individual citizens (no monarchs) and between classes of citizens (no abridgement of the vote because of race) within the States. Such rules unify the nation under a certain broad conception of republicanism even as they preserve the confederation of autonomous States. For example, in addition to the Guarantee Clause, the Constitution empowers the States to prescribe the time, place, and manner of federal elections subject to congressional alteration. (23) Such provisions serve as the Union's shield to protect the federal republic against dangerous or uncooperative non-republican state governments. Primarily, the Constitution directly governs state political structures as a federal check against state departures from republicanism that might jeopardize the national government. Outside of such threats, the Constitution reserves to the States a sphere of autonomy in...