Heather K. Gerken

The Taft Lecture: Living Under Someone Else's Law

This paper explores the differences between vertical and horizontal federalism. Vertical federalism is so familiar that we can recite the reasons to value states’ role in our federal system as easily as children recite the alphabet. The law of horizontal federalism, in contrast, has mostly developed within its doctrinal silos - the Dormant Commerce Clause, personal jurisdiction, the Full Faith and Credit Clause.This papers makes two points. First, it’s both strange and instructive that the two halves of “Our Federalism” have developed so differently given that they are both preoccupied with the same problem: what happens when one government invades another’s turf? Vertical federalism offers a single narrative for adjudicating federal-state relations. We ask the same question in every case - how should we think of federal-state relations writ large? - and unsurprisingly gets the same answer in every case. Horizontal federalism, meanwhile, resolves state-federal tussles issue by issue, problem by problem, domain by domain. Rather than focusing on a single big question - how should we think of state-state relations writ large? - it emphasizes context and facts on the ground and a myriad of doctrinal questions writ small. It thus lacks what vertical federalism theory has long provided: a broad-gauged account of how our governing institutions ought to interact. Second, if we’re going to build an overarching narrative for horizontal federalism, it shouldn’t be the story scholars have offered thus far. The moral of that story is that no one should be forced to live under someone else’s law. But that tale is premised on an outdated attachment to state sovereignty and an unrealistic impulse to tamp down on state spillovers. The paper thus sketches an alternative, democratically inflected account that we should deploy going forward.

The Party’s Over: McCutcheon, Shadow Parties, and the Future of the Party System

McCutcheon v Federal Election Commission can only be understood against the deep shifts taking place in American politics. By some measures, party identity is very strong, and the Democratic Party and the Republican Party are at the height of their power. Other measures suggest that the parties are losing their grip on politics to “outside groups” – SuperPACs and nonprofits – which have taken over a startling array of core party functions. But these “outside groups” are are deeply and durably aligned with one party or the other and run by consummate party insiders. That’s why we call them shadow parties. The explosive growth of outside groups explains why many campaign-finance supporters saw a silver lining to Shaun McCutcheon’s suit. McCutcheon struck down the FECA’s aggregate limits, which capped how much hard money into one donor could give to candidates and party committees in a given year. The crude version of the “silver lining” argument suggests that McCutcheon will shore up the parties against outside spenders. The more nuanced argument – and the emerging conventional wisdom in the field – is that McCutcheon will level the playing field between the official party leaders and the shadow parties by allowing donors to pour more money into the official party structure.We are skeptical. Some funds that would have flowed to outside groups will seep back into the official party structure, but the effect will be modest. Moreover, the crude argument – pitting “outside” funders against “the parties” – fundamentally misdiagnoses the problem. The real problem with the growth of shadow parties has less to do with the “strength” or “weakness” of the official parties relative to outside groups and more to do with who exercises power within the parties writ large. What we are witnessing is not outside spenders pulling power away from the parties but an intraparty battle for the heart and soul of the party writ large. Although we see this battle as an intraparty fight, its likely outcome is one that “small-d” democrats ought to find disquieting. The parties have been important sites of pluralist competition. The shift toward shadow parties threatens to flatten the party structure and inhibit pluralist politics. Money isn’t just shifting from one place to another within the party writ large; it is shifting from one type of institution to another, quite different type of institution. Compared to the official parties, the shadow parties are more hierarchical and less porous. They are closed to most and controlled by few. We are especially concerned that the shift to the shadow parties will permanently squeeze out the party faithful – the activists and highly engaged citizens who serve as a bridge between everyday citizens and political elites – and largely eliminate their already-diminished role within the party writ large. The shift toward shadow parties thus raises important questions about the future of American politics and who ought to control political parties.

Morgan Kousser’s Noble Dream

J. Morgan Kousser, professor of history and social science at the California Institute of Technology, is an unusual academic. He enjoys the respect of two quite different groups historians and civil rights litigators. As a historian, Kousser has written a number of important works on the American South in the tradition of his mentor, C. Vann Woodward,1 including a foundational book on southern political history, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910. Many of his writings have become seminal texts among election law scholars.2 Kousser has also used his historical skills to provide crucial assistance to civil rights plaintiffs in numerous voting cases, including Mobile v. Bolden, Shaw v. Hunt, and Bush v. Vera.

Introduction: The Future of Elections Scholarship

Race, Reform, and the Regulation of the Electoral Process: Recurring Puzzles in American Democracy is the first volume in Cambridge University Press’s Cambridge Studies in Election Law and Democracy series. It offers a critical reevaluation of three fundamental and interlocking themes in American democracy: the relationship between race and politics; the performance and reform of election systems; and the role of courts in regulating the political process. This edited volume features contributions from some of the leading voices in election law and social science. The authors address the recurring questions for American democracy and identify new challenges for the twenty-first century. They consider not just where elections scholarship and electoral policy are headed, but also suggest where scholarship and policy ought to go in the next two decades. The book thus provides intellectual guideposts for future scholarship and policy making. Most of the democratic reform during the twentieth century – and certainly the most important reform – has related to the central subject of race. Because electoral reform and regulation of the political process have been viewed largely through the prism of race, election law and reform have been framed largely in rights-based terms. Consistent with the civil-rights paradigm, courts emerged as the primary regulatory agents of American democracy and served as the vehicle through which much of the reform of American representative institutions has occurred. During the last fifty years, courts have helped achieve progressive reform on racial equality, and these successes have legitimated the regulatory role of courts in the political process. As American democracy has matured and racial politics have evolved, however, it may be time to consider these central themes of race, reform, and regulation in different terms. With respect to racial progress, America is increasingly a multiracial society, and even the status of African Americans within American politics has changed. The approach that was effective when black-white relations and de jure discrimination were the dominant paradigms may require retooling as we consider

Keynote Address: What Election Law Has to Say to Constitutional Law

This paper briefly reexamines the relationship between election law and constitutional law. It begins with a tongue-in-cheek history of the fields development as it moved from a faraway outpost of constitutional law to an independent field in its own right. The notion of election laws exceptionalism has by now become conventional wisdom among scholars in the field, as most agree that constitutional law cannot be applied witlessly to the domain of elections. If scholars are divided between lumpers and splitters - those who see connections across subject areas and those who think contextual differences matter most - then scholars have written about the relationship between election law and constitutional law largely in the cadence of the splitter. This paper calls for a bit more lumping. While election law is exceptional, portions of constitutional law are exceptional as well. There may be more opportunities for intellectual arbitrage than people have typically imagined. For this reason, the paper argues that during the next stage of the fields development, election law scholars ought to have imperial aims. They should do more than declare their independence from constitutional law; they should colonize it. There are lessons to be drawn from election law, sensibilities that permeate the field that are not as prevalent elsewhere, a distinctive perspective that might help reframe conventional constitutional law debates. The remainder of the paper charts some of the ways in which we might translate election law’s insights into the domain of constitutional law.