Yearly Archives: 2017

Partisan Intent

Dec 21, 2017 Michael B. CoenenAdd a Comment

Constitutional debates about gerrymandering often start from the premise that redistricting bodies may pursue overtly partisan goals. The Court’s fractured decision in Vieth v. Jubelirer offers support for this idea: Justice Scalia’s plurality opinion characterized “partisan districting” as a “lawful and common practice,” conceding only that an “excessive injection of politics is unlawful.” Justice Kennedy’s concurrence in the judgment similarly noted that “[a] determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied” and that any workable test for evaluating a partisan gerrymander must be capable of “measuring the particular burden a given partisan classification imposes on representational rights.” ((Admittedly, Justice Kennedy sent mixed messages on this point. In contrast to the above passages, which suggest some toleration for intentionally partisan gerrymanders, Kennedy also indicated that a gerrymander might qualify as unconstitutional where political classifications “were applied in an invidious manner or in a manner unrelated to any legitimate legislative objective.” Some two years after Vieth, however, Justice Kennedy would voice opposition to a “sole-intent standard,” contending in LULAC v. Perry that “a successful claim attempting to identify unconstitutional acts of partisan gerrymandering must . . . show a burden, as measured by a reliable standard, on the complainants’ representational rights.”)) Even Justices Souter and Ginsburg, though rejecting the outcome in Vieth, were willing to concede that “some intent to gain political advantage is inescapable whenever political bodies devise a district plan” and that “the issue is one of how much is too much.” It is therefore not surprising that much of the post-Vieth commentary and case law has taken this point for granted: to the extent there might be a “judicially manageable standard” for adjudicating partisan gerrymandering claims, that standard must be capable of distinguishing between the merely partisan gerrymander (which the Constitution permits) and the excessively partisan gerrymander (which the Constitution condemns). Such a standard, in other words, must answer the question of “how much is too much.”

In their recent, respective articles, Professors Michael Kang and Justin Levitt resist this framing of the inquiry. Rather than attempt to ask “how much” partisanship is “too much” partisanship, each author would instead ask whether a particular type of partisanship has infected the redistricting process (K. 354; L. 2). Thus, as Levitt puts it, the law of partisan gerrymandering should make it clear that “public action undertaken in order to disfavor citizens because of their party affiliation is not merely a species of normal politics, but impermissible in any degree” (L. 37). And Kang similarly maintains that courts ought expressly to “identify partisan purpose as constitutionally illegitimate” (K. 373). Both authors thus propose inquiries that would treat the presence of forbidden partisan intent as an independently sufficient basis for invalidating a legislative redistricting scheme.

Kang and Levitt each make a persuasive case on behalf of an intent-centered approach. For one thing, as Levitt points out, a renewed focus on partisan intent would help to ease concerns about judicial manageability, by bringing the law of partisan redistricting within the courts’ institutional comfort zone. Judges probe for “suspect” and “invidious” purposes across a range of different doctrines, and, that task, though often difficult, is not typically regarded as inherently unmanageable. What is more, an intent-based focus may help courts sidestep some of the analytical challenges that presented cause for concern in Vieth—challenges such as developing “comprehensive and neutral principles for drawing electoral boundaries,” formulating “independent judicial standards for measuring a burden on representational rights,” and/or “demonstrat[ing] how an apportionment’s de facto incorporation of partisan classifications burdens rights of fair and effective representation.” Vieth, 541 U.S. at 306-12 (Kennedy, J., concurring in the judgment). Rather than place those questions at the forefront of the inquiry, an intent-based framework would “identify only a narrow range of considerations as out of bounds,” while at the same time remaining “appropriately agnostic about a wide range of representational preferences left to the political process” (L. 17).

In addition, an intent-based approach would help to align redistricting case law with other areas of doctrine in which overtly partisan motives are already disfavored. Kang offers an especially thorough formulation of this argument, highlighting several other domains in which courts have refused to validate intentionally partisan government actions. Kang discusses in detail: (1) a variety of First Amendment decisions in which the Court and individual Justices have condemned government action that discriminates on the basis of a speaker’s partisan affiliation (K. 376-83); (2) “second-order” redistricting cases (including one summarily affirmed by the Court), in which lower courts have prohibited legislatures from assigning even slightly overpopulated districts, otherwise permissible under the principle of Reynolds v. Sims, with partisan motives in mind (K. 384-90); (3) case law concerning the Article I Elections Clause’s delegation of power to prescribe the “times, places and manner” of congressional elections, a power—that though generally broad—does not permit states to “dictate electoral outcomes,” or “favor or disfavor a class of candidates” (K. 390-92 (quoting U.S. Term Limits Inc. v. Thornton)); and (4) a recent spate of lower-court decisions on voter-ID and other ballot-access restrictions, in which, Kang suggests, concerns about partisan motivation may be playing an unstated but significant role (K. 392-402). From this point of view, the Justices’ acquiescence to partisanship in redistricting decisions looks less like a reflection of and more like a “glaring exception” to a foundational constitutional norm (K. 376).

But more is at stake here than just doctrinal coherence. As both authors make clear, an intent-based approach would also effectuate a valuable ideal. Government action aimed at “punish[ing] or subordinat[ing] disfavored partisan affiliation” is a distinctly harmful phenomenon, different in kind from (and in fact directly threatening to) normal political competition for voters’ hearts and minds (L. 21). As Levitt puts the point:

That a Democratic or Republican legislator may vote on legislation with an eye toward improving her appeal in the next election is a very different matter than voting on legislation designed to improve her prospects by means other than appeal. Legislating with the intent to improve one’s political prospects by injuring Democrats or Republicans, because they are Democrats or Republicans, is a distinctly toxic form of partisanship, readily distinguishable from the rough-and-tumble of other political choices.

(L. 33). And Kang strikes a similar note: “The notion that the majority party in government can actively discriminate against the interests of the opposition violates a basic sensibility about democratic competition and fairness”; it is, in fact, “the definition of a process failure begging [for] judicial intervention” (K. 353). An intent-based test—in contrast to a “how much is too much” test—would refuse to countenance this sort of behavior as normal and to-be-expected.

Finally, Kang and Levitt both point out that a rule against partisan motives would have positive spillover effects within the law governing race-based gerrymandering claims (L. 55-56; K. 415-18). Where a redistricting body is accused of drawing maps in a racially discriminatory fashion, that body will sometimes respond with the odd defense that the map in fact serves partisan rather than race-based purposes. But if the Court were to make clear that partisanship does not generally qualify as a legitimate state interest, then the “party not race” defense would go away, and courts would no longer need to confront the difficult task of determining whether the true motivation behind a gerrymander was party-based or race-based. Instead, as Levitt notes, “redistricting bodies would be forced to justify lines based on publicly-permissible criteria—and, perhaps, even draw lines based on those criteria in the first instance” (L. 57).

Neither author promises a panacea. There is, for one thing, the problem of implementation. Simple as an intent-based prohibition may be to state in the abstract, judges still must figure out how to effectuate that prohibition on the ground. Kang and Levitt both sketch out potential doctrinal frameworks, ((Levitt would place the burden on challengers to show “that particular lines were drawn ‘at least in part because of, not merely in spite of, [their] adverse effects’ on a partisan group” (L. 43 (quoting Personnel Administrator of Massachusetts v. Feeney), while at the same time allowing the government to rebut circumstantial evidence of invidious intent by demonstrating “that an alternative, legitimate, rationale actually drove the districting choice” or “that the same decisions would have been made even in the absence of the invidious motive” (L50). (Notably, and in contrast to the Court’s approach to race-based gerrymandering claims, Levitt would not require challengers to show that the forbidden intent was the “predominant” motive for a gerrymander (L. 36).) Kang, by contrast, would have courts consider whether it was “more probable than not that partisan purpose significantly explains a redistricting’s partisan characteristics to the exclusion of legitimate state interests under rational basis” (K. 405), with such a finding derivable from the government’s failure to “explain an alternative, legitimate basis for its resulting partisan discrimination” or the government’s willingness to “admit[] its partisan purpose” (K. 410).  Levitt thus appears to envision a sort of burden-shifting framework operating along the lines of existing, equal protection-based approaches to establishing discriminatory intent, whereas Kang has in mind an inquiry “aimed at the imputation of an objective legislative aim necessary to make intelligible the legislative adoption of a particular redistricting” (K. 410).)) but both authors acknowledge that additional questions remain. If, for instance, judges were permitted to infer illicit intent from the presence of egregiously partisan effects (K. 358; L. 57), then those same judges would have to make some attempt at quantifying and drawing conclusions about the extent of a map’s partisan bias, thus confronting the same sorts of measurement and line-drawing problems about which some of the Justices fretted in Vieth. Similarly, if judges were permitted to infer partisan intent from an absence of legitimate government interests underlying a redistricting plan, then those same judges would need to say something about what sorts of interests do qualify as legitimate within the redistricting context (and thus, in turn, engage with thorny, big-picture questions about representative government and democratic fairness). These problems don’t strike me as insuperable, and they do not necessarily undermine the suggestion that an intent-based test would prove relatively more administrable than the approach envisioned in Vieth. But the devil is in the details, and working through those details will not always be smooth sailing.

In addition, an intent-based approach may be susceptible to evasion and manipulation. Forbidden intent will often be difficult to prove, and that difficulty, as both authors acknowledge, would likely shield some badly-motivated gerrymanders from judicial invalidation. This outcome, moreover, would likely become increasingly frequent if an intent-based prohibition were openly adopted, as ill-intentioned redistricting bodies would grow more careful about and adept at covering their tracks. Again, the point should not be overstated: even if direct evidence of illicit partisanship proves difficult to uncover, circumstantial and indirect evidence might still sometimes suffice to show that the forbidden intent was there all along. Still, as Levitt himself concedes, if illicit intent is the relevant doctrinal lodestar, then “there will be circumstances in which invidious partisan intent exists in the world but cannot adequately be proven” (L. 52).

But even if the authors’ proposed re-framing of the inquiry does not produce a perfectly effective method of policing partisan gerrymandering, the re-framing itself would still yield positive consequences. Yes, redistricting bodies might respond to an intent-based test by suppressing their expressions of partisanship. But that itself would be a good thing, as a reduction in the broadcasting of partisan motivations might help to mitigate voter disillusionment with public institutions (L. 54). In addition, as Kang points out, a prohibition on overtly partisan gerrymanders might over time help legislators to “internalize the nonpartisanship norm to a degree and launder their internal thinking in the face of judicial stigmatization” (K. 412). This isn’t a totally pie-in-the-sky dream: Levitt highlights other areas of election regulation in which it is “strikingly rare to find public officials justifying their choices based on the raw desire to punish members of an opposing political party,” and he attributes that fact to a “deep—and hearteningly abiding—norm in most public spheres against tribal partisanship as a motivating force for action” (L. 45-46.). If that norm can prevail in other contexts, perhaps it might come to prevail within the redistricting context as well.

With the Court poised to revisit the issue of partisan gerrymandering in Gill v. Whitford (and perhaps a case coming out of Maryland as well), we soon will see whether the Justices show any interest in an intent-centered approach. (A major question mark is Justice Kennedy, who in LULAC v. Perry criticized a proposed intent-based test, but who in oral argument during Gill hinted that he might be willing to strike down a gerrymander for intent-related reasons.) But regardless of what happens this Term, these articles remain worth a read, as they offer up two especially informed, thoughtful, and analytically satisfying takes on a difficult constitutional problem. What is more, both articles provide a useful reminder that even justified cynicism about the way the political process works need not always translate into defeatism about what constitutional law forbids. Invidiously partisan motivations might always influence the redistricting process; but it does not follow that such motivations must therefore be regarded as constitutionally appropriate. Sometimes it is possible to be both realistic about what government officials are likely to do and idealistic about what the Constitution requires them to do. Kang and Levitt have convinced me that the law of partisan gerrymandering represents one area in which that disconnect can and should be maintained.

The Paranoid “Fringe” in American Politics 

Dec 6, 2017 Cary C. FranklinAdd a Comment

The article that made me think hardest about American constitutional law this year was not a work of legal scholarship. It was historian Rick Perlstein’s meditation on the making of modern American conservatism.

Perlstein begins his article by describing the “rough consensus” among historians about how the right became the dominant political force in American politics in the second half of the twentieth century. The story starts in 1955, when William F. Buckley Jr. founded the National Review to combat the decades-long marginalization of political conservatism. Buckley banished John Birchers, anti-Semites, and fanatical Ayn Randians and “fused the diverse schools of conservative thinking—traditionalist philosophers, militant anti-Communists, libertarian economists—into a coherent ideology.” Fueled by support from white suburban voters, the new political conservatives thrived. Crucial to their success—or so the story goes—was their denouncement of the “political surrealism of the paranoid fringe.” Particularly in the South, new movement conservatives sublimated the “frenetic, violent anxieties” aroused by race, and spoke instead of “stable housing values,” “quality local education,” and “colorblind constitutionalism.” Simply put, modern conservatism became a dominant force by eschewing what Richard Hofstadter called “the paranoid style in American politics.”

Politicians like John McCain, Jeb Bush, and Mitt Romney exemplify this account of modern conservatism (when Romney ventured into “fringe” territory by noting that no-one had ever asked to see his birth certificate, he almost immediately walked the comment back). The current President utterly confounds it. He routinely says precisely the kinds of things upon whose eschewal the success of the modern Republican Party is thought to depend. He dredges up all that modern conservatism is understood to have rejected, sublimated, or left behind—but instead of losing (like McCain, Bush, and Romney), he wins.

From the perspective of the conventional account of the modern right—to which Perlstein’s own scholarship contributed—Trump’s victory looks like an anomaly, a rupture, and a mistake. But, Perlstein argues, it is none of these things: It is the conventional narrative that is mistaken. On his revised account, the “paranoid fringe” was never merely a fringe. He points out, for instance, that the Black Legion, which was active in the industrial Midwest and considered itself an enforcement arm of the Klan, retained its power long after historians generally view Klan power as deteriorating. In 1936, by which point the Black Legion was suspected of dozens of assassinations, the FBI estimated its membership at 135,000, a figure that included a large number of government officials. A few years later, thousands of East Coasters packed into Madison Square Garden for a pro-Hitler rally; throughout World War II, the Christian Front carried out “small pogroms” in Northeastern cities, regularly assaulting Jews as officials looked the other way. In 1962, thousands of people in Southern California wrote fearful letters to their one of their representatives about an imminent invasion of San Diego by Chinese commandos who had been training in Mexico. The common thread in these examples, and in more recent ones Perlstein discusses, is that what we think of as the far-right fringe is not as small and fringy as we generally assume.

There is no room here to discuss these examples or the others Perlstein cites; nor is there room to discuss the Trump family’s own involvement in this history. All I can do here is summarize Perlstein’s thesis, which is that the far right has not been as thinly populated or distant from the American mainstream over the last three-quarters of a century as we commonly suppose. Perlstein argues that historians (including himself) have overlooked or downplayed evidence of the mainstream nature of far-right ideology. They have assumed that the “polite” conservative tradition—the one associated with William F. Buckley, Jr.—was the dominant force in the rise of the political right and that, since the 1950s, racist and anti-immigrant ideologies have languished on the outer fringes of the right. But, Perlstein argues, that polite tradition may not have been the only or even the primary driving force in the rise of the right; the real oomph, at least in terms of numbers, may have come from a less reconstructed force.

If Perlstein is even partly correct, his article raises interesting questions about constitutional change. In the past decade or so, many scholars have embraced what is known as popular or democratic constitutionalism—various models of constitutional change that focus on how social movements influence and transform constitutional meaning. These models differ, but they all rest on a sophisticated understanding of the relationship between law and politics: between the constitutional visions that political activists and political leaders put forward and the constitutional change that judges, appointed by those leaders and attuned in various ways to social movement activism, then effectuate with their decisions.

Perlstein’s article raises a number of important questions about how we should understand this law-and-politics relationship in the context of modern conservatism. If the conservative political movement that has dominated national politics since the late 1970s gained a significant part of its electoral power from the far right, what are the implications of this for how we ought to understand the constitutional politics this movement constructed? What does it mean for how we ought to understand the law-and-politics relationship itself? Academics are accustomed to the mode of conservatism on display in decisions like Milliken v. Bradley, Washington v. Davis, Parents Involved in Community Schools v. Seattle School District No. 1, and Shelby County v. Holder: the language is impassive, it embraces values like fairness, neutrality, and colorblindness; it is all about ending discrimination. Judges appointed by modern Republican leaders talk this way, and with some exceptions, those leaders talk this way as well. But what if those leaders—and by extension, those judges—got where they are in no small part through the support of the far right? Would that affect the meaning of what those leaders and judges do? Would that in any way influence our understanding of the nature of their decisions? Would it (or should it) alter the way we think about the constitutional change this movement has wrought? Regardless of whether historians ultimately embrace Perlstein’s thesis, his provocative article raises profound and unresolved questions about how we think about the nature of constitutional change.

The Value of Moderation, Tebbe-Style

Oct 25, 2017 Sarah Barringer Gordon1 comment

Nelson Tebbe’s aspiration is nothing less than teaching us all to think more clearly and coherently about issues of marriage equality and religious freedom. For anyone paying attention, this bandwidth of legal disputes is white hot. And it is rare to find such a thoughtful voice on these questions, which keep coming at us but are rarely dealt with as skillfully and thoughtfully as in Tebbe’s work. Just last June, for example, the United States Supreme Court took cert on a case from Colorado, involving a wedding cake baker who says his expressive voice is implicated in his work. His religious beliefs mean that he cannot participate in making the cake for a same-sex couple. The baker is represented by the conservative Alliance Defense Fund and the ACLU represents the couple.

Tebbe’s book, although published before the case made it up to the Supreme Court, tells us how he would like us to think about the outcome. In public accommodations, such as businesses that are open to the public, the law does not force speech when it orders such a business to comply with non-discrimination mandates. Instead, we should recognize that by opening their doors to the public, the owners of Masterpiece Cakeshop have taken a voluntary step into society. Particularly with questions of religious freedom and racial discrimination, we have a strong background of past engagement with analogous issues. We also have deep legal and social commitments to treating customers equally, without reference to race, religion, national origin, marital status, and now, sexual orientation.

Since Obergefell v. Hodges was decided in 2015, such issues have become a lightning rod. Photographers, florists, and other wedding vendors are part of an enormous American wedding industry, but they want us to focus on their artisanship—most are small, local, and very personal. Their claims are sincere, and they feel threatened. On the other side, couples are sent unwelcome messages of condemnation, and may be imposed upon in other ways as well, when all they wanted was a happy wedding.

This is where Tebbe finds the space to be moderate, reasoned, and respectful—of both sides. One of the most admirable aspects of his work is his deployment of a carefully calibrated method for discussing what otherwise look like intractable disputes. This is where the interdisciplinary quality of the work is most evident, and most welcome. Tebbe deploys “social coherence” theory (ok, perhaps not the best label for a society that is anything but coherent right now, but work with us here), a political model that Tebbe has explored in past work. But the advantage of a book-length treatment is obvious: Tebbe’s focus both on consistency of relevant outcomes in the past, and the underlying principles that inform and give moral purchase to past results, yields a nuanced and useful set of ideas for navigating troubled waters. This is not one of those books that reproduces past work with little attention to the arc of a monograph. Instead, Tebbe has dug in and worked hard to make his own work fit the model he argues for: he is reasoned, careful, gracious, and consistent.

One of the most admirable aspects of Tebbe’s book is the way that he integrates his work in political theory with the nitty gritty of recent cases and legal doctrine. He has a strong perspective grounded in theory, that is, but he also brings a lawyer’s eye to doctrine crunching. Add to this his accessible prose, welcoming posture, and detailed explanations—Tebbe reminds this reader in some ways of Chris Eisgruber and Larry Sager’s 2007 book Religious Freedom and the Constitution, also published by Harvard University Press. He brings the same collegial and wide-ranging ethic to the task, although his approach is distinct.

It is relatively easy to outline Tebbe’s formula, but doing justice to the multiple ways he applies his method to actual cases and hypothetical situations is more difficult. The challenge even of summarizing the work demonstrates how careful, even subtle, the uses of social coherence theory are in this book. He begins by talking about what counts as coherence and then connecting those attributes to larger principles. The attributes include mutual reinforcement of patterns of behavior, in ways that support conclusions as warranted by past practice (without necessarily claiming that a particular conclusion is either true or moral in a philosophical sense), and dynamism, which means that all conclusions are subject to revision in light of new information. Also important are qualities that connect this approach to abstraction, meaning that reasons justifying a conclusion may be concrete or derived from principle. Tebbe also acknowledges that his goals are aspirational, which means that we may and should strive to achieve coherence, but that it will likely remain elusive, imperfectly achieved, and/or impermanent.

This approach is particularly useful to law and legal analysis, Tebbe argues, and dovetails neatly with fundamental legal principles, including avoiding harm to others, basic fairness, freedom of association, and government nonendorsement. Roughly half the book is taken up with getting us this far. This reader both had a strong grasp of the method and its underlying limits and virtues—but the payoff truly is in the third section of the book, called “applications.” Here he tackles four major problems for the law of church and state today.

The first is the topic we began with—public accommodations. I won’t belabor the fundamental points about speech and past practice, but do want to note that he also addresses the “wait and see” argument. To those who argue that we should give the market time to adjust to increasingly positive views of marriage equality, Tebbe (expanding on the work of Andrew Koppelman and Joseph Singer) responds that “strong and commonly accepted” reasons for allowing equal access to public accommodations are already in place, and should be respected in cases (such as those involving wedding vendors) that involve commercial enterprises. This would include adoption agencies, facilities routinely rented to the public, and would apply despite Religious Freedom Restoration Acts at the federal or state level. Tebbe readily concedes that after Burwell v. Hobby Lobby (2014) this is a live question, an intuition that is borne out by the Supreme Court’s current docket.

The second topic is equally difficult and hard fought. Teachers, coaches, voluntary Boy Scout troop leaders, even janitors, have all been subject to firing for violating purely religious standards in the workplace. As Tebbe points out, state and federal employment laws provide special exemptions for religious organizations. Freedom of association protects religious (and secular) groups, especially in the hiring of leaders, such as clergy or those formulating policy for the group. The Supreme Court case Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012) underscored the concern for freedom to select clergy. Tebbe cautions that ordinary employees, especially laypersons in relatively low-level jobs that do not materially affect policy or central values of an organization, can be harmed unduly when religious organizations are allowed to discriminate in favor of co-religionists under Title VII. And in an interesting twist, the central case in this area, Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos (1987) comes from Salt Lake City, where in 2015 the “Utah Compromise” both enacted employment protection for LGBT workers, and entirely exempted religious organizations and the Boy Scouts, for which the Mormon Church is the single largest sponsor in the country. This widely heralded advance, Tebbe argues, came at a high price. And other similar proposals, he says, have been rightly criticized for extending unprecedented power to religious organizations to discriminate in hiring.

Third is public officials, and here Tebbe argues that—although religious exemptions for government actors are rare—they should be expanded in some situations. For example, consider Kim Davis, a Kentucky county clerk who refused to issue same-sex marriage licenses after Obergefell on religious grounds. Tebbe maintains that she should be allowed to benefit from a solution to her quandary designed by the Kentucky legislature. The state established a uniform marriage license for Kentucky, which associated the broader government, rather than the county clerk by name, with the endorsement of marriage equality. Tebbe argues that this solves the problem, although he concedes that his is a minority position. This reader began thinking he must be dead wrong, and that an oath to uphold the law means just that. But Tebbe’s careful distinction between the office and the office-holder was thought provoking in all the best ways.

Finally, Tebbe concludes with government funding. Here, too, he brings to bear a distinctive and steady voice, arguing that governments should be allowed to de-fund religious activity, even if it funds comparable secular endeavors. As he notes, concerns about tax exemption are everywhere among religious groups that object to marriage equality. Older caselaw, such as Bob Jones University v. United States (1983) and Locke v. Davey (2004) support Tebbe’s argument that even constitutionally protected activity can be defunded or discouraged (see abortion). But the more recent Trinity Lutheran Church of Columbia, Inc. v. Cromer (2017), released this summer after Tebbe’s book was published, cuts in the other direction. There the Court held that Missouri’s decision not to help a nursery school improve its playground because it was located on church property violated the free exercise rights of the church. In a telephone conversation, Tebbe called the case “regrettable,” maintaining that Missouri’s interest in pursuing the values of the establishment clause should be allowed, stressing that Justice Sonia Sotomayor (in dissent) had a better understanding of the law.

Thus one portion of Religious Freedom in an Egalitarian Age has already endured some buffeting. But the central point of the book is the key: Tebbe argues—repeatedly, convincingly, and with great respect for the many interests at stake in this highly-contested area of constitutional law—that reason, debate, moderation, and coherence are central to productive outcomes. He is right, and the field is better for his intervention.

Checking the Government’s Deception Through Public Employee Speech

Sep 25, 2017 Helen NortonAdd a Comment

Suppose the United States elected a president with authoritarian tendencies. Imagine that the president regularly attacked and undermined institutions and individuals that sought to hold his administration accountable for its actions. Assume, for purposes of the hypothetical, that members of the President’s party controlled both the House and the Senate and saw little partisan self-interest in checking the executive branch. Just pretend.

Under those circumstances, where else might we turn for help in ensuring that our government remains accountable to us? In The Special Value of Public Employee Speech, Heidi Kitrosser reminds us that “government employees are crucial safety valves for protecting the people from abuse and incompetence, given their unique access to information and to a range of avenues for transmitting the same.” More specifically, she points out that the everyday heroism of public employees includes

the simple acts of employees doing their jobs conscientiously and in accordance with the norms of their professions. When employees engage in such behavior – for instance, when government auditors honestly and competently investigate and report in a manner consistent with professional auditing standards – they help to maintain consistency between the functions the government purports to perform and those that it actually performs. In this sense, public employees are potential barriers against government deception. They can disrupt government efforts to have it both ways by purporting publicly to provide a service while distorting the nature of that service. When they do this through their speech acts—for example, by reporting the results of budgetary analyses or scientific studies—they engage in speech of substantial First Amendment value. (Pp. 302-303).

In Garcetti v. Ceballos, however, the Supreme Court interpreted the First Amendment to offer no protection for public employees’ truthful speech in a broad range of circumstances—including their truthful reports of governmental lies and other misconduct. Rejecting a First Amendment challenge by a prosecutor disciplined for writing an internal memo that criticized a police affidavit as including serious misrepresentations, the Court held by a 5-4 vote that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In concluding that a government employer should remain free to assert “control over what the employer itself has commissioned or created,” the majority thus created a bright-line rule that treats public employees’ speech delivered pursuant to their official duties as speech that the government may restrain and punish without running afoul of the First Amendment.

As I have detailed elsewhere, lower courts have applied Garcetti’s bright-line rule to reject the First Amendment claims of a wide swath of government workers punished for reporting all sorts of government misconduct. Examples include financial managers fired after reporting public agencies’ fiscal improprieties; an array of public employees terminated after reporting health and safety violations; public health care workers and public school teachers punished after expressing concerns about patient care and student welfare; and police officers discharged after reporting government officials’ illegal or unethical behavior. As Seventh Circuit Judge Ilana Diamond Rovner explained in one such case: “Detective Kolatski was performing his job admirably at the time of these events, and although his demotion for truthfully reporting allegations of misconduct may be morally repugnant, after Garcetti, it does not offend the First Amendment.”

Some lower courts have even understood Garcetti to mean that the First Amendment offers no protection to public employees punished for testifying truthfully about their on-the-job observations of government misconduct, because such testimony concerns information that they received pursuant to their official duties. The Eleventh Circuit, for example, applied Garcetti to conclude that the Constitution posed no obstacle to the termination of a state employee who testified under oath about his discovery that an Alabama state legislator on a state agency payroll had not been reporting for work. Fortunately, the Supreme Court reversed the lower court, holding in Lane v. Franks that the First Amendment “protects a public employee who provide[s] truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.” In other words, the Court held that Garcetti did not apply, even though the plaintiff’s testimony concerned information related to his public employment, because his ordinary job duties did not include sworn testimony.

In short, Garcetti slammed the door shut on the prospect of First Amendment protection for public employees’ speech pursuant to their official duties. Lane cracked that door a bit, recognizing that “speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” Whether Lane signals any further limitation of Garcetti, however, remains unclear, as the Court noted that it did “not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties.” Incredibly, we don’t yet know whether the First Amendment protects law enforcement officers and government lawyers who testify truthfully about public corruption when it is their job to do so.

Kitrosser’s valuable article seeks to push the First Amendment door open still wider for public employees. She offers a road map for mitigating Garcetti’s damage by emphasizing the special value of public employee speech to democratic accountability. Here, Kitrosser is pragmatic but optimistic: “The hope is that Lane provides occasion to dig more deeply into both the special value of public employee speech and the government interests at issue and thus to rethink Garcetti entirely. More modestly, Lane can point the way to means by which Garcetti can be limited.”

Kitrosser urges the Court to revise and limit Garcetti to permit the government to discipline public employees for speech that they are hired to produce only when such discipline is based on the government’s genuine, rather than pretextual, assessment of that expression’s quality. Her proposal would protect the special value of public employee speech while recognizing and accommodating public employers’ compelling managerial needs, in that she seeks “not to second-guess supervisor assessments of work product quality, but to smoke out retaliation against work product speech for reasons other than quality”–e.g., public employee speech that discloses “inconvenient” facts or offers truthful but unwelcome analysis.

Most important, “in cases where employees were hired to render independent professional judgment, disappointment with those judgments, not because they reflect low quality, but because they are politically or personally inconvenient for employers, should not be deemed quality-based assessments.” As Kitrosser explains, the government engages in deception when it “hires climate scientists to make climate projections but insists that they alter their findings for political reasons as a condition of their continued employment.” The same would be true of labor economists hired by the government to report unemployment rates. It would apply as well to law enforcement officers hired to investigate, and lawyers hired to prosecute, government corruption.

Kitrosser also identifies more minor doctrinal adjustments as a “second-best, but perhaps more realistic near-term alternative” for limiting Garcetti’s reach. These include “carv[ing] out an exception to Garcetti, a presumption against its application, or at least a factor in weighting against its application whenever truthful reporting of corruption or serious governmental misconduct is at issue,” and “deem[ing] the fact that information was learned on the job irrelevant to this inquiry.” I’d add that legislatures also have an important role to play in enacting statutory protections for public employees who engage in such speech.

In this important article, Kitrosser reminds us that we lose something of great value when government workers can be, and are, fired for telling the truth about their jobs. That reminder is necessary now more than ever.

Individual Rights and Collective Governance

Aug 9, 2017 Charles ShanorAdd a Comment

Ozan O. Varol’s article Structural Rights usefully mixes two aspects of constitutional law that teachers and authors, at least for pedagogical purposes, separate when organizing coverage of their subject. My casebook, for example, covers “structural” features of the United States Constitution, such as separation of powers and federalism, then proceeds to “rights” chapters dealing with, for example, due process and equal protection. Students typically find structural features more difficult and non-intuitive, while they are very comfortable with rights protections for individuals.

Of course, separation of powers and federalism are fairly commonly viewed as liberty-enhancing. The Framers initially thought a Bill of Rights unnecessary: governmental structural restrictions and competing government power centers, they thought, would prevent government oppression. Today, perhaps in part due to the “rights revolution” of the Warren Court, my generation typically views the Bill of Rights and section 1 of the Fourteenth Amendment as bulwarks of individual freedom, central and indispensable to our constitutional order. But the point of the Constitution as a whole was to enhance governance by “We the People.” The rights provisions, as Varol’s article elucidates powerfully, empower rather than merely protect “the People.” They frame and drive our governance structure.

This empowerment works two ways. First, rights empower governmental actors to act on behalf of the people. Congress may protect (but not restrict) free speech and freedom of religion, may grant (but not deny) due process, may enhance (but not undermine) equal protection. The President can enhance freedoms by exercising prosecutorial discretion, and can issue executive orders to expand rights (if those orders are consistent with Congress’ laws and/or have some basis in presidential powers). Further, executive agency interpretations of laws can expand the people’s rights. Lastly, judicial power is enormously enhanced by the existence of rights, for judges interpret the reach and enforcement mechanisms of those rights, sometimes overriding majoritarian decisions by Congress, the President, or the States.

Second, rights are structural bulwarks of our constitutional system of government by the people. Free speech and free press enhance vigorous debate over policy directions, voting protections allow the people to choose and fire their leaders, and equal protection helps avoid marginalization of minority groups in electoral and other processes. Jury trials, by guaranteeing ordinary citizens decision-making authority in criminal trials prosecuted by executive officers, keep government officials from having free rein to punish political enemies or attack those who claim corruption by government officials. Due process takes over as a catch-all even where specific constitutional provisions do not apply.

How about the Second Amendment? Varol argues that:

The “well regulated Militia” in the Second Amendment, characterized as “being necessary to the security of a free State,” invokes the idea of justified resistance against a tyrannical govern-ment. The reference to a “free State” is expressly structural and is considered “necessary” to protect popular sovereignty. Framed as such, the Second Amendment right to bear arms is closely connected to the First Amendment freedoms of assembly and petition. If a tyrannical government remains unresponsive to the people’s demands, expressed through petition and assembly, the people have the collective right to alter or abolish their government.

But the Supreme Court’s focus in Heller was not on the militia, and the purpose it stressed was “individual self-defense.” Perhaps Varol could have assessed the individual right to bear arms as contrasted with arms-bearing militias as a structural bulwark of our system. But what structure does that right support? If the right is to defend against oppression, it fits well into Varol’s framework, but if it is the “right of revolution,” it could destabilize order in our republic. Perhaps this structural observation would support the legality of limiting firearm ownership to “small arms,” in keeping with Heller’s interpretation of the scope of the Second Amendment.

In addition to observing and organizing a wide range of examples of rights which serve structural governing purposes, the article weaves in a bit of economic and political theory. Rights tend to align the agendas of officials with outcomes desired by their constituents and allow voters to “fire” ineffective or dishonest elected officials. Minority rights create constituencies who leverage rights affecting them disproportionately. This leverage in turn may move the broader polity to adopt policies the minorities desire. Examples include racial groups (the Civil Rights Act, the Voting Rights Act, and the Fair Housing Act), women (the Civil Rights Act again, the Violence Against Women Act, and the Fair Credit Reporting Act), and people with disabilities (the Americans with Disabilities Act). Such endowment effects are particularly difficult to dislodge, so these rights and the resulting political culture become self-reinforcing and stable, even if initially contested and contentious.

In short, Varol’s article is a welcome reminder that what we often think of as pure personal rights in fact suffuse not merely our popular culture but also our political institutions. The incentives of those who hold the levers of power in the United States are, through these rights, more closely aligned with the wishes of the people. These rights are structural features for maintaining and stabilizing our republic. They are critical components in maintaining the opening pledge of the Constitution’s commitment to “We the People.”