What is the proper role for courts to play in ensuring the health of our democracy? In the early 21st century, the principal threat to democracy is state capture by monied interests and what appears to be a rising oligarchic state. At a time when the president of the United States uses the South Lawn of the White House to record an ad for a car company owned by a billionaire who has donated hundreds of millions of dollars to his campaign, concern about state capture by special interests is one of this country’s most urgent problems. The federal courts have been called upon to police illegal and unconstitutional activity, placing a strain on our judicial system that threatens our democracy. However, they have proven unwilling to address the murkier problem of state capture by powerful and wealthy individuals who use the government to promote their own interests.
In his forthcoming article, Contesting State Capture, Lucien Ferguson shifts our focus from federal to state courts. Ferguson argues that state courts have a special role to play in preventing state capture, in part because state constitutions contain special provisions aimed at preventing this peril. According to Ferguson, some of the most urgent examples of capture include partisan gerrymandering and voter ID laws, which are all designed to aid one political party (the Republican Party), as well as Right to Work Acts that undermine the political power of unions. Ferguson maintains that these laws are “special acts” that violate state constitutions and common law doctrines. One can also think of examples that cut towards the Democratic Party, such as legislation that favors union organizing and plaintiff’s attorneys, significant sources of funding for Democratic candidates. Ferguson calls on state courts to enforce state constitutional provisions to constrain state capture from any source.
During the twentieth century, federal courts were viewed as threats to democracy because of their activist approach to economic legislation during the Lochner Era. At the same time, our country faced a different threat to democracy—the exclusion of African Americans from the political process, which resulted in legislatures enacting racially discriminatory laws. Eventually, the Warren Court adopted heightened scrutiny for racially discriminatory laws and other laws that reflected a failure of the political process. The Warren Court’s scrutiny of race-based government action sought to dismantle capture based on racial hierarchy. However, the Court adopted an attitude of extreme deference towards economic legislation, applying rational basis review to uphold state action which is rationally related to any conceivable government purpose. In cases such as Williamson v. Lee Optical and Ferguson v. Skrupa, the Court acknowledged that capture is a normal attribute of the democratic process. As a result, federal court enforcement of the Equal Protection Clause fails as a tool to contest state capture by private interests for their own private gain. Moreover, in cases such as Citizens United, the Court has erected barriers to campaign finance legislation that might reduce one cause of state capture: excessive spending on politics by private individuals and corporations.
Ferguson points to state constitutional provisions that were adopted during the late nineteenth century—when, as now, concentrations of wealth and powerful monied interests threatened democratic institutions. As Ferguson explains, many states responded by amending their constitutions “for the express purpose of empowering state courts to prevent state capture.” State constitutions include substantive provisions, such as requirements that legislation be general in nature, and serve a public purpose (as opposed to a private purpose). These provisions were intended to prevent special legislation, which they viewed as “a perennial fountain of corruption.” State courts also established the common law public purpose doctrine. Finally, states constitutionalized procedural restraints on legislative processes. According to Ferguson, reformers intended state courts to play an active role in policing the legislative process to prevent capture.
Notwithstanding these state measures, Ferguson argues that capture of state governments has been increasing throughout the country. He calls on state courts to remedy this by enforcing their state constitutions. For example, the Arizona Supreme Court employed the state constitution’s “Gift Clause” to strike down an agreement by the city of Phoenix to pay a private corporation to develop real estate within the city. The Supreme Court of Pennsylvania has enforced the state constitution’s germaneness requirement to prevent private capture of government resources. Other state Supreme Courts, such as Maryland’s, employ heightened scrutiny to evaluate the constitutionality of state subsidies for private development.
Ferguson acknowledges some drawbacks to his approach. Transferring power from representative institutions to judiciaries raises the same concerns about juristocracy that motivated the backlash to Lochner. However, as he points out, legislative bodies are simply not using their power to prevent the evils of state capture. The bigger concern is that unlike federal judges, most state judges are elected—and their elections have become the target of massive interest-based spending equivalent to many legislative races. Given this fact, perhaps Ferguson is unduly optimistic about the willingness and ability of state courts to bear the weight of protecting democracy in these uncertain times. Nonetheless, these times demand precisely the type of thoughtful and innovative approach that Ferguson addresses to solving this urgently pressing problem.
Constitutional scholars spend far too much time focusing on federal courts, and the federal government in general. In this article Ferguson provides a refreshing new perspective, inviting us all to rethink our perspective on both federalism and separation of powers.
