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Bertrall L. Ross II

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Addressing Inequality in the Age of Citizens United

Bertrall L. Ross II

The United States has reached a point of economic inequality that has not been seen since the 1920s. According to the median voter theorem of redistribution, democracy is supposed to act as a check on growing economic inequality. The intuition behind this theorem is simple: If a majority of the population sees their incomes stagnate while a wealthy minority gets richer, the majority will demand redistributive policies, and representatives will respond by addressing inequality. But in the United States, very little redistribution has accompanied rising economic inequality.

Why has democracy failed to check economic inequality in the United States? Political scientists and legal scholars have pointed to political inequality as the culprit. Political scientists have shown that elected representatives are much more responsive to the wealthy than any other income group. Legal scholars have argued in favor of equalizing campaign finance and regulating lobbying as ways to reduce political inequality. Empirical studies, however, have raised doubts about the effectiveness of any reform efforts aimed at those areas, and constitutional law disfavors solutions aimed at diminishing the political voice of the wealthy.

In this Article, I argue that reducing the income class imbalance of the electorate— i.e. the tendency of wealthier voters to vote at higher rates than less affluent ones— will be a more constitutionally viable and effective means of ameliorating political inequality. I base this argument on the median voter theorem, which suggests that elected officials decide whether or not to adopt redistributive policies based on whether they believe the median voter desires such policies. Because the poor vote less and have less access to their elected representatives, representatives perceive the electorate to be better off than the population as a whole actually is, diminishing the pressure to redistribute in contexts of rising economic inequality.

The ideal solution to this form of political inequality is to induce the participation of the poor and enhance their engagement with elected officials through campaign mobilization. Mobilizing the poor would not only increase the proportion of the poor in the electorate, but more importantly, would change how representatives perceive the electorate and its demands for redistribution. Achieving these goals will require looking to new legal strategies aimed at incentivizing mobilization. I examine three legal strategies that could increase the incentives for political campaigns to mobilize the poor: campaign finance vouchers, earmarking campaign contributions, and a mobilization-matching fund. I conclude by suggesting a path to advancing these strategies in the current political climate.

The State as Witness: Windsor, Shelby County, and Judicial Distrust of the Legislative Record

Bertrall L. Ross II

More than ever, the constitutionality of laws turns on judicial review of an underlying factual record, assembled by lawmakers. Some scholars have suggested that by requiring extensive records, the Supreme Court is treating lawmakers like administrative agencies. The assumption underlying this metaphor is that if the state puts forth enough evidence in the record to support the law, its action will survive constitutional scrutiny. What scholars have overlooked, however, is that the Court is increasingly questioning the credibility of the record itself. Even in cases where the state produces adequate evidence to support its action, the Court sometimes invalidates the law because it does not believe the state’s facts. In these cases, the Court treats the state like a witness in its own trial, subjecting the state’s record and the conclusions drawn from it to rigorous cross-examination and second-guessing.

In this “credibility-questioning” review of the record, the Court appears to be animated by an implicit judgment about the operation of the political process. When Justices consider the political process to have functioned properly, they treat the state as a good faith actor and merely check the adequacy of its evidence in the record. But when Justices suspect that the democratic process has malfunctioned because opponents of the law were too politically weak or indifferent to challenge distortions in the record, they treat the state as a witness, suspecting bias in its factual determinations supporting the law.

In this Article, I both support and critique this new form of review. Contrary to conventional wisdom, I argue courts should engage in credibility-questioning review of the record when the political process has malfunctioned. Public choice and pluralist defect theory imply that the record supporting a law is more likely to be distorted in contexts of democratic malfunction. But for reasons of institutional legitimacy and separation of powers, I argue courts should limit credibility-questioning review to contexts where there is actual proof of democratic malfunction.