The Courts Go After Gerrymandering: Deconstructing a Conflict-of-Interest

In the U.S., the boundaries of both federal (e.g., U.S. House of Representatives) and state legislative districts are redrawn every ten years after the census to “ensure that each district contains roughly the same number of people.”[1] Both major political parties in state legislatures “often remap districts to favor themselves, either by cramming opposition voters into a single district or by dividing them so they are the majority in fewer districts.”[2] I contend that a simple majority vote is problematic, given the irresistible temptation to redraw the districts for partisan advantage rather than merely to take account of changes in population.

By a 2-to-1 ruling, the U.S. District Court for the Western District of Wisconsin found in November, 2016 that the Wisconsin Assembly’s redrawing the legislative chamber’s districts was an unconstitutional partisan gerrymander favoring the Republican Party. U.S. courts had struck down gerrymandering on racial grounds, but never on “grounds that they unfairly give advantage to a political party.”[3] For the first time, a court offered a clear mathematical formula for measuring partisanship in a district. The Court found that the legislature’s redrawing of its districts violated both the First Amendment and the Equal Protection Clause of the 14^th Amendment because the remapping “aimed to deprive Democratic voters of their right to be represented.”[4] The motive here is problematic, for it puts partisan advantage above the duty to act for the public good by fairly adjusting for changes in population.

In other words, the ability of the party that controls a legislature to use the census-adjustment responsibility for private (i.e., party) ends puts the party in a conflict of interest. The party being in the majority of a state legislative chamber is sorely tempted to put partisan goals above the democratic aim of achieving fair districts. Democracy itself suffers so a majority can remain in the majority.

One solution to this conflict of interest is to require a 2/3^rd majority (or majorities in both parties) to approve changes in the districts. The latter pertain to the entire legislative chamber, as part of its basis in representative democracy, so it is only fair that at least some of the minority party approves.

My main point here is that going by simple majority enables, or sets up, the conflict of interest. Given the overwhelming force of the partisan temptation, the conflict should be deconstructed. In fact, all institutional conflicts of interest that can reasonably be taken apart should be, due to how ongoing temptation plays out in human psychology/nature.

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1. Michael Wines, “Judges Find Wisconsin Redistricting Unfairly Favored Republicans,” The New York Times, November 21, 2016.

2. Ibid.

3.  Ibid.

4. Ibid.

Police Snatching Property: A Conflict of Interest While American Federalism Sleeps

The U.S. Justice Department halted its adopted-forfeitures program in early 2015 out of a sense that state and local law-enforcement agencies had been using the federal program to retain a greater portion of seized property, including cash, than state laws permit. Asset forfeiture had grown since the 1980s largely as a strategy in combatting drug traffickers, yet the agencies themselves benefited in being able to spend the cash. Besides this conflict of interest, the federal-state dynamic here demonstrates federalism in action, though perhaps not as strongly as the system of government allows.

As police departments collected more and more in involuntarily forfeited property, an increasing number of people complained that their property had been seized without there being any evidence that they had committed any crime. In other words, the police were getting away with dismissing the “innocent until proven guilty” mantra of American justice. The ACLU, for instance, issued a statement saying the forfeitures violate the due process clause in the U.S. Constitution.[1] If so, then the Justice Department could have gone further than merely refusing to allow police departments to collect property at levels permitted only by federal law. Specifically, the federal agency could have sued police departments to contest even the state laws as unconstitutional. Presumably taking the property of anyone charged but not convicted of a crime, even of drug-dealing, violates constitutional rights. In a viable federal system, moreover, the federal government is obliged to act as a check against state and local abuses of power. That the Justice Department fell short of this function suggests that American federalism had already been compromised rather than fully functional.

Were the Federal Government acting as a viable check on the state (and local) governments in the U.S., surely going after governmental conflicts of interest would be on the federal radar screen. That the departments could spend the money from the forfeited property (whether under state or federal law!) points to a conflict of interest wherein a department’s own financial interests trumps or eclipses the wider protection inherent in the doctrine of presumed innocence.  Put another way, police could get away with exploiting a public benefit for private gain (that of the police). Of course, no police administrator would admit to it.

Ron Brooks, for example, headed the National Narcotic Officers’ Associations Coalition at one point. “While the money is helpful to us, that’s not the reason forfeiture occurs,” he explains. “It occurs because it removes the most critical component of these criminal organizations: the capital to operate.”[2] He claims that the helpful money is not even a temptation even though it is entirely reasonable to assume it is; he is dismissing the motive out of hand when it is anything but reasonable to do so. Typically, such an attempt to hide a conflict of interest is a subterfuge—meaning that one does in fact exist and it is being exploited. Put another way, if police administrators really were indifferent to the helpful money, why not admit that it could be a temptation?

Therefore, we can conclude that the departments’ discretion in forfeiture cases is problematic, given the active temptation to exploit the conflict of interest. Were the U.S. Government to have been acting as a check on the states, the Justice Department lawyers would have gone after that discretion, at the very least. Of course, going after the relevant state laws permitting the forfeiture practice would go even further in deconstructing the institutional conflict of interest, and thus evince a stronger federal system wherein the two systems of government—federal and state—act as checks against abuses in the other at the expense of the People.

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[1] Devlin Barrett and Zusha Elinson, “Holder Moves to Curb Asset Seizures,” The Wall Street Journal, January 17-18, 2015.

[2] Ibid.

Is Money Speech?

Dan Backer represented Shaun McCutcheon before the U.S. Supreme Court in McCutcheon v. Federal Election Commission—a case in 2014 that further relaxed campaign-contribution limits beyond the openings created in the Citizens United decision in 2010.  Backer argued before the Court that any restriction of political contributions is a violation of the First Amendment's right of free speech. In an interview after the Court handed down its McCutcheon decision, Backer said, "I don't understand why anyone should have their free speech limited to help somebody else feel like they can speak more. The Constitution does not envision the idea of, as the court said, 'weakening the rights of some and the speech of some in order to enhance or promote the speech of others.'"[1]

A week after Backer’s interview, when $57 million had already been spent by outside groups on the 2014 midterm elections, David Keating, an advocate of the deregulation of campaign finance, put it simply as “money means speech.”[2] Interestingly, Backer backed off such a stark equivalence. "The court did not say, and really neither does any serious commentator, that money is speech. Money is not speech. Money is a necessary tool to engage in political speech and political association.”[3] Money is not speech; rather, money is a necessary prerequisite. Hence Backer treated the right to spend money (on political campaigns) as essentially the right of free speech applied to politics. In other words, the assumed necessity of money for political speech means that the right of free speech in electoral politics is essentially violated if the right to spend money is severed or even truncated.

However, is spending money really necessary for a person to be able to “speak” politically? Is it necessary to purchase a television ad-slot to be able to make a political speech? Surely more political discourse occurs than what is broadcast as political advertisements. I suspect that spending money can amplify one’s political speech in that the audience is made much larger; this is not to say that achieving such a scale is necessary for one to be able to speak on political matters.

For that matter, is a campaign contributor seeking to influence public policy (directly or via the election of a particular candidate) by spending money on a campaign even speaking? Keating would doubtlessly say yes. Money means speech. Pivoting off Backer’s (common sense?) point that money is not speech, however, we might say that the spending is necessary for one’s own speech to be accomplished through the agency of another party, such as a political campaign or an outside group; spending money on political campaigns essentially “hires” someone else to “do” one’s speech. Is such a “hiring” included in the right of free speech?

Moreover, is the right of free speech—meaning that a person’s political speech cannot be prohibited by the state—the same as the right to speak (not to mention through another party via a commercial transaction)? Similar to how procedural due process somehow got enlarged include substantive due process, I suspect that the right of free speech has inadvertently come to include the right to have one’s political views aired directly and even the right to essentially hire another party to broadcast them (assuming such hiring is necessary to one’s views “getting out there”).

The sheer expansiveness in judicial doctrines such as the commerce clause, establishment of religion, due process and free speech may be similar to the tendency of “weak states” to spend more on consumption than investment due to democratic pressures for instant gratification. In short, people want more and more, and are all too willing to contort prime facie meanings and tolerate absurdities such as “money is speech.” I submit that much daylight exists between government being prohibited from outlawing certain political speech and a right to spend money on political campaigns.

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1. Ryan Grim, “Now He Tells Us: McCutcheon Attorney Admits Money Is Not Speech,” The Huffington Post, April 7, 2014.

2. PBS News Hour, “Why Outside Groups Are Pouring Record Amounts of Money into this Year’s Midterm Elections,” April 16, 2014.

3. Grim, “Now He Tells Us.”