Election Law's Lochnerian Turn

INTRODUCTIONThis panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."1 My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.More specifically, a good deal of what might be labeled electoral dysfunction stems from quite recent decisions from the Roberts Court. I focus on three representative cases, Citizens United v. Federal Election Commission2 and Arizona Free Enterprise Club's Freedom Club PAC v. Bennett,3 which invalidated campaign finance regulations, and Shelby County v. Holder,4 which vastly limited the Voting Rights Act.5 Needless to say, these decisions are not responsible for every flaw in the electoral process. They are, nevertheless, the source of significant and unnecessary electoral problems. As important, they capture the singular perspective with which the Roberts Court views the electoral process and the Court's role in policing it. I suggest that it is this perspective that goes a good distance in explaining why contemporary electoral processes take the form they do, and, accordingly, why the Court and not the Constitution is most responsible for that form.My argument is that the Roberts Court has become - and perhaps has always been6 - deeply skeptical of electoral regulations that attempt to displace certain traditional forms of political participation. It sees a good deal of contemporary electoral regulation as impermissibly redistributive and needlessly disruptive of the type of political participation that would exist in its absence. The Court, moreover, tends to view the type of participation that is displaced as a neutral baseline against which to gauge challenged regulations rather than itself the product of affirmative regulation. Put differently, the present Court confronts contemporary efforts to regulate the electoral process much like the Lochner Court7 approached progressive wage and hour legislation a century ago.8 In fact, much of what the Roberts Court has been up to in the electoral arena may be explained by an influential understanding of the Lochner era.9To be sure, labeling recent decisions Lochnerian in sensibility is a predictable move.10 Critics reliably invoke Lochner whenever the Court deems legislation they favor to be unconstitutional, and the charge has been lodged in the election law context with particular vigor.11 And yet, recent work of the Roberts Court differs both in degree and in kind from the election law cases that have prompted the charge previously. I will explain why after first discussing the ways in which Citizens United, Arizona Free Enterprise Club, and Shelby County are similar in structure and motivation, and why these similarities support the Lochner label.I. THE COURT, NOT THE CONSTITUTIONCitizens United, Arizona Free Enterprise Club, and Shelby County resemble one another in several respects. All three decisions refused to defer to legislative findings and judgments, mistrusted the motives underlying the challenged legislation, and confidently vindicated a constitutionally grounded right that had not previously been understood to be as robust and absolute as these holdings suggest. These similarities in structure, moreover, were fueled by the Court's deep skepticism about electoral rules that displace particular, traditional forms of political participation and alter the balance of power those forms would have produced.Consider, first, Citizens United, which scrapped key provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA)12 and precedent that supported them.13 The provisions at issue prevented corporations and unions from using general treasury funds for "electioneering communication," a practice the BCRA broadly defined to include broadcast and related types of communication that mentioned candidates for federal office during specified periods. …