Pamela S. Karlan

by Jeremy Leaming

During yesterday’s oral argument before the U.S. Supreme Court over legal challenges to recently redrawn electoral maps, the justices, according to Adam Liptak, appeared “frustrated” as they grappled with how to resolve the matter, which could have a major impact on which party controls the House of Representatives.

“The justices,” Liptak, The New York Times Supreme Court correspondent, wrote, “in essence must choose between two sets of electoral maps, or at least tell lower courts how to do so. The maps concern the two houses of the Texas Legislature and the House of Representatives.”

Prompted by the 2010 census – which reported that Texas gained more than 4 million new residents, most of them Latinos – the Republican-controlled Texas Legislature created new electoral maps that public interest groups criticized as failing to reflect minority population growth. Texas, because of its history of discrimination against minority voters, is one of the states that must get “preclearance,” pursuant to Section 5 of the Voting Rights Act, from the Department of Justice or a federal court before any electoral changes can take effect. While Texas officials sought preclearance from a federal court in Washington, a federal court in San Antonio created its own electoral maps as a substitute, which state officials challenged. That three-judge court in San Antonio found that the Legislature’s redistricting sharply reduced the number of minority voting opportunities.

During oral argument, Justice Sonia Sotomayor suggested the Texas Legislature’s maps could not be used in the state’s primaries, because the maps had not been approved pursuant to Section 5 of the Voting Rights Act.

“I don’t see how we can give deference to an enacted new map,” she said, “if Section 5 says don’t give it effect until it’s been precleared.”

In a piece for the Boston Review, Stanford University law school professor Pamela S. Karlan examines the Supreme Court’s changing view on the rights of corporations, concluding that the ruling in Citizens United v. FEC should not end the debate over the “constitutionality” of campaign finance regulation.

Karlan, also an ACS Board member, notes that the Supreme Court a long, long time ago found that corporations “are entitled to constitutional protection, but not the same as human beings.”

And in recent times under direction of a conservative Supreme bloc, Karlan notes that “when it comes to a willingness to restrict constitutional rights in the name of confidence in the democratic process, the Court’s decisions show a troubling and puzzling asymmetry in favor of corporations.”

One of those areas of favoring corporate interests, of course, centers on campaign finance regulation. In Citizens United, the conservative high court bloc overturned precedent that found a compelling government interest in “preventing ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.’”

Karlan points to a “better argument” for limiting outlandish corporate spending on elections.

She writes:

Under current law the actual owners of corporations – their shareholders – have little say in how corporations make decisions in the political arena. That corporate managers might spend corporate funds not to maximize the shareholders’ welfare but to maximize their own is a very real danger. Many shares are owned by mutual funds and pension funds that in turn are owned by individual citizens who often have political convictions that go beyond maximizing the profitability of the corporations whose stock forms part of their retirement savings. What is more, those political commitments may be sharply at odds with the economic interests of the corporate managers who are making decisions about corporate political spending. The law should not force citizens to forgo beneficial investments in order to avoid subsidizing their political opponents.