Private: The State of the Republican Form of Government in the States

by Anthony Johnstone, Associate Professor, Alexander Blewett III School of Law at the University of Montana

*This post is part of ACSblog’s 2015 Constitution Day Symposium.

According Article IV, section 4 of the Constitution, “The United States shall guarantee to every State in this Union a Republican Form of Government.” Note the use of the indefinite article: a Republican Form of Government. In James Madison’s words this originally meant “a Government in which the scheme of representation takes place,” and the people rule instead of a monarch or aristocracy. As the rest of the section’s discussion of “Invasion” and “domestic Violence” suggests, the point of the guarantee was to protect the Union and sister states against the danger posed by a state controlled by the few rather than the many. Beyond this principle of self-preservation, and subject to Congress’s power to regulate federal elections under the Elections Clause, the original Constitution left democracy in the states alone.

Over the past 228 years since the original Constitution was first proposed, the people mobilized the states to bolster the guarantee through constitutional amendments. The First Amendment confirmed “the principle that debate on public issues should be uninhibited, robust, and wide-open.” The Fourteenth Amendment established equal citizenship for all, eventually realized in the ideal of “one person, one vote.” The Seventeenth Amendment gave the people of the states a direct voice in the Senate, while the Twenty-Third Amendment gave the people of the District of Columbia a voice in the election of the President. The historic Voting Rights Amendments prohibited the denial or abridgment of the right to vote on account of race, sex, wealth or age.

Under the republican guarantee, and beyond these constitutional rights to basic political equality, state governments take a variety of distinct forms. Each reflects the complex interplay of a state’s history, geography, demographics and political culture. As a result, our 50 state republics are far more diverse and dynamic than the federal republic they compose: from the tiny inlets and isles of Rhode Island (which governed under the royal charter of Charles II until its first and only constitution in 1843) to the vast valleys of Montana (my home state, which adopted an innovative second constitution in 1972).

This diversity is one of the essential features of our pluralist nation, what we might call our republican pluralism. We see it in something as basic as the election calendar, when general election campaigns run between two and nine months, sometimes with more than a month of early voting. We see it in representation, with both the number of legislative seats and the size of legislative constituencies varying by orders of magnitude. We see it in the strength of political parties, closed and open primary elections, and party affiliation rates that range from below 10 percent to above 90 percent. We see it in ethics and lobbying rules, and campaign practices enforcement. And we see it in campaign finance, where states try everything from basic disclosure to tight contribution limits to public financing.

These legal distinctions sustain deep and persistent differences in state political cultures. For example, voters in chilly Minnesota and Maine are 50 percent more likely to cast a vote come November than voters in sunny Hawaii or Texas. Think about it: this variation is greater than the historical variation in national voter turnout over the entire twentieth century. Or take campaign finance in the states, where spending ranges from nearly $20 per vote to less than $1 per vote, funded mostly by candidates in some states, mostly by political parties in other states and mostly by independent expenditures in other states. The practice of democracy at the state level is a function of complex interactions among election administration, representation, political parties, campaign finance and other laws.

Unfortunately, the Supreme Court too often neglects republican pluralism in the states. Notably, it spent only a paragraph dismissing Montana’s specific history of corporate domination that motivated its defense of a century-old Corrupt Practices Act after Citizens United v. FEC. Instead it substitutes its own one-size-fits-all theory of republicanism for those of the people in the states. For example, in McCutcheon v. FEC the Court seemed to suggest that out-of-state donors like the petitioner in that case are “constituents” to whom elected officials owe a duty of responsiveness, something that would surprise voters fed up with the invasion of state politics by outside influence.

This term the Court barely affirmed republican pluralism in two 5-4 cases: in Williams-Yulee v. Florida Bar the Court broke its recent trend of opening state judicial elections up to partisan politics, and in Arizona State Legislature v. Arizona Independent Redistricting Commission the Court upheld the important state tradition of political reform through direct democracy. Next term the Court will consider another case that could transform the general constitutional principle of one person, one vote into a specific judicial mandate of one voter, one vote.

In today’s polarized politics, for better or worse, the Supreme Court is the only branch of the federal government that can have much impact on the states’ republican forms of government. Congress is unlikely to help or hurt the cause of republican pluralism in the near term. Without Congress, the president’s options for national political reform are limited and dwindling. Reformers of all perspectives usually focus on these one-size-fits-all federal initiatives. This is a good time for them to recognize the virtues of republican pluralism in their respective states.

First, states offer several means of political reform unavailable at the federal level. Unlike the United States Constitution, nearly all state constitutions guarantee the right to vote and many provide for “free and open” elections. Most states enable some form of direct democracy to bypass entrenched legislatures on certain issues. Second, state-level reforms can adapt to distinct political cultures, increasing their potential efficacy and reducing the risk of unintended consequences. Finally, even for those who seek change on the national level, political reform in the states can serve as a true “laboratory of democracy” for trying various means of realizing particular republican values.

Even among like-minded reformers there is little agreement on what a republican form of government should be about: accountability or participation, majority rule or minority representation, deliberation or responsiveness, equality of influence or liberty of influence, legitimacy or self-expression, competition or stability and so on. There is even less practical knowledge of how we might achieve any of these competing ideals on the ground. We are unlikely to implement any one form of the republican form of government at a national level anytime soon. For now, we might focus on finding a republican form of government that works in the states where we live.