77 Tex. L. Rev. 1705 (1998-1999)
Hydraulics of Campaign Finance Reform ; Issacharoff, Samuel ; Karlan, Pamela S.

handle is hein.journals/tlr77 and id is 1721 raw text is: The Hydraulics of Campaign Finance Reform
Samuel Issacharoff* and Pamela S. Karlan**
Electoral reform is a graveyard of well-intentioned plans gone awry.
It doesn't take an Einstein to discern a First Law of Political
Thermodynamics-the desire for political power cannot be destroyed, but
at most, channeled into different forms-nor a Newton to identify a Third
Law of Political Motion-every reform effort to constrain political actors
produces a corresponding series of reactions by those with power to hold
onto it.
Consider a few simple examples. The Supreme Court finally broke
the lockhold of the self-interested refusal to redistrict in the landmark Baker
and Reynolds decisions.1 Three decades later, however, the political
gerrymander is not only alive and well; it has assumed the role of an
institutionalized industry that seems largely immune from substantive
review.2 Similarly, the Court's jurisprudence under the Equal Protection
Clause3 and the Voting Rights Act of 19654 was intended to dampen the
* Joseph D. Jamail Cententlial Chair in Law, The University of Texas School of Law; Visiting
Professor of Law, Columbia Law School.
** Professor of Law, Stanford Law School. We thank Richard Briffault, Dan Ortiz, Rick Pildes,
and Kathleen Sullivan for discussing with us many of the ideas that appear in this article. Carrie
Josephson, Katayoon Majd, and Justin Nelson provided superb research assistance.
1. See Reynolds v. Sims, 377 U.S. 533,577, 583-84 (1964) (requiring decennial reapportionment
and equipopulous districts); Baker v. Carr, 369 U.S. 186, 237 (1962) (holding that claims of
malapportionment are justiciable under the Equal Protection Clause).
2. See, e.g., Richard L. Engstrom, The Supreme Court and Equipopulous Gerrymandering: A
Remaining Obstacle in the Quest for Fair and Effective Representation, 1976 ARIZ. ST. L.J. 277, 278-
79 (asserting that neither the Warren Court nor the Burger Court sufficiently handled the issue of
gerrymandering). As a practical matter, the Supreme Court's test for unconstitutional political
gerrymanders, which requires the plaintiffs to show consistent] degrad[ation ofl a voter's or a group
of voters' influence on the political process as a whole, Davis v. Bandemer, 478 U.S. 109, 132 (1986)
(plurality opinion), has essentially never been met. See Pamela S. Karlan, All Over the Map: The
Supreme Court's Voting Rights Trilogy, 1993 SUP. CT. REV. 245, 250 (outlining what plaintiffs must
prove in a political gerrymandering case).
3. See, e.g., Shaw v. Reno, 509 U.S. 630, 648 (1993) (suggesting that race-conscious districting
may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes
said to counteract); United Jewish Orgs. v. Carey, 430 U.S. 144, 167 (1977) (opinion of White, J.)
(suggesting that states might draw majority-nonwhite districts in order to avoid dilution and minimize
the consequences of racial discrimination by voters).
4. Pub. L. No. 89-110,79 Stat. 437 (1965) (codified as amended at42 U.S.C. §§ 1973 to 1973bb-
1 (1994). See Thornburg v. Gingles, 478 U.S. 30, 80 (1986) (finding that North Carolina's
redistricting plan violated the Voting Rights Act of 1965 because the plan resulted in racial dilution of
the vote).

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