Citation
Nicholas Stephanopoulos, Accountability Claims in Constitutional Law, 112 Nw. U. L. Rev. 989 (2018).
Abstract
Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability: restrictions on the President’s power to remove agency heads are disfavored because they reduce presidential accountability; Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices; state governments cannot be federally commandeered because such conscription lessens their accountability; and campaign spending must be unregulated so that more information reaches voters and helps them reward or punish incumbents.
There is just one problem with these claims — they are wrong, at least for the most part. To illustrate the error, the Article identifies four conditions that must be satisfied for incumbents to be held accountable: voters must (1) know about incumbents’ records, (2) form judgments about them, (3) attribute responsibility for them, and (4) cast ballots based on these judgments. The Article presents extensive empirical evidence showing that these conditions typically are not met in the scenarios contemplated by the Court. The crux of the problem is that voters are less informed than the Court supposes, more likely to be biased by their partisan affiliations, and less apt to vote retrospectively than in some other way. Accountability thus does not rise much in response to the Court’s interventions. The Article concludes by discounting accountability as a constitutional value without rejecting it altogether.