Document Type

Article

Publication Title

Virginia Law Review

Abstract

Law has much to say about the practice of legislative representation. Legal rules from different substantive domains collectively determine the landscape in which legislators act. Most obviously, the law of democracy—the law regulating elections, redistricting, and money in politics—shapes the incentives that legislators face and the sorts of representation that they provide once in office. But so too does the law that governs legislative organization and procedure. Congress and other legislatures are governed by rich bodies of internal rules, many of which receive little attention from either the public or legal scholars. These internal rules can empower or constrain legislators. By the same token, they can empower or constrain those that seek to influence how legislators behave, such as party leaders and interest groups. This Article examines how law shapes representation. It takes a legislator’s point of view of public law, looking to how law shapes legislators’ choices and incentives. In taking this approach, the Article makes three principal contributions. First, it shows how the law of legislative representation is pluralist. Rather than unequivocally pointing legislators toward one type of representation or another, the law enables and encourages legislative responsiveness to each of three groups: constituents, interest groups, and party leaders. The law gives each of these groups distinct tools for exerting influence over legislative behavior, but it does not institutionalize the primacy of any one of them. Second, fully understanding representation requires focusing on internal legislative organization and procedure. Those topics can be just as consequential for American democracy as more familiar constitutional law and law of democracy topics. Centering legislative organization and procedure reveals powerful possible levers of congressional reform. Such creative approaches are especially important given the constitutional and political hurdles that stand in the way of many reforms to the law of democracy. Third, a detailed descriptive account of political institutions and legal rules should be part of our normative theorizing about representation. Because representation is a construct of law, understanding how it operates—and how it should operate—requires close attention to legal rules.

First Page

765

Volume

107

Publication Date

2021

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