REVISION: Governing and Deciding Who Governs

By Josh Chafetz

In McCutcheon v. Federal Election Commission, Chief Justice Roberts wrote that, "Campaign finance restrictions that pursue other objectives [than eradicating quid pro quo corruption or its appearance], we have explained, impermissibly inject the Government 'into the debate over who should govern.' And those who govern should be the last people to help decide who should govern." This passage sounds great — after all, who could object to an attempt to purge official self-dealing, especially in the election-law context? And therein lies its insidiousness: this rousing language masks a programmatic attempt by Roberts and his colleagues to distance themselves rhetorically from the structures and processes of governance and thereby to justify their privileged place above the other branches with regard to such issues. This essay, written for the University of Chicago Legal Forum's 2014 "Does Election Law Serve the Electorate?" symposium, identifies and ...

Josh Chafetz Professor of Law
Photo of Josh Chafetz

Contact Information

Cornell Law School
208 Myron Taylor Hall
Ithaca, NY 14853-4901

Phone: (607) 255-1698
Fax: (607) 255-7193


Megan Olivares
Cornell Law School
249 Hughes Hall
Ithaca, NY 14853-4901

Professional Biography

Josh Chafetz received his B.A. from Yale University, his doctorate in Politics from Oxford (where he studied as a Rhodes Scholar), and his J.D. from Yale Law School. Following law school, he clerked for Judge Guido Calabresi of the United States Court of Appeals for the Second Circuit.

His research interests include structural constitutional law, American and British constitutional history, legislation and legislative procedure, American political development, and the intersection of law and politics. His second book, Congress's Constitution: Legislative Authority and the Separation of Powers, was published by Yale University Press in 2017. He is also the author of Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (Yale University Press, 2007) and is a co-editor (along with William N. Eskridge, Jr., Elizabeth Garrett, and James Brudney) of the leading casebook in Legislation, Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy, published by West.

His scholarship has been published in a number of top law reviews, including the Harvard Law Review, Yale Law Journal, University of Chicago Law Review, University of Pennsylvania Law Review, Duke Law Journal, Notre Dame Law Review, and Yale Journal of Law & the Humanities, among others. He has also written for a number of popular press outlets, including the New York Times, the Washington Post, Politico, Slate, and the New Republic. He is currently a Contributing Writer for the Capitol Hill newspaper The Hill.


B.A. 2001, Yale University
D.Phil. 2004, University of Oxford (Politics)
J.D. 2007, Yale Law School