The Constitution and the Failures of Contemporary American Politics

Note:  This column recently appeared in Politics In Minnesota.

Is the polarization and dysfunctionalism in contemporary American politics an accident or  a product of design failure?  The more one thinks about it the conclusion may well be that the many of the problems now confronting the United States are the product of a faulty Constitution, or at least one that may perhaps have outlived its times.
    Many mythologize our Constitution and the men who wrote it. This seems especially true among the Tea Party faction of the Republican Party. They see in James Madison, Alexander Hamilton, and other Founding Fathers a “genius” to the American political process (as historian Daniel Boorstin described it) where the product of their efforts was creation of a representative democracy that really reflected the first three words of the Constitution–“We the people.” Yet historian Richard Hofstadter counseled against seeing the Constitutional Framers as gods, but instead as who they really were–smart politicians with their own interests, prejudices, and limitations who affected compromises to create the American political system.
    Among lost milestones in 2013 was the one hundredth anniversary of the publication of Charles Beard’s An Economic Interpretation of the Constitution of the United States.  In that book Beard made a radical argument that the Framers were economic elitists who did not trust the common man, writing a Constitution to further their economic interests which they felt were threatened by America’s first constitution, the Articles of Confederation.  The Articles government according to Beard, was an economic disaster for business interests, and many of the constitutional framers were being hurt by this government.  The tipping point for them was Shay’s Rebellion, demonstrating to many of them, including Alexander Hamilton, the dangers that the people could pose to the rich.
    Beard’s book catalogues the economic background of the constitutional framers, all slaveholders or wealth businessmen except for a couple.  They wrote a document giving Congress vast powers to regulate and strengthen commerce, and it was also constitution that preserved slavery, stood silent on voting rights, and otherwise created a system of checks and balances, separation of powers, and other power-dividing mechanisms that made it difficult, as James Madison said, for majority factions to take over the political process.  Political scientist Robert Dahl described the Constitution too as a mechanism to slow down political change, making it difficult to effect reform or change unless there was significant time and consensus to achieve it.
    Beard’s controversial challenge was to assert that the complex constitutional system was not meant to produce democracy, but instead shield the rich from the poor and to entrench the power of the former forever.  John Jay, one of the framers and co-author of the Federalist Papers, once exclaimed that “Those who own the country should rule it,” while James Madison famously declared in Federalist number ten that: “But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society.”  For Beard, the real genius of American politics was how the Framers recognized the inevitability of class conflict but designed a political system than  transformed it into group competition, forever dividing the people among various interests, thereby sublimating strife between the rich and poor.  In short, as former Supreme Thurgood Marshall said, “We the people” was the reality of the Constitution, it excluded many from its promise and it took a Civil War, two civil rights movements,  and more than a score of amendments to even give faint meaning to the promise of these three words.
    Looking back over time one wonders to what extent Beard was correct in that the Constitution was designed to assure rule by a privileged elite or that, to update his thesis, that the polarization and dysfunctionalism in contemporary American politics is not just an accident but is exactly what the Framers wanted.  America is a society where economic privilege allocates political power.  Who votes, who runs for office, who gives money, and who benefits from our public policies is significantly determined by economic status.  The “winners” in the American political system look surprisingly a lot like the profile of the constitutional framers of 1787. 
    The Electoral College mechanism for electing the president along with the federalism it embodies have split America into regions since the early days of the republic.  Small states, such as in Senate, can gang up and filibuster legislation and thwart majorities even though they only constitute a small portion of the  population.  And in the House the requirement that every state receive at least one House member too gives disproportionate influence to small populations.  Couple that with gerrymandering and we have created a political system where there are increasingly fewer and fewer incentives to compromise.  This means fringe voices, especially in the political right these days, are given a virtual veto over reform.
    Certainly the American political system is not meant to be winner take all pure populism.  It is a balancing of majority rule with minority rights, but is the minority the Koch brothers and others with money, or those hostile to the rights of women, people of color, and the GLBT community?  The political process which was designed as a compromise seems increasingly unable to create the incentive to compromise, or at least it does not work because some do not want it to.  Instead of seeing our political system now as one where the slowness to change and demand to compromise  were viewed as virtues to protect liberty, it now appears to be one that is unable to act, paralyzed  by gridlock.
    If Charles Beard as updated is correct, one should not be surprised by what is happening across the United States.  The polarization and dysfunctionalism is either an intentional feature to preserve the power for a few, or as law professor Sanford Levinson contends, a sign of original design flaws in the Constitution that are now coming to haunt America more than two centuries later.  In either case, as we head into the 2014 and then 2016 political cycles, we should ask whether the Constitution we mythologize really is up to the task for the demands of the twenty-first century and if it is the cause of, or the impediment preventing the resolution of many of the pressing problems in contemporary American politics.

The Lessons of McCutcheon: The First Amendment as Thuggery

Since when did the First Amendment become a tool of thuggery to suppress speech rather than enhance it?  This is essentially what the Roberts Supreme Court did in the recent McCutcheon v F.E.C.  decision striking down aggregate political contribution limits.
    At the core of the McCutcheon  is the argument that all individuals have a right to expend unlimited money for political purposes.  Because of that right, federal laws that overall limit individuals to contributing approximately $123,000 per year to candidates and political parties violated  their right to free speech.  Who knew that such a cap was so suppressive and chilling of  free speech? At least this is what the Roberts Court wants us to believe.  We should all rejoice in our new found freedom to spend as much as we want to affect the political process.  Yes, now the rich  and poor equally have the right to spend more than $123,000 per year for political purposes much in the same way that writer Anatole France once said that the rich and poor were equally free to sleep under the bridge.
    That is false sense of equal rights is one of several points that the Roberts Court misses in McCutcheon.  The rich and poor may equally have the same right to spend unlimited amounts of money, but the reality is that only the rich shall be able to use this right.  For the other 99.9% of the population, McCutcheon has nothing to do with rights.  It does not mean that your tired, your poor, your huddled masses yearning to breathe free, will spend more.  No, it only means a few will do so because they will be able to.   This is what defenders of  McCutcheon either fail to see, or which they see clearly and embrace the decision because of its implications to favor their views.
    The shallowness of the McCutcheon argument lies in a misguided notion of what the First Amendment free speech clause is supposed to be about.  While of course John Stuart Mill wrote long after the Founding Fathers penned the First Amendment, his On Liberty remains perhaps the single best defense of free speech.  Free speech is necessary not simply to express ourselves, but to gather and circulate the information necessary to make informed political choices and to make democracy and the search for truth possible. Free speech is not a silencing tool but an invitation to dialogue, a declaration that were only one side to speak then it would shield dogma and invite censorship. As Mill stated: ”There can be no fair discussion of the question of the usefulness (of an idea) when an argument so vital may be employed on one side, but not on the other.”  It takes at least two to have a conversation; one person shouting at another  is not free speech it is intimidation.
    The First Amendment free speech clause is not meant to be a right for one or the few but for all.  It is recognition that in a society all of us have a right to speak, and to do that, as in any social situation, there are rules of communication that make a conversation possible.  There is no way that a rule that says all of us have an unlimited right to speak is viable; at some point one has to understand that the First Amendment rights of some have to be read or understood in light of the First Amendment rights of others. The right to free speech cannot be interpreted in such a way that  the rights of a few can suppress the free speech rights of others.  As philosopher John Rawls once declared:  “[E]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Rights to free speech must be read within a social context of like liberty for all.  McCutcheon and its defenders fail to recognize this principle.
    At one time the Supreme Court recognized it.  In cases such as  Burson v Freeman the Court was confronted with conflicting First Amendment rights when it ruled that states could impose a ban on political advertising within one hundred feet of a polling place.  Here there were contending  free speech rights–to vote and to engage in political advertising–and it was impossible to allow for  both in absolutist fashion.  To allow an absolutist position for both rights probably would have meant neither were possible.  Contending rights of differing individuals have to read or understand in ways that respect the rights of both.  Similar tradeoffs or balancing of rights were made in Red Lion Broadcasting v. Federal Communication Commission where the fairness doctrine was upheld, ruling that the free speech rights of broadcasters must be balanced against the first Amendment rights of the public.  The same was true in Smith v. Alwright, where the Court ruled that the First Amendment associational rights of parties had to be balanced against the rights of individuals to participate in politics.
    McCutcheon, along with the 2010 Citizens United v. Federal Election Commission decision allowing corporations to expend unlimited money for political purposes, ignores the social context for free speech rights.  These decisions privilege the rights of the few at the expense of others.  Even worse, they assume that everyone has an unlimited right to speak and that this speech includes the expenditure of money.  It forgets an old adage many of us learned when we were growing up–My right to extend my arm goes no further that your face. 
    McCutcheon crabbed absolutism seems to assume that everyone has a right to spend unlimited amounts of money, even if that means that some have a right to drown out of suppress the free speech rights of others.  That is what McCutcheon will do.  Its impact will be to give some a  megaphone to speak, serving a a sledgehammer to silence others.  The First Amendment free speech clause was never meant to be a bullying tool or an instrument of thuggery but that is what the Roberts Court did in deciding that the rich and poor equally have the right to spend unlimited amounts of money for political purposes.

Metaphysical Not Empirical: The Problems with McCutcheon

The Supreme Court decision McCutcheon v F.E.C. striking down aggregate contribution limits is flawed for many reasons.  Critics will complain that the Court adopted a crabbed and narrow definition of corruption, or that it seemed inured to the role of money in politics, or that it is one more extension in giving more rights to the wealth and in sanctifying one dollar, one vote as the defining philosophy of the Roberts’ Court view of American democracy.  All these criticisms have merit.  But the deeper flaws lie in something more fundamental–the decision is the triumph of legal metaphysics, devoid of a real theory or understanding regarding how American democracy should and do operate in the real world.

            As I argue in my new book  Election Law and Democracy Theory, the most curious feature about election law scholarship and adjudication, including that by the Supreme Court, is the degree to which it is theoretically rudderless.  What is meant by rudderless?  Simply put, it is the extent to which the critical debates and issues that are at the center of many election law disputes are often addressed in the most minimal of matter, generally without regard to any broader sense of a political theory which should guide decisions.  In reaching decisions addressing political speech versus promoting the integrity of elections in the area of campaign financing, or ballot access versus electoral integrity, voting rights versus fraud prevention, or any other innumerable issues, election law scholars and judges seem to assume that the matters at stake are devoid from a broader political or democratic theory context.  This is what occurred in McCutcheon.

            On one level the Supreme Court yet again issued a decision in which it examined one issue about American politics and elections–the role of money or the right of individuals to make political contributions–without adequately considering the broader impact of that decision on the actual performance of American democracy.  The Court treats in isolation one aspect of our political democracy–the right of an individual to spend money–without considering other competing values and how they come together to form a more complete theory about government, politics, and elections.  Yes individuals may have a right to expend for political purposes, and such an act may further an important value of free speech, but that is not the only act and value that must be furthered or considered in a democracy.

            Democratic theorists such as Robert Dahl point out that a theory of democracy includes several values, such as voting equality, effective participation, enlightened understanding, control of the agenda, and inclusion.  For each of these values there is a need to construct institutions that  help sustain them or give them meaning.   Effective participation includes institutions that create for example free and fair elections, opportunities for non-electoral participation, and competitive parties. However, none of these values operates in isolation; a real concept of democracy requires that one understand how they interact, coming together to form a fuller theory of American Democracy.

            Democratic theories have ontologies.  Each theory  defines its object of inquiry, the critical components of what makes a political system work, and what forces, structures, and assumptions are core to its conception of governance.  This ontology will not only include a discussion of human nature but also examination of concepts such as representation, consent, political parties, liberty, equality, and a host of other ideas and institutions that define what a democracy is and how it is supposed to operate.  The Supreme Court, along with most election lawyers, have no sense of theory. In McCutcheon, the Supreme Court isolated one value or practice–expending money–in isolation from many others, asserted that such a practice was protected by the First Amendment, and either called it a day or mistook such a claim as a theory. This is hardly the case.  At best it is the most minimal concept of a democracy, at worst it is no theory.  Among many election lawyers they have made the same mistake, confusing advocacy of a single claim with a broader theory of democracy.  Or in the contrary their view of democracy is reductionist–it is about saying that the allocation of political power and influence is not different than the selling of cars or toothpaste.  Markets may be great ways to allocate commodities, but they are not appropriate tools to sell or distribute political power or democratic influence.  For those who think it is, they are confusing politics with economics, elections with markets.

            Thus on one level the Supreme Court in McCutcheon had no theory and it was all empirical–some individuals denied the right to max out their political contributions on as many candidates and organizations as they want.  But in another sense the decision was all theory and not empirical.  The Supreme Court had its own metaphysics about how it thought people acted. The majority opinion waltzed out a series of hypothetical ways money could be diverted in elections was conjecture at best, devoid of real empirical evidence.  Moreover, the majority opinion, along with many of the defenders of it, make many assertions that simply lack empirical  foundation.  Is it real true that the decision means groups and individuals will be more likely to shift giving to candidates and away from third party groups?  Are political parties strengthened by taking more special interest money?  We have no real evidence to support these claims. 

            For the most part, the assumptions made by the Court and many election lawyers are devoid of empirical political science analysis.  They are highly rationalistic models about human behavior, akin to the theoretical  models economists and other social scientists often make about worlds and behavior they do not exist in reality.  Decisions such as McCutcheon are what many of us call formalistic.  They ignore the wisdom of Supreme Court Justice Oliver Wendell Holmes, Jr.  Who once declared: “The life of the law has not been logic; it has been experience.”  It should be experience, evidence and data, and not blind assertions or theories, that guide decisions about the role of money in politics.

            Overall, the real failure of McCutcheon is that it is both too theoretical and not sufficiently theoretical, and too empirical and not empirical enough.  It ignores how an American democracy should operate, and how its institutions do actually work both within a comprehensive theory and in the real world.