Fila Sophia

applied philosophy, deep democracy, sustainability / by A.R.Teleb

An alternative to campaign-finance reform?

[First appeared on openDemocracy on April 22, 2014.]

The still fresh McCutcheon v FEC Supreme Court decision, like the January 2010 Citizens United, has again set off the rage of activists and reformers—who call it nothing less than the privatization of government or the end of the republic! Indeed, removing aggregate contribution limits makes it easier for individual donors to influence elections the way, years earlier, Citizens United made it easier for corporations. Yet the apocalyptic cries, however comprehensible, are largely misdirected anger and misguided strategy.

Since Citizens United, there have been fervent movements to “get money out of politics” from Movement to Amend (to overrule the case by Constitutional Amendment) to Lawrence Lessig’s Rootstrikers petition (to enact tough campaign finance laws and promote a government-funded option). The idea seems plausible enough: remove large campaign donations and see saner policy and better government follow.

But let’s parse the obvious. Citizens United did not cause the predominance of money in American politics; it is but a symptom of it. Both election data and opinion polls show no significant differences in outcomes or policies before and after 2010. The reforms overruled in these cases began in 1971 (or 1907 depending on what counts as campaign reform). They were revised half a dozen times to make them “tougher,” but they never prevented the reality or perception of donor dominance over the major parties and Congress.

More importantly, even if the rules gutted by McCutcheon and Citizens United had been effective against the influence of big money in campaigns, they still would not have made elections free or equitable in any meaningful sense. There are many ways beyond campaign contributions that wealth influences government, and elections, as we will see, have bigger troubles altogether.

The loud protests, especially on the left, focused only on campaign finance miss the deeper issues and alienate potential allies—yes, libertarians like the Tea Party who would also scorn elites. The protests are wrong-headed because they attempt to empower the people by silencing the wealthy. This is both foolish and undesirable.

Written just after the Citizens United decision, Lawrence Lessig’s Republic, Lost: How Money Corrupts Congress–and a Plan to Stop It, advocates a conventional remedy, capping corporate and individual contributions to political campaigns and instituting a publicly-financed option. He believes this would “strike at the root” of corruption and single-handedly bring government for the common good.

Lessig makes a poignant observation. Disclosure laws themselves do not curb the influence of wealth, but rather sanction it by making it transparent and legal. In a like manner, lobbying, once considered silly and unseemly, has been professionalized and made acceptable.

Between 1974 and 2008, the average amount needed to run for a House seat climbed from $56,000 to $1,300,000. Behind these growing figures are the economic stakes. Government divvies up more economic rents—“corporate welfare”—than ever before, so businesses stand to gain immensely from investing in candidates, especially those on committees of interest to their industry.

But many campaign finance reformers miss the soft ways that money influences politicians—like the lobbyists who do favors for sitting politicians and promise more when they retire—and the problems associated with professional politicians (e.g., incentives to support short-term policies to win the next election). Most importantly, the structural biases of American elections that severely limit voter choice are paid little attention, if even understood.

Systemic bias begins at “winner-takes-all” or first-past-the-post plurality voting in Federal and most State elections. When combined with single-seat (gerrymandered) districts it virtually shuts out ethnic, cultural, and cognitive diversity in elected bodies. The people in Washington D.C. and most State Capitols tend to come from a small pool of types. They also tend to bring along a small pool of talents, ideas, and interests. This voting-cum-districting structure also mathematically ensures a two party system, or “duopoly.”

The detrimental effects of a duopoly go beyond limiting voter choice at elections, or allowing parties to extort donors and voters by pointing to a “worse” alternative. Duopoly reduces every important social or political issue to simplistic alternatives. It then drags the media and the public sphere along.

Complex, multifaceted issue are reduced to the pros and cons of two options, repeatedly pitched in emotional talking points by well-coached spokespersons. Duopoly poisons the collective brain, and campaign finance reform would do nothing about this.

In a previous Truthout article, I mentioned organizations in the United States working to give voters more choice through voting and electoral reform. But even those could not of themselves herald an ideal democracy.

No type of elections, no matter how free and clean, no matter how representative and diverse, would create democracy in the sense of government “by and for the people.” This appears not at all understood by mainstream, or even progressive, media and certainly not by the “expert” talking heads.

Elections always favor one elite or another, whether wealthy, connected, charismatic, or simply tall and handsome. Cash is only one source of privileged access to the political sphere. And, focusing only on elections, however scrubbed and reformed, neglects an important justification of democracy in the first place, tapping the knowledge of the public to lift the entire ship.

Elections alone cannot do that. But combined with non-electoral popular controls on governments they could. To his credit Lessig mentions a more thorough and in many ways easier reform: use citizen “Deliberative Polls” (first coined by James Fishkin) to amend the Constitution to not only reform campaign finance but also to reflect today’s values and realities.

The use of such “minipublics,” as Robert Dahl called them, is the kind of reform increasingly talked about by historians of democracy. Non-electoral checks on elite control have always involved counteracting the structural bias of the election mechanism by directly commissioning citizen amateurs in self-government.

Such is also the idea behind our jury system itself–perhaps the last remaining Anglo-American institution respected by both left and right. The jury, screened for conflicts of interest, shielded from lobbyists and mobs, leverages both society’s moral conscience and collective wisdom.

At least two contemporary political scientists are thinking along these lines. The first takes ancient Athens as focus of observation, while the second approaches Republican Rome through the eyes of the original political realist, Niccolo Machiavelli.

Stanford classicist and political scientist Josiah Ober, in Athenian Legacies, addresses the question: How did Athens flourish for so long despite differences and inequalities? Despite wealth inequality and a healthy amount of diversity, no single class or group dominated the others; furthermore, it was an open, democratic society.

The answer accordion to Ober resided in the institution of the Council of 500, a group selected by lottery once a year from among the ten administrative “tribes,” to manage the agenda of the mass citizens assembly (of 5000-6000). The smaller group restrained the influence of wealth and privilege that dominated the assembly and elected offices and, perhaps more importantly, created a network of citizen knowledge.

The team from each deme—artificial tribe containing different clans and localities—brought together amateurs from a diversity of backgrounds to serve their city for an entire year. Because they viewed it as both duty and privilege, and knowing they would serve once in their life time, Councilors took their role seriously.

Ober’s insight is that this non-electoral mechanism not only served the political purpose of letting people feel they governed themselves, but it had a cultivating (cognitive and cultural) benefit. In both the teams of 50 and Council of 500, knowledge from the different localities (demes) was brought to the center. Likewise, knowledge of how the central government worked and the issues of the day emanated out to the demes. Moreover, the experience of serving on the Council, that most citizens would be called to do at least once in their life times, gave Athenians the best imaginable training in the culture of politics.

Also written in 2010, the year of Citizens United, John P. McCormick’s Machiavellian Democracy makes a non-electoral recommendation for long-lasting reform. Machiavelli studied the practices of Rome during the Republic and instructed his contemporaries in Renaissance Italy on fostering long-term stability.

He noted that the masses had exclusive access to the Tribunate. The practical effect was not just to limit elite control of government but to create a stable equilibrium between the Patricians (elites) and Plebeians (commoners). For Machiavelli, it is the Prince and elites who are often ambitious and greedy, while the masses tend to simply want to be left in peace. Curbing elite power was key to Rome’s long term stability in his view.

A Roman Tribune was a people’s representative with veto power over both Senate legislation and orders from magistrates. Tribunes could call the Senate or Plebeian Council to order and propose laws before either. Most importantly, a Tribune was sacrosanct. Anyone, regardless of rank, who touched or hindered a Tribune within the city of Rome would face a death sentence from the Plebeian army. This sacrosanctity was not only a general veto power, but was a way for the people to impeach government magistrates for violating law or duty.

The subtitles of two central chapters of Machiavelli’s Discourses on Livy are themselves instructive:

The disunity of the Senate and the people renders Republic of Rome powerful and free….Showing how necessary the faculty of accusation is in a republic for the maintenance of liberty.

McCormick envisions, like Machiavelli, institutionalizing class conflict by making essential parts of government dependent on citizens selected by lot. He would create a modern People’s Tribunate that would exclude economic and political elites.

It would have the power to veto one Congressional bill, one Executive order, and one Supreme Court decision per year. It could also call one national referendum on any issue it wishes, and with a 3/4 vote impeach any federal official according to the US Constitution. To help right historical exclusion and institutional racism, selection to the People’s Tribunate would give affirmative action to African Americans and Native Americans thorough a weighted lottery.

Yet reforms such as these ignore perhaps the most important feature of American government today, one never imagined by the Framers or the Constitution: The enormous power wielded by Executive agencies like the FEC, FCC, FDA, SSA, etc…

These bodies not only set their own rules, that have the effect of law, but also hold quasi-judicial hearings to decide cases. In effect, they are a government within the government. Any reform that seeks to empower citizens should address this elephant in the room–an elephant missed by the strident critics of Citizens United and McCutcheon.

But democratic reforms like those suggested by Lessig, Ober, or McCormick could be easily adapted to the realities of Executive power. For example, one can imagine People’s Tribunes with veto power on the boards of the FEC, FCC, FDA, and every important agency.

These only sketch the possible starting from direct citizen empowerment. And particular fixes are beyond my present scope, which is to report a fact about would-be reformers and online petitioners. Those who imagine themselves “striking at the root” are merely tapping on the trunk with blunt instruments. At any rate, protestors should stop whining about wealth and privilege and start thinking about empowering those without either.

The lesson from ancient democracies and republics? It is better to arm the people than attempt to disarm elites—who are, after all, people too. It may be better to concede elections to elites but, in turn, commission ordinary people to exercise their judgment and defend their interests through other political mechanisms. But what do I know?

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