To Awaken Democracy
As Democracy Spring and Democracy Awakening begin a week of sit-ins and civil disobedience on Capitol Hill and as your inbox fills up with spam via the End Citizens United PAC it is worth pausing to consider whether overturning Citizens United would in fact curb corruption in Washington and what alternatives there might be.
End Citizens United and the War on Drugs
Whether you consider yourself a progressive or a conservative, chances are you are one of the millions of Americans repulsed by the recent flood of money into political campaigns. Two contemporary Supreme Court cases – Citizens United v. F.E.C (2010) and McCutcheon v. F.E.C. (2014) – are thought to be responsible for this deluge. In response, thousands have contributed to efforts, such as the End Citizens United PAC, to overturn those holdings via Constitutional Amendment. Putting aside the irony of raising millions of dollars to get money out of politics, there are a number of reasons why these efforts will be ineffective at inducing meaningful campaign finance reform.
The most compelling reason why these efforts are unlikely to succeed is that they address a symptom rather than the underlying cause. The Constitutional Amendments advocated by groups disgusted with rulings like Citizens United, while well intentioned, are doomed to fail for the same reason as the “War on Drugs” – they attempt to limit supply without addressing the underlying demand.
Undeniably the demand for money in politics has skyrocketed. Whereas in 1990 it cost on average around $400,000 to campaign for a seat in the House of Representatives, in 2012 the figure climbed to $1.6 million. Similarly, in the Senate the costs have risen from $3 million in 1990 to $12 million in 2012. Over the entire 2012 election cycle, it was estimated by the F.E.C. that the total expenditure exceeded $7 billion – more than the yearly GDP of some 34 nations.
Any attempt to curb this supply is just as quixotic a strategy as attempting to end the supply of illegal recreational drugs because in both cases the demand is inelastic. This is an important point to stress.
Just like the War on Drugs made drug trafficking more profitable, more violent, and more dangerous, attacking the supply side of the campaign finance problem will only prolong the problem or make it worse. Trying to attack the supply side of the equation is particularly futile because as long as the demand exists, the money will get through in various ways, as we have recently witnessed with the ingenious uses of Super PACs. For example, by making cocaine temporarily more expensive, the WOD induced the creation of crack. By “cracking down” on crack, it made methamphetamines more popular, then prescription drugs. Analogies can easily be drawn between the emergence of new ways of getting high and new ways of getting campaign funding.
A more effective strategy would have been to decrease the demand for drugs not their supply. The hundreds of millions spent on arms and overseas interventions, law enforcement, and prisons might have been better spent in public health to make sure that people were better adjusted or had better access to addiction treatment and mental health help.
At any rate, overturning a SCOTUS case via Amendment is both extremely difficult and risky. It requires passage by both houses of Congress and ratification by 3/4 of the states. This is unlikely to happen unless one party controls both Houses and the Presidency, and it depends on a wave of support through 38 of the 50 states. The last time this was tried was 1972 with the Equal Rights Amendment (ERA), also in reaction to “badly-decided” SCOTUS cases of the early 1970s. It was quickly passed by both houses of Congress and was sent to the states for ratification. It would have made equal treatment between the sexes an explicit constitutional guarantee. Efforts to ratify it among the states were abandoned in 1977 when only 35 had ratified. By that time most people had forgotten about it. Today, the public behind End Citizens United PAC seems to have forgotten too.
Moreover, there is no guarantee that a Constitutional Amendment could have the desired result: curbing the effects of wealth on members of Congress and the policies they institute. Such an Amendment could only authorize Congress to pass new campaign finance legislation, not that such legislation would be effective. It would be naive to think that members of Congress (beyond the principled few) would whole-heartedly write campaign finance legislation with teeth, while they benefit from the status quo. McCain-Feingold could be restored, but no serious observer of American politics believed that it indeed do what it claimed to do.
Big money and lobbying dominated Congressional time and policy even during the years that McCain-Feingold was good law. PACs and other less visible mechanisms dominated the campaign finance system, and the “revolving door” between government and business, especially in the military tech, pharmaceutical, and financial sectors, meant that persons with conflicts of interest were charged to regulate their own friends and colleagues. Congresspersons who “behaved” well while on an appropriate committee could not only rely on perks from lobbyists and campaign contributors, but could also guarantee themselves cushy consulting jobs at retirement from government with one of the industries they once regulated, or helped subsidize through tax breaks or direct payments.
So now can we target the demand for big-donor campaign funding? Admittedly, a publicly-financed system such as the one proposed by Lawrence Lessig and Rootstrikers would somewhat dampen money’s tight grip on individual Congresspersons, but its benefits would be small. Rather, there are several more direct, effective and less costly reforms. They all involve making money matter less, either by making government more representative, making politicians more accountable or making elections more competitive. Such reforms target the electoral and legislative process itself and would make it hard or impossible for the few to dominate the many.
One such mechanism, large or state-wide congressional districts with cumulative voting, would both make elections more competitive (by eliminating gerrymandering) and increase the ideological and demographic diversity of Congress (or state legislatures), making it more representative of the public. A state that has, for example eight, separate districts, drawn by the party in power to create safe seats for itself, would now have one (or two) large districts where each voter has eight (or four) votes to give to any combination of candidates. Candidates could still run on regionally specific platforms, but their success would never be guaranteed. Moreover, ethnic or ideological minorities, say Latinos or Libertarians, who could never muster enough votes under single-member plurality districts drawn by the majority ethnicity or ideology would be able to pool their votes together and elect someone to represent their views.
It is currently used in a few cities and counties throughout the US and was used by the State of Illinois for about a century. Another added benefit would be to increase ideological and demographic diversity within each party, making gridlock less likely in a two party system.
Another reform, already used in cities like Oakland, San Francisco, Cambridge, Minneapolis, and others, is Instant Runoff Voting (IRV). Rather than voting for a single candidate, voters rank their top few candidates in order of preference. When no single candidate wins a majority of first place votes, the last place candidate is “eliminated” from the ballots and the remaining are moved up. The elimination is repeated “instantly” until one candidate receives a majority of first place votes. A voter never has to worry about “wasting” her/his vote and no candidate has to worry about being a “spoiler.”
Voters, when they can vote their true preferences, tend to show up on election day. High participation is itself a curb on the influence of of the few because it makes elections more competitive, more so when multiple candidates are encouraged to run by the IRV setup.
Which brings us to another “reform” that would decrease the power of money in politics: increase voter participation by making voting easier. The larger the number of people who vote, the harder it is for a few to “buy” politicians because elections, especially when combined with the above reforms, would be highly competitive. A would-be contributor would never know who to “bet” on and voters would be more in control especially if they can vote their true preferences with IRV.
Lastly, we can imagine a slew of possible non-electoral reforms to hold politicians accountable, or to check their power, using citizen panels empowered to vet candidates or vet legislation before it becomes law. Randomly-selected, demographically representative citizen juries could, for instance, vet (or publicly evaluate) potential candidates before they appear on the ballot. This could work using a process like the one used in Oregon to produce Citizens’ Initiative Reviews for the voter handbook. Another possibility is that a different panel or jury vet each piece of legislation in the lower house of Congress, for example those dealing with appropriations. Such a people’s “veto” was an important part of the Roman Republic, where the Plebeian Tribunes checked the power of the Patrician Senate. I’ve previously written about non-electoral ways for the people to check the power of elites: Campaign Finance Reform Would be a Wasted Effort
Regardless of which of these relatively simple reforms that can be carried out state by state without a Constitutional Amendment, would do a heck of a lot more to curb the influence of big money, and make government both more representative and accountable to the people it claims to represent. At any rate, we should start talking about them rather than keep hitting our heads against the wall.
Fila Sophia 