Democratic Deficit or an Oligarchy?
“It has been said that democracy is the worst form of government
except all the others that have been tried.”
I suppose the retort is that, if we have a democracy, these other forms must be really, really terrible. The U.S. seems mired, incapable of even starting to come to grips with our problems. After a 50 year struggle to get a rational health care system, we are closer but still not there. And, we may yet not get there. Waiting in the wings are issues such as reforms in financial regulation, climate change, and important civil rights issues. At the glacial pace of health care reform, these issues may not be reached, much less decided, before the next election cycle starts in full swing.
Some will say that we are doing just fine because inaction is the point of our governmental system. As Thomas Paine put it, “That government is best which governs least.” Whether or not that might still be true in some philosophical sense, the reason for our governmental inaction is not policy but is the result of a tremendous and growing democratic deficit in the way our government is structured and operates. And, of course, our government is not really that small, it is just ineffective.
A number people, particularly Sandy Levinson, have called out our democratic failings. Commonly reported causes of that deficit include federalism, a national government of limited powers, a President not elected by the people, separation of powers between the Congress and the President that diffuses responsibility, the disproportionate power of seniority in both Houses of Congress, each State getting two seats in the Senate no matter how miniscule or large its population and the filibuster rule of the Senate requiring supermajorities to get anything done.
The point I want to add to the discussion is the role of our system of political parties, the lack of much party discipline, and the role of campaign contributions. We tend to talk about the Republican Party and the Democratic Party as if they were monolithic institutions that play significant roles in governance. That assumes some discipline within each party that is lacking. Each elected national official – President, Senators and Representatives – has his or her own, individualized political party as do their opponents trying to replace them. Yes, individuals who call themselves Democrats or Republicans sometimes work together under the umbrella of one party name or the other. Yes, the so-called national parties have some money to contribute to the campaign war chests of some candidates. Presidential elections come as close as we get to national parties because in each election there is a national Democratic Presidential Election Party and a Republican one as well. But, these parties are really creatures of the candidates, not the other way around.
The two national parties are at best rival confederations of these individual parties that each support individual candidates. The national parties have little power to discipline members of their coalition or confederation. That point was made to me long ago when I heard William Proxmire speak. Proxmire served in the Senate from 1957 to 1989 and, I have to say, I admired him. With others in the Golden Age of Wisconsin politics, including Tom Fairchild who I clerked for, he rebuilt the Democratic Party. He was a true maverick, a regular pain in the neck to everyone including the Democratic Party to which he said he belonged. His “Golden Fleece Awards” pinpointed abuses whether by Republicans or Democrats. When asked why he was such a maverick, Senator Proxmire’s answer was that he did what he thought was the right thing. If anyone wanted to get rid of him, they should begin shaking hands at every Packer game, every UW football game, etc. In essence, he came back every weekend to campaign and so, as long as the people of Wisconsin continued to reelect him, he was an independent political force. I don’t recall his saying it at the time, but he did not take any campaign contributions because he did not want to owe anyone anything.
Except for the thing about not taking campaign contributions, most members of Congress today, absent some personal scandal, do get reelected rather consistently. If the people in their districts keep voting them into office, politicians can do what they want, pretty much free of control by the national political parties, their state parties and even public opinion. As long as they set up effective constituent service systems that keep voters in their districts reasonably happy at an individual level, they gain further freedom from the need to go along with their national parties or the leadership of their parties, whether the leader is the President, the Senate Majority Leader, the Speaker of the House or the respective leaders of the party in opposition. In office, each elected official holds the power to just say no to a demand to follow the party line. Or, maybe more importantly, they can demand something in return for saying yes. Witness earmarks and other advantages aimed at individual members of Congress that are all jumbled together to get and keep a majority on some bill that is completely unrelated to the earmarks and programs aimed at benefitting particular members of the legislature. In sum, there is individual negotiation, not unity of purpose and commitment to party that is at the core of our political system.
Some might say that this is an ideal system: each elected representative can work toward his or her own vision of the public good. I admit that the idea that party discipline is a good thing does not come easily. It sounds almost un-American.
Back in the day when Bill Proxmire refused to accept them, campaign contributions were not as important as they have become. Now, amassing large amounts of campaign contributions has become the coin of the realm in politics. Among the political savvy, it has come to be that the amount of campaign contributions a candidate raises is the marker for success or failure as a politician. It is almost as if the election is an afterthought. As more money has poured into the campaign coffers of individual candidates, the need for more money just grows and grows. Candidates can never have enough, much less too much money. I have always liked Hillary Clinton and continue to do so. But she had so much money to run for President, her primary campaign resembled a potlatch – burning money to show she had money to burn. With the example of Clinton, and more recently, the close call in the reelection of Mike Bloomberg as mayor of New York, maybe the assumption is weakening that the amount of money a candidate has collected or spends is the best predictor of electoral success. Some who voted for Bloomberg’s opponent may have done so because Bloomberg spent so much money on his reelection campaign. Nevertheless, the basic assumption that money is key to election victories is still overwhelmingly strong.
When Teddy Kennedy died, many took a look back and commented about the “lions” that inhabited the Senate when he joined it. Now they mostly look like mice. As campaign contributions become ever more important to achieve the goal of victory at the polls and reelection victories thereafter, our elected officials focus more of their time and energy on collecting money. They no longer have time to “do” public policy; they have been reduced to money collectors, with collecting money almost becoming the point of the game, rather than their serving the policy goals to best serve the needs of the people. The longtime Senate Majority leader in South Carolina was Edgar “Satchel” Brown, the satchel tag because it was alleged that he had an open satchel in his office that needed to be filled if a visitor expected favorable treatment. He began his service at a time before “one person, one vote” so state government was remarkably inefficient and ineffective. Brown, not Proxmire, is the model of the modern office holder.
Devoting themselves to raising campaign contributions is what makes most of the members of the House and Senate – Republican, Democrat and Independent — seem so small in character, so limited in their ability to even speak sensibly but so responsive to the sources of their campaign contributions. Just as important, as elected officials and candidates collect huge amounts of contributions for themselves, they become further insulated from any party discipline. While Bill Proxmire campaigned hard every weekend to make himself invulnerable to challenge by an opposing candidate or to be told what to do by the Democratic Party, the candidates of today instead collect huge sums of money to make themselves invulnerable to challengers but also to the influence of their supposed parties.
This would not be so antidemocratic if the contributions came more or less equally from all of the people. Most of us probably check the box for a contribution to the Presidential elections on our annual income tax forms. If we could do that for elections to Congress as well and if those contributions were all the money candidates could spend on elections, elected officials would be freed of the overwhelming job of raising contributions. But, as it happens, campaign contributions are tremendously asymmetrical. Mancur Olson taught us a long time ago of the problem of collective action. If we all stood together, contributed financing to candidates more or less equally, we would all be best off because the officials would have no reason to do other than what she thought best served the interests of all, i.e., the public interest. But organizing all of us, or even large groups of people, is tremendously challenging. Organizing small groups, however, is much easier, especially when the group organizes around a single issue that group members have a strong interest in. Thus, the incentive for group action diminishes as group size increases, so that large groups are less able to act for their own common interest than are small ones. Special interest groups focus their campaign contributions to yield tremendous impact at relatively small cost. And, since more money is always better, those with more resources can magnify their influence in Congress.
Elected representatives respond to those special interest groups that provide them with significant amounts of campaign contributions by granting access. So, even if the representative is convinced that she is acting in the public interest, how that vision is determined is influenced by the information she receives. Since it is so asymmetrical, weighted towards big contributors, the vision is also likely to be weighted.
All the elected national figures are in exactly the same position. It does not matter whether they are Republicans, Democrats or Independents, they all have their own political parties that get them elected and reelected. And the election machinery now runs on money. If they individually raise huge amounts of campaign contributions, they do not need to respond to calls for part unity. In short, these officials act individually, but there are no more Bill Proxmires.
If truth be told, we, the members of the public, are also at fault. Too many of us may be too much like the “humans” portrayed in the movie WALL-E: floating blobs of self-absorbed hedonism. Maybe we have learned the lesson of the logic of collective action too well and so we have given up working for the common good.
So, what can be done about this sordid mess we call our democracy, even though it more nearly resembles an oligarchy? Some reforms would take constitutional amendments, which are extraordinarily difficult to achieve. Reforming election laws so that the candidates need not live in their districts would take a lot of work in many states. But, putting the power in the national political parties to select which candidates would run in which districts would create more party discipline than now exists. Even that would not necessarily create enough added leverage for the national parties to impose some semblance of discipline. Eliminating the filibuster rule in the Senate would require every Senator to give up the added power he or she has as the last holdout augmented at the 60 vote cloture rule rather than a 51 vote majority rule. None of the Senators, regardless of party, are likely to be enthusiastic about ceding any of the personal power that holding out to be the 60th vote gives them.
What about campaign finance reform? As I write, we await a decision by the Supreme Court that might expand the new form of a Lochner grip that already restricts campaign finance reform. This time the Lochner grip on democratic decisionmaking is not based on economic substantive due process grounds but is based on highly attenuated notions that money given as campaign contributions is speech and so the contributions are protected by the First Amendment. It is true that elections now require that money be spent and that elections involve speech. But that does not make money speech. The outcome in the case before the Court can hardly be considered encouraging since last Term, four members of the Court did not think there was a constitutional problem when a litigant in a case pending before a state Supreme Court spent enough money to get a Justice elected who then voted on his behalf. Constitutionalizing the right to spend money in elections and not comprehending that asymmetrical campaign contributions weakens democracy and the rule of law simply helps bolster the power of the oligarchy. This makes public financing of elections, which would take away the advantage that focused interest groups have, ever more difficult. Getting politicians, who live and die based on the campaign contributions they can collect, to adopt true reforms seems quite unlikely. Requiring a constitutional amendment to authorize reforms is even more difficult.
To conclude on a somewhat more positive note, the impact of the Netroots phenomenon on the last election seems to have been substantial. Maybe that is the wave of the future. An internet-based attempt might work to publicize the sources of candidates’ campaign contributions, to correlate those contributions with actions taken by officials, to organize opposition to those who appear to represent special interests rather than to the public interest, and to get a significant number of small contributions directed to candidates who reject special interest influence. WALL-E blobs we may be, but blobs do have access to the internet.