Kabuki Democracy—and How to Fix It
It is not so surprising that the problem of Senate reform comes down to the power of the purse, a problem the Supreme Court has greatly exacerbated in recent years with its corporate-friendly rulings in virtually all matters relating to money and speech. The most practical way to combat private financial influence in campaign funding is to reduce it. Yet as long as the Supreme Court continues to equate money with speech and corporations with people, legalized bribery will likely continue to corrupt the system. Absent an awakening on the part of a majority of Supreme Court justices, the only practical avenue to empowering the public interest in these battles is to subsidize campaigns. In this public funding system, candidates agree to cap their spending in exchange for government funding. The cost of campaigning drops, and the amount of money candidates accept from private donors is drastically reduced. And even though participation is voluntary, candidates are often eager to embrace it, given how much more enjoyable, to say nothing of convenient, it would be for them to cash a campaign check for a few million dollars than to endlessly work the phones begging rich folks for money.
Public funding is an elegant remedy to the problem of institutional corruption: instead of accepting legal bribes from donors in exchange for special consideration, candidates receive money from taxpayers in exchange for a pledge to spend less on their campaigns. And it works. Without much fanfare, public funding operated effectively for six consecutive elections, beginning in 1976, when candidates in both parties accepted funds and spending limits. The campaigns were cheaper, and the parties enjoyed relative financial parity. The parties split elections three to three during that period, and challengers beat incumbents in three out of the five races when incumbent presidents ran for re-election.
One obvious problem with the model is that it leaves one side at a disadvantage if it decides to opt in and the other side does not, as happened to John McCain in 2008. Moreover, even when Congress did pass the moderate McCain-Feingold legislation in 2002 (since decimated by the Supreme Court), it failed to pass the component of the bill designed to rationalize the cost of campaigns: a limit on what broadcast and television stations could charge for campaign commercials. The provision originally passed by the Senate 69 to 31, but it died in the House following furious lobbying by the National Association of Broadcasters and the cable television industry, leaving the United States alone among 146 countries in refusing to provide free television time to candidates. As a result, more money is needed to offset the recent explosion of private funding as well as the rising costs of political campaigns.
But presidential elections are not the main problem. Congress is. And its members have proven quite adept at protecting their prerogatives, particularly when it comes to retaining their jobs. The House and Senate have taken a range of small steps to regulate campaigns in recent years. They agreed to ban companies and unions from directly contributing to candidates, capped the amount that individuals can give, limited the use of "soft money" by the parties and regulated how independent groups spend money on television commercials. Even though these restrictions have had some impact on the margins of a few elections, they are far from the main event. The truth is that even though Congress supports public funding for presidential campaigns, it continues to resist public funding for itself. This is understandable. On Capitol Hill incumbents enjoy a consistent fundraising advantage over their challengers, and they like it that way. As the late Senator Robert Byrd declared in 1987, "The need for Congressional campaign financing reform is obvious, but just because it is obvious does not mean that it is easy to attain."
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Yet the times may be a-changing, if only for reasons of self-interest. William Cohen, a former Republican senator from Maine, told Charlie Rose in August that he found the pressure put on candidates for Congress by lobbyists to be "obscene," adding, "If the American people saw what legislators go through...[with lobbyists saying] 'Don't forget we supported your campaign,' I think the American public would finally turn against that." This disgust is not confined to former officials and outsiders. Newer, younger members increasingly say the process is miserable and untenable. In a 2010 survey of freshman members, Politico found Congressional schedules packed with several hours of fundraising per day. That includes hours of "call time," phone-banking potential donors from the "cramped cubicles" of campaign committee offices that one freshman likened to a "sweatshop."
And it's true at pretty much every level of politics. Indiana Democratic Senator Evan Bayh told Newsweek on the eve of his retirement, "It's miserable. It is not uncommon to have a fundraiser for breakfast, for lunch, and for dinner, and if you have spare time in between, you go to an office off Capitol Hill and you dial for dollars. Then the weekend rolls around, and you get on a plane and travel the countryside with a tin cup in your hand. And it gets worse each cycle." What's more, in the most critical cases the majority of the money does not even come from within the states. In Democrat John Kerry's 2008 Massachusetts Senate race, for example, two-thirds of both candidates' contributions were from out of state. Consider the absurdity: wealthy donors who cannot legally vote on the outcome of a local election because the winner will not represent them can wield far more influence at the ATM than at the ballot box. (Tea Party activists who get so exercised about alleged violations of the Constitution by liberal Democrats might take a moment to consider the abrogation of the founders' intent by the blatant practice of people who have no standing as voters buying elections. Then again, we might wait an entire lifetime for such an awakening. In the meantime, plenty remains to be done.)
Again, the clearest path to fixing this mess is voluntary public funding. The Fair Elections Now Act, which had more than 160 co-sponsors in the House and thirty-five in the Senate at the end of the last Congress, would create a public funding system for Congress modeled after the presidential system administered by the Federal Elections Commission. The act would allow candidates to collect $100 donations (or less) from residents of their own states, which would be matched four to one with Fair Elections funds. Fair Elections would be fully funded and would not cost taxpayers anything. This would dramatically reduce spending in a host of races in which outside donors dominate the process. That alone would open elections to candidates unable or unwilling to sell themselves to big funders. Moreover, it would nudge candidates back into the business of actual representation—which was, after all, the founders' original intention when Congress was created. That the act made it through the Committee on House Administration in late September was a welcome and somewhat surprising development, but it is a long way from a Rose Garden signing ceremony.
A different tack, suggested to me by AFL-CIO president Richard Trumka, would be to accept that corporate campaign spending, defined as free speech by the Supreme Court, is a lost battle and to focus instead on redefining the meaning of the term "corporation." Trumka suggests that those companies that wish to enjoy all the benefits of the law, such as limited liability and privileged tax status, agree not to engage in political agitation. Those that do choose to play politics will continue to have every right to do so but will be forced to forfeit the protections that incorporation implies. This reform is possible because states determine the rules and regulations of the corporations whose charters are located in those states. The obvious problem is that all fifty states would have to act as one because any single state could tie up the entire system. But it is indicative of innovative thinking about what have appeared to be insurmountable obstacles.
A glaring conflict of interest for members of Congress and their staffs is the tempting prospect of quadrupling their salary with a job after government service if they keep these potential employers happy. President Obama kept his campaign pledge and formally banned most lobbyists from working in his administration. That rule acknowledged the revolving door between government and industry, but it stopped people only on the way into government and only within the executive branch. The rule did nothing to address Congress, where the real horse-trading takes place. After all, the problem is less whether lobbyists come to work in government, where pay is lower, hours longer and financial disclosure forms far more onerous, and more whether people leave government to cash in on their connections (and sometimes even to be paid off for services rendered). When the top staffer for the House Banking Committee jumps ship for Goldman Sachs in the middle of a big fight over the regulation of Goldman itself and can do so without violating any federal regulations, old-fashioned bribery becomes unnecessary.
Until 2007 federal law required government officials to wait just one year before taking jobs lobbying their former colleagues. When Congress extended the break to two years and applied the law to a wider circle of Congressional staff and administration officials, it drove one senator into early retirement. Trent Lott of Mississippi, a former Republican majority leader, quit, Sarah Palin–style, before his term was up just to ensure that he could cash in on his old job without bothering to wait an extra year. The new regulation was a start. Yet the goal cannot simply be to inconvenience the future Trent Lotts of the world. It must be to root out the encouragement the system offers to staffers to sell themselves to the highest bidder.
But again, how? We need a lobbying ban to insulate our elected officials and their top staffers from the temptation to sell themselves while doing the people's business and for a few years afterward. In business terms, ex-officials and their staffs need to be forced to protect their trade secrets and lay down robust noncompete clauses. A strong ban on employment with firms doing business under legislation covered by the elected officials and relevant staffers would need to run from eight to twelve years. In 2010 Senator Michael Bennet of Colorado introduced the Closing the Revolving Door Act, which would extend the ban on Congressional staff to six years and proposes a lifetime ban on members of Congress becoming lobbyists after they retire. Passage of this bill, which was referred to the Committee on Homeland Security and Governmental Affairs and at this writing remains stuck there, would restore some independence to government staffers and lawmakers while reducing the stack of chips corporate lobbyists bring to the legislative poker table. But given the turnover in government, even a break that spanned two or three presidential terms and five to seven Congressional sessions would ensure that public servants who turn to lobbying later in life would be trading on general knowledge of government, which is legitimate, as opposed to exploiting their personal relationships and inside information for the benefit of those who can afford to pay for it.
Voting Rights and Elections
Another item on the long-term reform agenda needs to be the question of democracy itself. American politics, with its anemic participation rates, invites too much influence in our elections for too many undemocratic forces. As the American Enterprise Institute's Norman Ornstein has noted, to counter the oversized power of such minority interests, "in Australia, where failure to show up at the polls (you can vote for 'none of the above') leads to a $15 fine, attendance is over 95 percent—and politicians cater less to consultants and the extremes (since both bases turn out in equal proportions) and more to the small number of persuadable voters who are not swayed by outrageous rhetoric." A few right-wing libertarians might cry "totalitarianism," but most Americans would likely come to see mandatory voting as a reasonable way to ensure that everybody gets a say. After all, nobody's being forced to vote "for" anyone, just to affirm their bona fides as small-d democrats, which is an essential component of citizenship.
The short-term problem with mandatory voting, however, lies not in its demands on individuals but in the inability of municipalities to locate and register voters who are legally entitled to vote and identify those who are not. Australia, as it happens, puts most of the onus to register voters on election authorities. Australian election officials gather information from government agencies to identify unregistered eligible voters and mail them the requisite voting materials. In this respect Australia is not unusual; the United States is. For example, according to one survey of sixteen nations and four Canadian provinces, only four place the onus of voter registration entirely on the individual, as the United States does, which helps account for this country's anemic rates of political participation. The same goes for our unwillingness to allow people to vote on a weekend or a holiday, when they are not forced to miss work or to wait on line for hours merely to exercise their constitutional right to pick their leaders. (It is as if some politicians do not want people, particularly hourly wage workers, to be able to vote.)
As a step from here to there, the Brennan Center for Legal Justice has proposed a program to modernize voter registration practices that, if properly implemented, could increase the number of US voters by as many as 65 million. The plan would remove the onus of registration from citizens and place it on state governments, which would relieve election officials of the burden of last-minute registration and remove the need for third-party registration drives. By bringing the registration system into the twenty-first century, the plan would eliminate unnecessary bureaucratic processes, save states money, free precious resources for election officials and simplify the process for voters. It would make such registration automatic and permanent, bringing all eligible unregistered voters onto the rolls and keeping them there if they move. This is particularly important for members of the military and their families, students and, of course, the millions of victims of the foreclosure crisis, many of whom lack a permanent address. Some states have begun to adopt aspects of this program, but making it part of the progressive agenda would likely do wonders for a host of related priorities, particularly given the unrestrained spending by corporations and other interested parties in the wake of Citizens United.
A final item on this agenda for expanded and improved democracy needs to be the extension of the right to vote to ex-felons. Millions of Americans have had their right to vote revoked for periods ranging from the time spent incarcerated to a lifetime. In fourteen states a person can lose the right to vote for life. This is morally indefensible. In the United States the right to vote is not contingent on good behavior any more than it is on race, religion or ethnicity. And the idea that even after one has paid one's proverbial "debt to society," one must continue to pay with one's right to vote makes no moral or political sense. Most of these laws are rooted in the Jim Crow era and were intended to bar minorities from voting; many continue to operate that way, with black and Latino voters, particularly men, discouraged or prevented from voting in numbers well beyond their proportion in the population. What's more, as in the case of Florida in 2000, confusion regarding differing state felony disenfranchisement laws can easily result in eligible voters, sometimes even those with no disqualifying criminal conviction, being purged from the rolls or denied the ability to register to vote or cast their ballots. The provisions of the Democracy Restoration Act, introduced in Congress in July 2009 by Wisconsin Senator Russ Feingold and Michigan Representative John Conyers, would restore voting rights in federal elections to nearly 4 million Americans who have been released from prison and are living in the community, and would ensure that people on probation would not lose their right to vote. As a matter of fairness and strategy, this bill deserves the energetic support of all liberals and progressives.
Throughout our history, a more democratic America has consistently helped create a more progressive America, and these steps taken in support of improving democracy will likely help offset more reactionary developments in our political environment.