E Pluribus Paralysis

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and the private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.

Federalist Papers, No. 10

The paralysis gripping our federal government raises questions about the stability of our constitutional order itself. As the passage from the Federalist Papers quoted above makes clear, James Madison was far more concerned about a tyranny of the majority than he was about the tyranny of a minority. Yes, a minority faction may “clog the administration” of government, it may slow things down, but it cannot under republican principles, do any durable harm.

We know better now. Had cooler heads not prevailed – and next time around they might not – the federal government might still be shut down and, worse, in default of its financial obligations. Since it’s never happened before, no one knows the consequences of such a default (nor of a really prolonged shutdown) but it’s safe to assume that it would cause considerable harm. The Constitution forbids it (in Section 4 of the 14th Amendment: “The validity of the public debt of the United States, authorized by law . . . shall not be questioned”), but it appears here almost as an afterthought (the 14th Amendment is best known for granting citizenship to former slaves).

Why did it never occur to the Founders that a determined minority could bring the government lumbering to a halt? Congress has ever held the power of the purse. Divided interests and unruly passions have been with us from the start as well. (Tar and feathers, anyone?) Why didn’t the Founders provide a remedy for the situation we find ourselves in today – a minority faction holding the nation hostage to gain a narrow ideological end?

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

Madison generally despaired of removing the causes of factionalism ([t]he latent causes of faction are sown in the nature of man) and instead focused on controlling its effects. And, famously, his primary means of control was representative (rather than direct) democracy: to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” Would that this were so.

Because elected representatives would necessary be accountable to a variety of interests – and the larger and more diverse the republic, the greater the variety of interests – factious combinations are less to be dreaded.

* * *

How then did we get to this point? It’s complicated; but most political observers see three main causes of our present dysfunction. One is the veritable explosion of media outlets over the past thirty years that segment the electorate and feed each segment a steady diet of filtered and too often biased information. I came across an interesting, and telling, factoid recently. According to the Pew Research Center’s Project for Excellence in Journalism, in 1980, some 52 million Americans – about 30% of the adult population, watched one or more of the three evening network news broadcasts, compared to only 22 million (less than 10% of the population) today.

These “lost viewers” have not all migrated to Fox News and MSNBC, though many have. Rather, the vast majority seem to have simply stopped watching (or reading) the news altogether, opting instead for sports, cooking, shopping and movie channels. They’ve abandoned the civic space in our culture to those with a greater passion for politics and these folks are more divided against each other than the moderates, many of whom have simply tuned out.

As Boston College political philosopher Alan Wolfe and others have pointed out, when the Internet first appeared on the scene, it held out the promise of democratic revitalization. As it evolved, however, the Internet has developed into “a nearly perfect technology for the ideological, take-no-quarters style of debate” that characterizes what Wolfe calls “the new politics of democracy.” Instead of being part of the solution, the Internet is part of the problem.

Coincident with these developments was the inevitable demise of the “Fairness Doctrine.” It seems almost quaint now, but in the heyday of broadcast news (before the advent of cable), the Federal Communications Commission (FCC) required the holders of broadcast licenses to present controversial issues of public importance and to do so in a manner that was, in the FCC’s view, “fair and balanced.” More a complicated set of rules than a doctrine per se, its rationale was that in a democracy it is in the public interest to ensure that viewers (and listeners – the rules actually grew out of the early regulation of the radio industry) are exposed to a diversity of viewpoints. Even if the proliferation of cable television, public-access channels, the Internet and the like hadn’t undercut this rationale, today’s Supreme Court would almost certainly strike down the Fairness Doctrine on First Amendment grounds.

A second major cause of our political dysfunction is the lack of competitive Congressional races due largely to gerrymandering. In the most recent election, for example, President Obama won 52% of the votes cast in Pennsylvania but Republicans won over twice as many House seats (13 to 5). This wasn’t due to ticket-splitting. Rather, district lines in Pennsylvania have been drawn by a partisan legislature to advantage Republicans and disadvantage Democrats. This tactic was repeated with similar results in state after state. As a result, although Democrats won over 1.7 million more votes for the House than Republicans did, they remain the minority.

Uncompetitive races breed voter apathy, which further exacerbates the problem. Voter participation in a typical presidential election runs between 50 and 55 per cent of the voting-age population. As sorry a figure as this is in the “world’s oldest democracy,” turnout in mid-term elections is even worse – on average around 15 percentage points lower. It’s a widely accepted fact of political life that lower turnout favors more extreme outcomes – and these are the races that decide not only who will sit in the House of Representatives but, just as important, which party will control the state legislatures and governorships and thus who will control congressional redistricting. Increasing voter participation, especially in off-year elections, is a crucial element in addressing hyper-partisanship.

Unlike the first cause of political dysfunction cited above, there is a simple fix for gerrymandering which has already been adopted by a handful of states including, most recently and most notably, California – before Washington DC the national symbol of partisan paralysis and government dysfunction. California’s state lawmakers came into office this year representing districts whose lines were drawn by a nonpartisan commission. More radically, this legislature was chosen under a system designed to prod candidates to appeal to a wider ideological swath of the electorate – the top two finishers in a nonpartisan primary ran against each other in the general election regardless of party affiliations. These reforms seem to be working.

A third and for many observers the most significant factor contributing to the dysfunction of our federal government is the corrupting influence of money – from the astronomical costs of running a political campaign to the outsized role played by paid lobbyists and large campaign contributors like the multi-billionaires Sheldon Adelson and the infamous Koch brothers. This is where the deepening economic inequality that characterizes our society today spills over into political inequality. According to a recent report from the Sunlight Foundation, more than a quarter (28 per cent) of the $6 billion (!) spent on the presidential election in 2012 came from 0.1 percent of the American population. These elite donors tend to be ideologically driven and have little in common with average Americans. Some of them, of course, are not even people.

Professional lobbying did not exist at the time of the founding, and even if it did, the Founders could not have imagined the scale of the problem today. They were very concerned about the corrupting influence of “emoluments,” but the petty corruption of a Duke Cunningham or a Jessie Jackson, Jr. is not the issue today. The deeper, systemic problem is what Harvard law professor Lawrence Lessig calls the “economy of influence” and “culture of dependency” that infects our whole democracy (Republic, Lost: How Money Corrupts Congress – and a Plan to Stop It, 2011). Lessig calls for a constitutional convention to address the problem.

The wind may have been taken from the sails of campaign finance reform by the Roberts Court’s decision in Citizens United, but the winds can change. Zephyr Teachout, a legal scholar at Fordham University, has provided a convincing originalist argument for the constitutionality of placing limits on paid lobbying (“Original Intent: How the Founding Fathers Would Clean Up K Street,” Democracy, A Journal of Ideas). Corruption, defined as using public channels to serve private ends, was a paramount concern of the Founders, Teachout explains, and they put a number of structures in place in the constitution to prevent or mitigate the effects of corruption. While these provisions may not provide much in the way of legal weapons against the current structure of dependency, she argues, they do provide a “model of thinking,” a way of trying to protect against the temptations provided by lobbyists and a culture that encourages thinking in terms of self-interest. The Framers’ thinking is important because it did not simply try to pit people’s self interest against each other – Madison’s preferred remedy for both corruption and factionalism – but instead tried to create structures in which “people’s best instincts would flourish.”

But as Madison himself famously pointed out in Federalist No. 51, if men were angels, no government would be necessary. We are not, and it is.

Continue the conversation this Saturday, November 9, at Boston College, where Mass Humanities’ 10th annual symposium (free and open to the public), “E Pluribus Paralysis: Can We Make Our Democracy Work?” will feature nine nationally prominent panelists, moderated by broadcast journalist Jane Clayson. Register today!

Author: David Tebaldi

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