The Electoral System is Broken, Time for Something Radical – Part I

But first, a historical detour…

Historical Detour

On December 16, 1773, the American patriot Samuel Adams, along with a contingent of the Sons of Liberty, boarded three ships docked in Boston Harbor and destroyed a shipment of tea. Famously, a few of the men were dressed as Mohawk Indians. The 342 chests of tea belonged to the East India Company and were valued at close to £10,000 – which would translate today to more than $15 million.

We all know the fallout: the Boston Tea Party helped move the conflict between the British and the Colonies from a pathway that might have led to accommodation to one that was much likelier to lead to war and independence. As a result, the night has been etched into American mythology. More than two hundred years later, in fact, that act has inspired a new breed of American discontent to don both the moniker and the tricornered hat.

(Samuel Adams, for his part, has a popular beer named after him. And of course, the Boston Tea Party helped to definitively turn the country away from weak tea and towards the patriotic habit of drinking coffee. All in all, everything turned out great.)

Let’s take a moment to ponder the role the media played. To foment revolution, early American partisans had a number of important weapons in their armory. Colonists organized, legislated, established legal precedent, wrote and distributed pamphlets, as well as engaged in calculated and un-calculated acts of violence.

But they were also shameless propagandists, and there might be no better example than an earlier incident from the same restless colonial city: the Boston Massacre. At the time, the city was a powder keg waiting for a spark – just three years earlier the British, hoping to quell insurrection stemming from the imposition of the Stamp Act, sent troops and stationed thousands of them on Boston Common. The plan backfired massively. The evening of March 5, 1770, would be neither the first nor the last time that tensions boiled over.

Depicted as a bloodthirsty slaughter of hapless colonists, the Boston Massacre was in truth a confrontation between a small contingent of armed British soldiers and a much larger belligerent crowd of ice-throwing Bostonians. None other than John Adams, noted patriot and future President, defended the soldiers in court and gained an acquittal for six of eight them. The other two were given reduced sentences.

boston-massacre-11

But for propaganda purposes, it didn’t matter. Paul Revere’s famous engraving of the night captured the story that would stick: the British had fired on an unarmed crowd. Many years later, yours truly spent a week in school studying Crispus Attucks. A man of murky background and mixed ethnicity who might have been an escaped slave, he is taught to many Bostonians as the first casualty of the American Revolution. Now a martyr for freedom, the enigmatic Mr. Attucks went on to become a symbol of the anti-slavery movement – especially in rabidly-abolitionist Boston.

History, we are often told, is written by the victors. Just as often, though, it’s the other way around: those who will win victory are precisely those who can write history as it happens.

The Gyrocopter

It is not hard to imagine the Boston Massacre written up primarily as a story about an unruly mob descending on His Majesty’s troops. Nor is it hard to imagine the Boston Tea Party being a story about the criminal destruction of private property. In fact, that’s exactly how those stories were told in London.

On April 15, Doug Hughes landed a gyrocopter on the Capital lawn. A gyrocopter, as you may have learned since then, is essentially the lovechild of a helicopter and a bicycle. Before doing this, Mr. Hughes gave interviews in which he explained what he was doing, why he was doing it, and the risks he was taking in doing it. To summarize, Mr. Hughes is worried that campaign money is eroding American democracy, and he saw no other way that he, in his own personal capacity, could bring attention to this issue. So he engaged in a public act of civil disobedience to help draw attention to the issue.

At some level, it is hard to dispute that he succeeded – even though Mr. Hughes is reportedly unhappy with much of the coverage. His unlikely flight garnered national attention, which would have been an otherwise unachievable goal for the 61-year-old Florida mailman.

Leonardo_da_Vinci_helicopter

It is not hard to imagine this story covered primarily as an act of personal bravery, undertaken in light of a system that Americans overwhelmingly believe is broken. Of course, that’s not what’s happened. Instead, the media has largely reacted either by confabulating a security threat and strongly hinting that the postman should have been shot out of the air, or by being thoroughly amused at the joy of learning a new word. Especially one so apparently entertaining as ‘gyrocopter’.

On all fronts, the talking heads seem to agree on this: Mr. Hughes’ act was thoroughly futile. In fact, the dominant narrative is that any effort to get money out of politics is futile, so futile that it isn’t even worth attempting. And as that narrative takes hold, you can see history written before you. As Sun Tzu observed, most battles are won before they are fought.

The Road to Reform is Riddled with Roadblocks

Pessimism about campaign finance reform is well-placed. Essentially, it boils down to three factors. First, the Supreme Court dismantled the legal underpinnings of most limits on campaign spending in Citizens United. The story on the street is that the Court erred in its legal reasoning by upholding the principles that money equals free speech and that corporations enjoy legal personhood. In truth, both of those principles are bedrock requirements of American society. The Court, instead, erred in fact: they found that spending by ‘independent’ actors could not be corrupting, which was tragically naive regarding what constitutes ‘independence’ in the political arena. Less appreciated, the Court has also, over time, so constrained the legal test for corruption so as to render it essentially meaningless.

Second, any effort to overhaul the electoral system faces an insurmountable conflict of interest: you cannot ask career elected officials to radically transform the system that put them in power. Any meaningful effort to reform the way things are done will die the death of a thousand cuts, with every establishment actor carving out his or her special protected area until nothing is regulated – except for maybe the ability of new entrants to raise money.

You can already see this sort of hypocritical doublespeak in some of the suggestions that have been put forward. Harry Reid, for example, has been particularly vocal about the ‘Disclose Act’, a favorite focus of Democrats that would help bring transparency to campaign spending. On its own merits, the Disclose Act is a good idea, but Democrats are disingenuous in arguing that it would make much of a difference. The main benefits are that they can use the bill as an issue against the Republicans, who oppose it because they think their donors would be more uneasy about giving money publicly, and that if it passes they can use the identity of Republican donors in campaign ads. There’s no reason to think people will actually give less money.

Chris Christie, on the other hand, has at least been more forthright in his suggestion: since there’s all this money sloshing around anyway, Christie argues that we should just lift the limits on donating directly to a campaign. If the money is going to be spent anyway, better to let the candidates control it directly – which is certainly preferable for politicians, but does absolutely nothing if your concern is the corrupting influence of money in politics.

The last roadblock is at the same time the most subtle and the most serious: money is corrupting because it represents power. People with money have a lot of both, and not only as a function of each other. We can try to level the playing field in the electoral arena as much as possible, but in the public square it is impossible for all men and women to stand as equals. The powerful will always be the powerful, and the less powerful less so. In other words, no electoral engineering will ever be able to correct for the inequality in society.

But that doesn’t mean we can’t try, and it doesn’t mean we can’t make things better.

The Nuclear Option

There is no disputing that the electoral process is broken – and there can be no real argument that the way in which we finance elections is bad for the country. Even people who think that a commitment to free association and free speech means that private organizations should be allowed to spend an unlimited amount of money on campaign ads, must find it objectionable that Congresspeople spend most of their time fundraising. On average, it takes over a million dollars to win a House Seat, and over six million to win a Senate seat.

(c) Jericho via Wikipedia Commons

(c) Jericho via Wikipedia Commons

Presidential campaigns now directly raise over $1 billion – the last Presidential election saw more than $7 billion spent.

You can’t raise that kind of money $20 at a time. Lindsey Graham, the Republican Senator from South Carolina, recently put his concerns this way:

Right now, I need about $15 million to be competitive on the campaign side.  That is a lot of getting on the phone, and calling, and $2,700 events, and a lot of just fundraising. But one person who doesn’t like me can write a check to wipe all that out. What I worry about is that we are turning campaigns over to about 100 people in this country, and they are going to be able to advocate their cause at the expense of your cause.

More and more, the support that matters is the support of wealthy private donors. Rather than counteracting social inequality at the ballot box, our electoral system actually amplifies it.

Things have gotten so bad, that many on the left are now calling for the nuclear option: a Constitutional amendment to overturn Citizens United. But this is folly for three reasons. First, an amendment that tries to undo Citizens United threatens to introduce language into the Constitution, that for the first time would be designed to impede free speech. That’s a dangerous step, and anyone who says that they are confident that they can write language that constraints that danger hasn’t followed our history of Constitutional interpretation.

Second, our electoral system was broken before Citizens United. That case garnered a tremendous amount of interest and unleashed a tidal wave of money, but it has also deluded people into thinking that it actually caused the problem of money in politics. It didn’t – and you don’t amend the Constitution to marginally improve a single Court ruling.

Third, it can’t happen. The bar for passing a Constitutional amendment is exceptionally high: you need a two-thirds vote in each chamber of Congress and approval from three-fourths of the states. If the reason for pessimism on campaign finance reform is that politicians can’t be trusted to fix it, then a supermajority of politicians certainly can’t be trusted to fix it either.

Any politicians who propose a Constitutional amendment to fix the problem of campaign finance, like Hillary Clinton recently did, are peddling fantasy and they know it.

But there is another way. It has never been tried, it has never been tested, and that’s a large part of the appeal. What Washington needs is shock therapy – a prospect so terrifying that politicians would have no choice but to act decisively. In the Capitol, the only source of such terror is voters. But the problem with electoral movements is this: since legislative power remains with elected officials, popular discontent is met with promises of change before elections and more of the same after elections. Voters repeat their complaints, and politicians repeat their promises, and very little changes.

Often, this is precisely because of the problem of money in politics: voters are fickle and have day jobs, while donors are persistent and have lobbyists. But on electoral issues, politicians are even less likely to be bound by campaign promises because they have an even stronger motivation than money: self-preservation. Simply put, all candidates will tell you publicly that they’ll work to get money out of elections, then they’ll work privately to make sure nothing changes.

Voters need to find a way to scare politicians into doing the right thing, but the ballot box won’t work. So, what’s left? The colonists in Boston had one idea, Mr. Hughes had another.

Here’s mine: call a Constitutional Convention. Next week, I’ll explain how that might work, why it’s a crazy idea, and why that means it might actually have a shot at making things better.

Follow Pedro on Twitter @IamPedroA.

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