The Traps our Founders Foresaw (that We Fell In)
The Evils of Direct Democracy
Our Lost Republic
Can We Get It Back?
Our Constitution: Not Scripture, an Imperfect Document
Readers of this blog know I am not as starry-eyed about our Constitution as most of us profess to be. (See 1, 2, 3, 4, 5 and 6). As scripture, it has flaws that are becoming self-evident. Apart from the Bill of Rights, which our Founders added only as an afterthought, it is no longer a good blueprint for successful government in the twenty-first century. And even the Bill of Rights has an ambiguous Second Amendment that allowed our Supreme Court to turn us into an armed camp.
The body of our Constitution—its blueprint for our government—has several serious flaws. First and foremost, it gives us no way to remove a failing president short of proving a crime, beyond a reasonable doubt, through an elaborate legal procedure. There is no way to remove a bad leader for simple incompetence, stupidity or bad policy. Most other modern democracies can do so with a simple vote of “no confidence.” They needn’t suffer the distraction of legal mumbo-jumbo that made removing Nixon so difficult and trying to remove Bill Clinton such a farce.
Close on our impeachment process’ heels in dysfunctionality is the Great Compromise. That expedient, perhaps necessary when made, now gives tiny Wyoming the same number of senators as California, with over 65 times the population and more than 50 times the GDP.
But the crowing ignominy is our Senate’s rules. Our filibuster now imposes minority rule on our nation. Any 41% minority in the Senate can block legislation that a 59% majority wants. The minority doesn’t even have to talk itself hoarse any more, but can “just say no.”
The worst rule of all is the “courtesy” rule for Senate holds. Under this rule, any senator, from any state, no matter how small or backward, can put an indefinite hold on any legislation or presidential appointment, for any reason or for no reason, and often secretly and anonymously. This “courtesy” that senators have extended each other has had predictable consequences. It has destroyed representative democracy, promoted gridlock, and led to an epidemic of extortion.
Sen. Shelby’s current 70 holds on presidential appointments are only the tip of the iceberg. The halls of our courts and executive departments are far too empty because of these appointment blocks.
Our Founders were brilliant men and realists. They understood the lure and dangers of unchecked power. But when they gave each House of Congress the power to make its own rules, they failed to foresee the danger. They didn’t stop the Senate from giving its own individual members near-absolute power to subvert democracy and the nation’s welfare for their own and their constituents’ narrow advantage.
Unfortunately, there is no going back now. Once states, districts or pols assume it, they never relinquish power voluntarily. So we are as unlikely to undo our disastrous Senate “hold” rule as we are to undo the Great Compromise, which our Constitution specifically and explicitly perpetuates. Changing the Senate rules takes even more than overcoming a filibuster; it takes a two-thirds vote.
The Evils of Direct Democracy
So did our Founders do anything right? They did indeed, but we have already overthrown their most important contribution.
When Ben Franklin emerged from our concluding constitutional convention, legend says that a woman asked him what kind of government we would have. “A Republic, ma’am,” Franklin famously answered, “if you can keep it.”
When Franklin said “Republic,” he meant a representative democracy. Thomas Jefferson and others had argued for direct democracy, like ancient Greece’s—one in which every citizen participates directly in civic decisions. But the Founders rejected that system as impractical. The chose instead a system in which the people vote for representatives, and the representatives govern.
The reasons for this choice are explained in records of the debates and in the Federalist Papers. They made and still make a lot of sense.
Representatives provide a “buffer” between the people’s passions and desires and the needs of the nation as a whole. The Founders thought that representatives, being fewer in number and wiser in political experience, would compromise and make sensible deals when the people in their masses and passions could not. The Founders also feared the evils of “faction” (i.e., partisanship) and hoped that the wisdom and experience of representatives, acquired over time, would soften if not contain them.
While our Founders were nearly all part-time pols, except when serving as president, they implicitly foresaw the rise of a political class. They hoped that the experience of governing—and of repeatedly compromising to do so—would make representatives wiser, more prudent and more conscious of the whole nation’s welfare than the voters whom they represent.
Our Lost Republic
It takes no more than a moment’s thought to see that all their foresight has gone almost entirely by the boards today. The recent impasse on raising the debt ceiling exemplifies Congress’ difficulty in compromising on any real issue. And as the House Freshmen slavishly follow the extreme demands of their Tea Mobs, pledging fealty to Grover Norquist above their oaths of office, they illustrate dramatically how “representatives” today neither lead nor compromise. They follow.
It was not ever thus. Well into my own adulthood, key members of Congress resolved vital issues in smoke-filled back rooms, in secret, without cameras or news media. One of the greatest leaders of that era was Lyndon Johnson. He twisted congressional arms to pass the Civil Rights Act of 1964, barely two years after popular governor George Wallace (of Alabama, natch!) had, in his inaugural address, proclaimed, “segregation today . . . segregation tomorrow . . . segregation forever.” That was back-room dealing: getting civil-rights laws enacted with massive Southern support at a time of widespread Southern racism!
But those days are long gone. Why? There are many reasons.
Perhaps the most important was the change from party nomination to direct primaries. In the old days (Not so old: I remember them well!), party caucuses chose candidates for important offices—or a short list of nominees for caucus selection. The means were meetings of leaders in more smoke-filled rooms. That was true representative democracy. The hoi palloi, with their prejudices and passions, were excluded.
Inside those smoke-filled rooms, experienced, hardened, capable and quintessentially practical pols evaluated contenders’ chances to advance the party’s and the nation’s welfare. They knew the candidates personally, thorough years of close interaction. So they could evaluate such intangible qualities as mental acuity, knowledge, toughness, flexibility, personal integrity, and diplomacy. They didn’t have to rely, like voters today, on sound bites and lies prepared by political consultants or advertisers to push voters’ buttons.
Those rooms were not only filled with smoke. They were filled with experienced, serious, practical people with serious objectives. These folks would no more pick a candidate for a stand on issues like abortion, gay marriage, or gun control than they would base their decision on what sort of liquor a candidate preferred. People like Sarah Palin, Michelle Bachmann, and the Pauls (Ron and Rand) not only would not have been put forward as candidates. They wouldn’t even have been in the room.
Our direct primaries have taken us a long way down the road to the very thing our Founders rejected: direct democracy. They have opened us up to the worst sort of demagoguery, which excites popular passions but has nothing to do with any real issues. While they may seem more “democratic” in the abstract, direct primaries have realized our Founders’ worst fears of “faction” and thwarted their intention of giving us a representative democracy. In retrospect, they seem a big mistake.
Not only does our direct-primary system thwart the type of Republic that our Founders wanted. Our hungry and mostly yellow news media seek to expose any secret, any flaw, any misstep, and any misstatement, however accidental or deliberately misconstrued. Thus they discourage our pols from private bargaining, even from being human, whether to socialize with the opposition or to speak informally off the record.
The result is a public persona like John Boehner’s, which strives with fanatic zeal to stay “on message,” or one like Mitch McConnell’s, which gives the impression that Versed is his drug of choice. Neither ever says anything that might be construed as spontaneous, or that can’t be encapsulated in bumper-sticker slogans like “job-killing taxes” and “too much debt.”
John Boehner’s public persona is easy to disparage. (See 1, 2, and 3). But he cannot be as bad in person as his public persona. He must have something going for him to have been elected Speaker of the House and to have nearly cut a deal with the President for $4 trillion in debt reduction. But we out here in voterland never get to see that side of Boehner, who must maintain a facade of absolute right-wing orthodoxy in order not to suffer a primary challenge from the right in his own party.
There are, of course, many other reasons for our sad state today besides direct primaries. We have gerrymandered districts that are “safe” for 80% or 90% of the members of Congress, regardless of their party or the party in power. Lacking competition—the lifeblood of any democracy or economy—these districts collapse into solipsistic, hyper-partisan shells, bringing the Founders’ nightmare of “faction” to life.
And our media not only magnify every slight misstep and misspeaking. They also seek out and magnify every possible conflict, no matter how trivial, in their quest to sell “news.” Thus our media and our demagogues become mutually reinforcing handmaidens to our national apocalypse.
Can We Get It Back?
Can we go back to the better days of smoke-filled rooms? I don’t think so. You can’t take back a constitutional promise to give each state two senators forever. You can’t take back a rule permitting Senate holds, because it magnifies each senator’s power. You would need to find 67 senators wise and strong enough to relinquish their power for the good of the nation, just as George Washington refused a third term. Good luck with that today!
Just so, you can’t take back direct primaries because: (1) they seem more “democratic;” (2) we’re used to them now; (3) whole industries of media, pundits, consultants and analysts have attached themselves to direct primaries like barnacles; and (4) voters cannot sustain interest in anything “procedural.”
So if we can’t go back, can we move forward?
I can see at least three ways. First and foremost is giving the public accurate information. A few days ago, when the President made his television plea to avoid default and Boehner responded, people listened. What the principals had to say suddenly became more important than the talking heads’ blather and the incessant drivel from our multiple partisan echo chambers.
We need more of that.
We need more communication, not less. Once a week, the President and the majority and minority leaders of the House and Senate should have a half-hour or hour-long televised debate, in free form. To suppress demagoguery, they should be required to look forward, not back, and to propose solutions to problems and explain how they would work. A neutral moderator, chosen by mutual consent, should enforce that rule and should be required to correct factual inaccuracies on the spot, or in the next broadcast, to keep the speakers honest.
The second possible solution is to give political-party leaders more say in primaries. We can’t go back to having them name nominees, or even short lists. But maybe we can have them disqualify candidates for extremism or inadequate qualifications, including lack of experience, knowledge, intelligence, flexibility, and diplomacy.
If even that’s too much, maybe party leaders can take a more active role earlier in the nomination process. Maybe they could publicize their recommendations and/or disqualifications early enough and often enough to avoid entrenching unsuitable candidates (and their donors). We did pretty well as a nation when we relied on the experience and cumulative wisdom of our party leaders; we need to think about how we can do that again.
The final thing we might do is change how our media operate. Our media have played a key role in destroying our public life by broadcasting lies and mistakes with glee and zeal because they are “news.” In this sad situation, Murdoch’s Evil Empire is not alone.
We cannot restore any real democracy, let alone rational representative democracy, until we get our media under control. In order to elect representatives wisely, the people must have accurate information, free of distractions. Our First Amendment precludes dictating content, of course, but does it preclude dictating balance?
Until Reagan’s FCC repealed it, we had a “fairness doctrine” for broadcast media. That rule required any medium airing a political attack to air a response from the person attacked, and for free.
That rule had two salubrious effects. First, it forced the same sort of audience that heard the attack to listen to a response. Second, the prospect of having to donate free air time to victims of political attacks made media owners circumspect about making them. If we had that rule in effect today, for example, it might bankrupt Fox. It certainly would make it more “fair and balanced.”
Our Supreme Court upheld the fairness doctrine as consistent with our First Amendment in the Red Lion case. There it relied primarily on two factors. First, the “spectrum scarcity” for broadcast stations limited their number and thus required regulation, lest a few owners monopolize the airways and subject the “truth” to their command. Second, the federal government had controlled and licensed over-the-air broadcasting since its early days, so regulation of fairness seemed unremarkable.
Since that time, new technology and new business models have eliminated spectrum scarcity. They have created a huge cacophony of voices, over cable and the Internet, as well as the open air. At the same time, the privatization of much of our communications infrastructure has obviated the “already regulated” argument. In addition, antipathy to government regulation may have grown to such an extent as to make a new fairness doctrine politically untenable as such.
But government still participates substantially in communications, including satellite monitoring and licensing and aspects of the Internet’s infrastructure. Maybe government can assert its leverage in these backbones as justification for a new “fairness doctrine“ limited to communications that use them. If not, then maybe government can create an “official” channel, with broadcast and cable ubiquity, in which government officials and party leaders can reply, on a regular basis, to attacks and claims made about them. This channel might also have a nonpartisan fact-checker explore to debunk the more extreme claims made on the political trail.
These ideas are just a first crack at the problem. We need much more and deeper thinking about what ought to be done. But think and act we must.
We have already lost our “Republic” as our Founders understood it. It is now a direct democracy masquerading as a representative democracy. So we have fallen prey to precisely the evils of popular passion, demagoguery, and faction that our Founders feared most.
We can’t do much about the flaws in our Constitution: inability to remove a president without a trial for crimes, or a Senate that gives a small minority the power to stop national policy dead in its tracks. We can’t even do much about our horrible Senate rules, which invite each senator to become an extortionist. But we can change the way we select and support candidates for elective office.
With changes in nominating and media customs, perhaps we can find some way to restore some of the representative Republic that our Founders thought they gave us, and that we seem already to have lost. If not, we can watch our nation, our economy and our way of life sunset as others pass us by.