Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

13 August 2011

The Traps our Founders Foresaw (that We Fell In)

Our Constitution: Not Scripture, an Imperfect Document
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.

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  • At Sunday, August 14, 2011 at 4:30:00 AM EDT, Blogger seanseamour said…

    Dear Jay,
    Analogous to Rome I which future political leader will watch the institutions burn for the sake of parochial interests. I see few political leaders with the nation’ interest truly at heart, too many are ready to beat the drum leading the masses down a path of destruction. I fear your proposals will be used, distorted as fodder to democracy; demagoguery is the political modus operandi for a political establishment whose allegiance lies elsewhere.
    Reagan unleashed a plague for which I see no antidote, we have a silent majority wearing the blinds of the workhorse focused to the furrow, learned only of scripture, comforted in that ignorance by “we are the greatest” cri de guerre bantered by every corporal to capo on up. Fundamental to their preoccupation and action is staying the course of that elusive path to the money machine: our Republic has not been lost, it has been bought.
    Some say it started with Viet Nam, others recall Eisenhower’s wise words of precaution, of beware-ance of the defense industrial base. Reagan to unleashed the intellectual force of political subversion, building on a generation a la David Stockman, a crib spoiled generation that has spawned a selfish righteous self-serving culture that feeds an industry of vassals as diversified and divergent as the pundit to the K Street gang.
    Since Reagan parochial economic interests increasingly drive policy while the evil empire spectre spawned a neoconservative fauna to pied piper us into a war of deception in Iraq. Saddam Hussein’s gradual “normalization”, oil patch competitors pre-positioning in a changing geo-political environment, the hawks engineered containment of Iran by planting democracy in Irak. Fallacy we are only beginning to understand, perhaps not enough to avoid a “go it again”. In short everything is about where a buck can be made, the better good better served by the chaos of unbridled capitalism.
    There are other emerging realities that render frantic and often manipulative behaviour. White America will soon be in the minority, the race to the top evermore critical. Corporations become citizens, your Wyoming with disproportionate power and ever more parochial interests, they fiducially bear responsibilities too often incompatible with public welfare. On politico-financial blur, heath care is a fine example where perpetuating a financial sector directly contravenes public interest. National competitiveness from an industry perspective: tongue in cheek “a quarter’ worth”; reality of tomorrow is long term investment, not the growth of already bloated cash positions. The education and health of the national fabric is being neglected by intent for some and weakness for other, the pretext a migration from one form of industrial state to another.
    The sum of all of these policies is the bleeding of the middle class, the preserving an unfair distribution of wealth, growing an underclass unable to access the mainstream. Most advanced democracies have brought backward regions to comparable national norms we see the obverse trend tearing at our national fabric.
    Somewhere I fear a stage is set. My nightmare is the risk of unbridled power in the hands of the irresponsible subservience of the politic. The righteous dialectics of today’s conservatives is reverting to evil empire imagery to discredit the opposition, fair game? Not when the purpose is the dismantling every form of social progress attained since FDR. What is happening in the UK today will sooner or later reverberate from Los Angeles to Chicago, Philadelphia to Miami. So many of us look the other way while listening to the uber alles greatest nation language, most recently “humanity’s best chance” from anther Texas cowboy ready to shoot from the hip a la George Bush the minor, the shadow of the evil empire’ still works.
    What folly will ensue when the nation awakes to its receding world status. How will the ruling, owning, gated community minority protect their worth? It is déjà vue, my fears are too dark to display.

  • At Tuesday, August 16, 2011 at 1:09:00 AM EDT, Blogger seanseamour said…

    Dear Jay looking at the news since your last posting I am wondering if a Perry Bachman ticket will emerge not from the smoke filled rooms but that of the battlefield - The Guardian had an interesting tidbit picked from 50 things you need to know about Rick Perry - Texas Cable News
    "He has never lost an election, including an elementary school contest for "king" of the Paint Creek School Carnival. He secured that win by handing out pennies for votes".
    Corruption in America? As long as the system chops off the heads popping out of the melee, na none of that here.

  • At Friday, August 19, 2011 at 12:46:00 PM EDT, Blogger jay said…

    Dear Sean,

    While I appreciate your comments, I think you ought to proofread them before posting. Your long one below is much more rambling and disjointed than usual. It’s also much darker.

    I agree with much of the substance of what you wrote, but not the tone. Life is always a matter of choices. As an American, you have two: (1) stay here and fight to make things better, or (2) find a better place and emigrate.

    On this blog I’ve not concealed what I might do if I were younger. I would be picking the best place to emigrate and trying to get in, especially if I had a family. I would not want young children to have to suffer through what this country is likely to become in the short term, even if it revives in the longer term.

    But if you stay, you should try to do your best to make things better. That’s why I always look for solutions, not just problems.

    I see five major problems facing us: (1) energy, (2) anti-democratic structure, (3) the corruption and dominance of finance, (4) Murdoch's Evil Empire, and (5) the dumbing down of our population through poor education.

    Of these problems, all but (2) are solvable. We can start investing in alternative energy and its infrastructure any time. Private industry already is. We can use legislation, antitrust law, other law, business influence and economic pressure to downsize and control our over-the-top financial sector (that’s the subject of today’s essay). Murdoch won’t live forever; his son can’t match him; and the best days of cable are over. So Murdoch’s empire likely will wane, just as William Randolph Hearst’s did a century ago. Well-meaning citizens, prosecutors, judges and legislators can help it along to the oblivion it so richly deserves. And there are numerous ways to improve education, although all require sustained effort and some money.

    So the only potentially insuperable problems we have involve our outmoded and rigid Constitution and our Senate rules. It’s possible that we might change the latter—maybe after a Democratic landslide next year. But short of national dissolution, we’ll have to handle the tyranny of backward states by demographic migration and economic pressure.

    As for Perry, I’m hopeful that his brand of cowboy populism won’t sell beyond Texas’ borders. It might in Texas, which has the largest percentage of high-school dropouts of any state. But I don't think educated people on the coasts or in the Midwest will go for it. Nor, I think, will they elect another Texan as president anytime soon, having in mind Lyndon Johnson, Vietnam, Dubya and his mind-boggling stupidity and near-complete destruction of our country.

    I trust that, if Perry wins the nomination, the general election will be his first loss. The presidency is not high school, and our nation (thank God) isn’t Texas.

    So cheer up. There are solutions for most things. They just will take a lot of effort, time, and money. If you don’t emigrate, you ought to consider making an investment of your own (including one in Obama’s campaign next year). After all, it’s your future and (if you have them, now or later) your children’s that are at stake.



  • At Sunday, August 21, 2011 at 9:23:00 PM EDT, Blogger jimvj said…

    The biggest trap the Founders did NOT foresee is the huge role money would end up playing in our elections. Or did they foresee it, and not preclude it in the Constitution?

  • At Monday, August 22, 2011 at 3:13:00 PM EDT, Blogger jay said…

    Dear jimvj,

    Good question, which you almost answered yourself!

    Our Founders weren't afraid of wealth as a factor in government because (contrary to myth) they actually favored wealth and property. In our nation's early days, only white, male property owners could vote. Rightly or wrongly (for their time), the Founders believed that only property owners would have a sufficient stake (and likely sufficient education and reasoning ability) to provide effective self-government.

    Our Founders were self-consciously creating a more effective and just (but not necessarily more equitable) society than Europe's monarchical aristocracies, from which they had fled. So it probably never occurred to them that utterly selfish, short-term thinkers would eventually seize all the levers of power with money.

    But I'm not sure I agree with you that the power of money is most or all of the problem. Probably no constitution, even an unwritten one like Britain's, could protect against fuzzy-thinking jurists equating money with speech.

    As for mistakes in foresight, I think the Founders' biggest was worrying too much about hasty decisions. The result was a Senate that can get nothing done, with rules that allow the likes of Shelby to block seventy appointments of a popularly-elected president. Surely the North, which made the Great Compromise only with great reluctance, would not have given the Senate power to make such anti-democratic rules if it had anticipated that possibility.

    And the Founders had no idea of the pace of life today. When they lived it took several weeks for a horse and rider to travel the length of the country. So what may have seemed "hasty" to them seems perilously slow to us today.

    The bottom line is that our written Constitution (apart from the Bill of Rights) is nowhere near the divinely inspired scripture that most Americans think it. It's a two-century-old document full of difficult compromises and fundamental flaws, including slavery, the Great Compromise, the Senate's abasement of democracy, and removal of incompetents (like Dubya) only through impeachment and trial for criminal misconduct.

    Partly because of our abject and uncritical veneration, it has failed to keep up with the times. As the decades go by, it will surely become a ball and chain and drag us under unless we can change it for the common good under current conditions.




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