Friday, October 26, 2012

U.S. Democracy Reform: Unattainable Ideal or Attainable Reality?

U.S. Supreme Court Justice Kennedy. Justice Kennedy is infamous for making the Citizens United ruling.
The Foundation for Democratic Advancement examines the prospect for significant federal democracy reform in the United States. Although there is evidence in American civil society through the number of NGOs involved in democracy reform such as Open Secrets and clean candidate initiatives, there is scant evidence of democracy reform initiatives by Republicans and Democrats. Unfortunately, these two parties are the primary brokers of American democracy reform and to what extent. To illustrate, the 2012 Republican and Democratic Party platforms and the Romney and Obama Campaign policies are devoid of actual policies on democracy reform. Within their overall platforms and policies, there is no evidence of significant democracy reform. To put this in context, in the four 2012 presidential debates, democracy/electoral reform was not mentioned once by Romney, Obama, Biden, Ryan, or the media involved. Not a single question; not a single answer.

Based on the FDA's 2012 Electoral Fairness Report on the United States, the American federal electoral system received a 54.5 percent overall near-failing score. The Report shows that the American electoral system is heavily titled to special and minority interests over the interests of Americans as a whole. In addition, the Report shows that the Republican and Democratic parties have a stranglehold on federal political power through, primarily, unfair electoral finance and media processes.

As the current U.S. electoral system stands, significant reform can only come through the Republican and Democrat parties via the U.S. Executive and the U.S Congress. However, it is unclear what would motivate the Republican and Democratic parties to relinquish their hold on American political power by making federal elections fair and competitive multi-partied, and the president and vice-president directly elected by the American electorate? Presently, through gross inequity in electoral finances and media coverage, the American electorate have only two viable choices, and no choices regarding the presidency and vice-presidency. Therefore, any hope for Americans to vote for a third-party in mass is unrealistic under present conditions.

Another option for reform which is discussed below is constitutional amendment, in order to overcome the Citizens United ruling which equates money with free speech. Unfortunately, this approach is fraught with significant hurdles:

From the 2012 FDA Electoral Fairness Report on the United States:

The U.S. Constitution may be amended by two-third vote of both the U.S. Congress and Senate, or two-third of states which call for a convention on proposing amendments to the Constitution, and the amendments are ratified if three-fourths of the state legislatures support the amendments (U.S. Constitution, Article V).

The first approach faces a two-third vote from the U.S Congress and Senate, which as established is uninterested in significant democracy reform. The second approach faces Republicans and Democrats at the state level, and support from three-fourths of state legislatures for any constitutional amendment. As long as the Republicans and/or Democrats are not on board with a significant overhaul of the U.S. federal electoral system, there will be no meaningful change through a constitutional amendment and the U.S. Congress. For example, in 2008, President Obama campaigned on change to the political ways of Washington, but after four years in office he has done very little to change the way Washington politics operate, not to mention the federal electoral system.

What will be the catalyst for necessary American democracy reform? Through the Internet and social media, will a third-party emerge which truly reflects the voice of Americans and builds their trust and faith?

Will Americans reach a breaking point similar to the French, and undergo a revolution and new beginning and direction?

In the meantime, I think the deficiencies in the U.S. federal electoral system will be band-aided over to buy more time for the Republicans and Democrats, and create a false sense of legitimacy.

The commentary below is mis-directed because it assumes implicitly that American electoral finances through Super PACs are the outstanding electoral issue facing Americans. The unlimited contributions to Super PACs and their unlimited expenditures are only some of the major deficiencies in the American system. For example, other deficiencies are no campaign expenditure limits on congressional candidates and privately funded presidential candidates, and no limit on personal contributions by congressional candidates and privately funded presidential candidates.

By Stephen Garvey (FDA Executive Director)


Mr. Edgar points out the obvious negative impact of excessive electoral finances, and that corporations and unions should be banned from electoral finance. However, as discussed above, the constitutional amendment approach appears to be a dead end.

The Only Way to Revive Real Democracy
By Bob Edgar (Source: NY Times)

If we’re serious about restoring government of, by and for the people, we need to get big money out of our elections.

From the Watergate era through the early 2000s, Congress and state legislatures passed campaign finance laws designed to limit the influence of corporations and wealthy donors on elections and public officials. The system was less than perfect, but it has been decimated in recent years by Supreme Court rulings like Citizens United v. F.E.C. that give corporations and unions the same constitutional rights as human beings, and equate spending an unlimited amount of money on politics with free speech.

Correct the court’s error with an amendment that would authorize limits on political money and corporate rights.

The money now flowing into our politics isn’t free speech; it’s paid speech. In this presidential campaign alone, a handful of deep-pocketed supporters of Governor Romney and President Obama are in the process of spending well over $1 billion carpeting the airwaves with mostly negative advertising.

No one invests such sums without expecting a return, and no one should be surprised when this year’s big political investors start collecting favors from the people they helped elect. It’s time to stop this charade. Corporations aren’t people. They don’t vote, get sick or die in wars for our country. The Constitution was written to protect the rights of individuals, not corporations.

We can correct the Supreme Court’s misreading of our Constitution by passing an amendment that authorizes limits on campaign contributions and spending, reins in corporate rights and ensures that all citizens, regardless of wealth, have an opportunity to speak and be heard.

Passing a constitutional amendment is rightly difficult. It requires super-majority support like that evident in a Hart Research poll done last year that found 87 percent of Democrats, 82 percent of independents and 68 percent of Republicans in support of an amendment to overturn Citizens United.

Legislators in nine states and local officials in more than 300 cities already have called for such an amendment. This Election Day, voters in Colorado, Montana, Chicago, San Francisco and dozens of municipalities will vote on ballot measures instructing their members of Congress to work and vote for such an amendment.

Big money has no place in elections, and our democracy should never be for sale. Let’s “amend to mend” the misreading of our Constitution by an overly ideological Supreme Court.

Ms. Youn agrees that a constitutional amendment is an unlikely means for attaining democracy reform. In addition, as she correctly states, a constitutional amendment would likely "pass the buck" by politicians to unlikely constitutional amendment rather than force politicians to deal with the issues themselves through legislation on greater electoral finance transparency, more equatable campaign coverage, and fairer laws for new and small parties.

The Right Goal, the Wrong Approach
By Monica Youn (Source: NY Times)

A proposal to amend the Constitution can function on two levels, the actual -- forcing a change in constitutional law -- or the aspirational -- transforming popular understanding and engagement.

It’s a lot easier for politicians to back an unlikely constitutional amendment than to back reforms to change their own fund-raising .

I have serious doubts that trying to amend the Constitution to overturn Citizens United would work on an actual level, even apart from the obvious problem of amassing the necessary support. An amendment strategy assumes there is a silver bullet that can take care of a particular problem with a simple constitutional proposition, or a set of simple propositions. But even critics of the ruling (myself included), cannot agree on the crux of the problem -- whether it’s corporate personhood, equating money with speech, or the special status of elections in First Amendment law. More fundamentally, the complex regulatory problems of money in politics require flexibility and nuance and resist such encapsulation.

Even if you pick the right target for the silver bullet, you can never underestimate an unwilling Supreme Court’s ability to dodge it through an interpretive evasion. This creates a separate dilemma -- either you draft your amendment narrowly, accepting that resistant judges and private actors will make the most of whatever loopholes remain, or you go broad, creating potentially enormous problems of unintended consequences in the sensitive sphere of expressive freedoms

On the aspirational level, however, a constitutional amendment strategy may be more valuable. Unlike ordinary legislation, an amendment has a unique power to capture the public imagination, catalyzing awareness and engagement. Such a strategy can yield concrete gains whether or not the proposed amendment is adopted. An educated and energized constituency is a lasting resource that can be mobilized to push for other, more readily achievable reforms

We should, however, be suspicious when politicians use the aspirational as political cover to avoid talking about the actual. Even in the post-Citizens United era, there are reforms that are within reach and that would make a difference -- such as greater disclosure, public financing, regulatory reform and a Federal Elections Commission overhaul.

But it’s a lot easier for politicians to sign on to a highly unlikely constitutional amendment than to back reforms that would force changes in their own fund-raising practices. Treating a largely political problem as a purely constitutional problem can be just another way of passing the buck, of blaming the Supreme Court for our own failings.

Mr. Raskin correctly points out that the necessity for American democracy reform, but he overlooks the difficulty of achieving significant democracy reform through constitutional amendment. However, in light of the Citizens United ruling, he may be correct that constitutional amendment is necessary for significant democracy reform.

Venerable Way to Overrule Reactionary Justices
By Jamie Raskin (Source: NY Times)

The state need not permit its own creation to consume it.” -- Justice Byron White

We the people have amended the Constitution many times to repair the damage to democracy inflicted by a reactionary Supreme Court. The 13th, 14th and 15th Amendments after the Civil War dismantled the Dred Scott decision (1857); the 19th Amendment (1920) overturned Minor v. Hapersett (1875), which held that Equal Protection did not protect the right of women to vote; and the 24th Amendment (1964) repudiated Breedlove v. Suttles (1937), which upheld the use of poll taxes to keep poor people from voting.

Today, Citizens United cries out for constitutional correction, because modern democracy requires a wall of separation between the awesome wealth of private corporations and political campaigns for public office.

All constitutional amendments seem impossible until they become inevitable, but this one is essential.

The Roberts court bulldozed this wall which, although in place for decades, was vulnerable because it was written into statute rather than into Constitutional bedrock. When the conservative bloc demolished the wall, and the U.S. Circuit Court of Appeals for the District of Columbia wiped out any limits on what wealthy individuals can give to independent expenditure campaigns, these outbursts of judicial reactivism released a flood of billions of dollars into our politics.

Speaking both legally and politically, corporate political spending can have only one purpose: to earn back higher returns for investors by turning elected officials, the public and the government itself into effective tools of private corporate gain.

By converting every corporate treasury in America into a potential political slush fund, the court has endangered not only the integrity of our political institutions but the fairness and competitiveness of our market economy. Businesses should thrive by virtue of their creativity rather than the volume of their campaign spending and the number of lobbyists they employ. Adam Smith would be just as appalled as Thomas Jefferson or Franklin D. Roosevelt at this state of affairs

A plutocratic corporate state favors huge corporations that have a symbiotic relationship with politicians and government — think of the military-industrial complex, big Pharma, the energy industry. Free-market economists are warning us that incumbent “extractive” industries like these use political power to monopolize the market, crush competition and distort public priorities. They are urging us to “save capitalism from the capitalists.” But, to do so, we first have to save the Constitution from the Supreme Court

All constitutional amendments seem impossible until they become inevitable, but this one is essential. An amendment to empower Congress and the states to reasonably regulate campaign contributions and expenditures will allow us to restore, on firm constitutional ground, the wall of separation between corporations and elections and some semblance of political equality between the rich and everyone else.

It will protect the public’s imperiled interest in campaign finance disclosure and our nearly obliterated interest in building public financing regimes that make publicly financed candidates minimally competitive with candidates bankrolled by big private bucks.

Mr. Abrams focuses on the American First Amendment which entrenches freedom of speech in American society. However, Mr. Abrams and Justice Anthony Kennedy (Citizens United ruling) overlook that freedom of speech can implicitly, if left unchecked, suppress freedom of speech. This fact is the flaw in Mr. Abrams argument and the Citizens United ruling: unlimited freedom of political speech within extremes suppresses/weakens the freedom of speech of the majority, and therefore, the Citizens United ruling harms/weakens freedom of political speech in America. For example, through unlimited contributions to and expenditures by Super PACs and the resulting ads, the political voice of most Americans is diluted and drowned out.

The First Amendment Is Just Fine As Is
By Floyd Abrams (Source: NY Times)

I’ve just returned from a few days in Ohio. Yes, that Ohio, the likely election-deciding state. The Citizens United case, so persistently damned by so many, is at work there. Sometimes a viewer will see four ads in a row urging viewers to vote for or, at least as often, against. Sometimes it’s aggravating, sometimes enlightening. But always, it’s a vindication of the First Amendment.

The core principle that underlies the Supreme Court’s Citizens United ruling is the same one that underlies the First Amendment. As Justice Anthony Kennedy put it in his opinion in the case, “political speech must prevail against laws that would suppress it, whether by design or inadvertence.” And, he said, the First Amendment “has its fullest and most urgent applications to speech uttered during a campaign for political office.”
It would be wrong to amend the Constitution for the first time in a way that would limit speech and freedom.

Well-established principles like these are what led the court in Citizens United to strike down legislation that made it a crime for any corporate or union money to be spent within 60 days of an election on material that appears on television, cable or satellite that endorses or denounces a candidate for federal office. It was not new for the court to apply the First Amendment to speech of corporations; Justice Kennedy cited 25 prior cases (including ones involving the corporate owner of The New York Times) involving just such First Amendment protection. The opinion, as well, made clear that Congress was fully empowered to require disclosure of who made what expenditures and in what amount.

In Citizens United itself, the speech at issue was contained in a documentary prepared by a right-wing group that harshly (and in my view terribly unfairly) criticized then-Senator Hillary Clinton when she seemed likely to be nominated by the Democratic Party for president in 2008. But that’s what the First Amendment exists to protect. The same is true of the advertisements that I saw in Ohio.

Some critics of Citizens United have gone so far as to suggest a constitutional amendment that would bar or limit what individuals could spend of their own money to seek to persuade others to support or oppose. As far back as 1976, the Supreme Court correctly concluded that any such efforts violated the First Amendment since it did not limit corruption or even the appearance of it, but did severely limit speech.

That’s the crux of the matter. Critics of Citizens United believe it is undemocratic. What they ignore is that nothing could be more undemocratic than amending the First Amendment for the first time in our history in a way that would lead to less speech and far less freedom.

Question for Readers:

What will be the catalyst for profound American democracy reform?

2012 FDA Electoral Fairness Report on the United States

Republican Democracy Reform Policies

Democrat Democracy Reform Policies

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