“Between the late 1950s and the early 1970s,” writes the historian Alexander Keyssar, “the legal underpinnings of the right to vote were transformed more dramatically than they had been at any earlier point in the nation’s history.”1 One after another the changes came, pushed by the surging black freedom movement and its allies in Washington, and joined by others who were denied fair representation. A perplexed Senator Harry Byrd bemoaned that states’ rights and property rights arguments, once so effective with northern business interests, could no longer derail racial reform. Some thought the Montgomery bus boycott had tipped the scales. Watching the news, over thirteen months, of black men and women wearily walking miles to and from work rather than endure the indignity of the Alabama city’s bus system shook millions of whites out of their complacency. As did the determination and eloquence of the boycott’s leader, the young Reverend Martin Luther King Jr., and the courageous college students who began nonviolent sit-in protests in 1960.2
Congress and the courts did their part as well, pushed by citizens to see with fresh eyes. Civil rights organizations, labor unions, and civic groups had long denounced the poll tax, which charged people a fee to vote. In 1964, the Twenty-Fourth Amendment forever outlawed the use of poll taxes as a precondition for voting in federal elections. Two years later, in 1966, the Supreme Court heard Harper v. Virginia Board of Elections. Wealth or the payment of fees, said Justice William O. Douglas, who had grown up in poverty himself, was “not germane to one’s ability to participate intelligently in the political process. . . . The right to vote,” he ruled, “is too precious, too fundamental to be so burdened or conditioned.”3 It was the end of the poll tax in state elections.
In 1962, in Baker v. Carr and Reynolds v. Sims, the Supreme Court ended the practice by which the states simply ignored census data showing population growth in the more moderate urban and suburban areas in order to give rural conservative districts more than their fair share of representation. The officials did so for a reason: so they could continue to vote down attempts by their more moderate and pragmatic fellow citizens to improve tax-funded services—from roads to schools to public health. Now, the high court ruled, state governments must apportion representation on the principle of “one person, one vote.”4 Other cases and laws followed, on matters from access to public accommodations to prohibition of employment discrimination.
For most of us today, the story of this period is one of righting wrongs long overdue for correction. It’s about basic fairness and equal treatment under the law. As important, what was happening in the South until that time illustrated the probability of absolute power to corrupt absolutely. When one set of rights—those of propertied whites—rarely, if ever, had to give way to any other rights, even when the inequity they inflicted on others (such as tar-paper-covered schools for black youths) far outweighed the damage they inflicted on those with property (slightly higher taxes), a system that started out with strong protections for property rights became, over time, a system where only property rights were protected. Indeed, only white property rights at that.
But for some at the time and since, the story of this period was one of loss, not advancement. What was happening, in their view, in the civil rights era—and, indeed, the New Deal era before it—was that the majority, without the consent of the elite white minority, was taking something they considered intrinsic to the promise of America—the protection of property rights. Those who had amassed the greatest amount of property often believed that they had made the largest contribution to developing the nation, which deepened their feeling of betrayal. Now, to add insult to injury, others—activists and their allies in government—were casting these same figures as society’s villains. Indeed, those whom the propertied considered their social inferiors were refusing to submit to their rule on their terms any longer and instead offering their own ideas about fairer ways of doing things. In this expansion of freedom to others, those being challenged saw, rightly, curbs on their accustomed liberties and power.5 And some set out to take the shine off those who had achieved these victories—to deglorify the social movements that had won them, to recast the motivations of the government officials who rewrote the laws, and to question the value of the changes in society that these victories would produce.
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It was in that spirit that the William Volker Fund, the primary funder of James Buchanan’s center at the University of Virginia, sent him a postdoctoral fellow in September 1958, with the small wrinkle that the individual in question had no doctorate in economics or a plan to earn one. But he had something more important to their shared milieu: the backing of Ludwig von Mises, the grandfather of the cause, for a critical analysis of government bureaucracy on which he was working. His name was Gordon Tullock. A square-jawed original, he had been raised, he would later say, in a “solidly Midwestern conservative” household that “hated Roosevelt.” Tullock was not afraid to speak his mind. For example, he acknowledged that he had “neither taken nor taught an elementary economics course.” But precisely because of that, he believed himself to be “in a completely unbiased position” to determine “that they are taught wrong.”6
Buchanan and Tullock should not have gotten along well with each other. Buchanan was a preternaturally productive scholar: awake at dawn, at his desk soon after, and rarely home again until twelve hours after his departure—“always working,” in the observation of one student turned colleague. By contrast, Tullock, a voluble gadfly who did nothing in a conventional way, “never seem[ed] to be working.” Where Buchanan’s desk was “piled high” with papers “like an avalanche waiting to happen,” Tullock’s was as bare as his trademark smirk. Not to be bothered with writing or typing, the “flighty soul,” as one student depicted the lifelong bachelor, preferred to dictate his publications. He attracted almost no graduate students, for, said one only partly in jest, “there is nothing in his conduct that provides instruction for others.” But the sixty-hour weeks of the one man and the intellectual long jumps of the other strangely made for synergy. Over time, Buchanan and Tullock became each other’s most valued critic. More important, they became inseparable in their shared mission: to expose the foibles of government as the best way to protect the market (and property) from popular interference (the majority).7
“I intend to attack the leviathan state from the inside,” Tullock had earlier told the Volker Fund; he wanted to prove that the very nature of public bureaucracy would prevent government officials from achieving what they claimed they would. Other Americans at the time, from various points on the political spectrum, were also beginning to look askance at the growing bureaucracies of their society, from the critique of stifling corporate culture in the 1955 novel and film The Man in the Gray Flannel Suit to the call for participatory democracy in the 1962 Port Huron Statement of Students for a Democratic Society. What distinguished the Virginia team was its determination to expose government problems alone. Never one for self-doubt, Tullock vowed, “I am certain that I can prove that our present bureaucracies do not perform the tasks that they purport to do.” No wonder the leading libertarian foundation was excited; if he pulled it off, it would be much more devastating than the Chicago case for free markets.8
The book the two men worked on together over the next few years, The Calculus of Consent, was a leap from economics as then practiced. As its subtitle, Logical Foundations of Constitutional Democracy, signaled, it was a work of political theory that barely discussed standard economic questions. Instead, it focused on the political process, arguing that politicians must be understood as rational human beings who served their own self-interests (reelection) above all else. The authors recast notions such as “the common good” and “the general welfare” as smoke screens that blocked from view the way in which individual public officials and those who sought to influence these officials pursued their own gain through government. Study the constitution of any society, Buchanan and Tullock suggested,
and you can identify both the incentives and the constraints that shape the behavior of so-called public servants and their supposedly in-the-public-interest policy outcomes.9
To prove their assertions, they laid out what they considered to be the key question and then went on to answer it the only way it could be answered rationally within their assumptions. Why, they asked, did government spending fail to decline in periods of prosperity, when pump priming was no longer needed?
The only explanation, they argued, was that allocating resources by majority decision-making invited voters to group together as “special interests”—or “pressure groups”—in collective pursuit of “profits” (later called “rent-seeking”) from government programs. In turn, candidates for office felt obligated to appeal to these special interests to achieve their own goal of winning elections, so they promised gains to multiple constituencies.10
Translation: Because the money would not come from the politicians’ own pockets, politicians would continue to distribute the money of third-party taxpayers for self-gain as long as it remained in their interests to do so.
To make matters worse, the system encouraged equally profligate “logrolling.” In order to get the backing of colleagues, elected officials engaged in exchange: saying, in effect, I’ll support your proposals (and grant the money) if you support mine. Because much of this money had to be overseen by bureaucracies, the bureaucrat, too, had an incentive to keep this money flowing, because the more money there was going out, the more important their jobs and the greater the likelihood of their own fiefdoms expanding.11
Here, you might say, is the germ of today’s billionaires’ bid to shackle democracy. The Calculus of Consent claimed to show that simple majority voting thus “tend[ed] to result in overinvestment in the public sector.” The public sector battened, Buchanan and Tullock argued, because powerful coalitions of voters, politicians, and bureaucrats could foist most of the cost onto a minority whom they subjected to “discriminatory taxation”—or onto the next generation, which inherited the deficits. The syndrome not only wronged minority interests, the authors averred, but also held down private capital accumulation and investment and therefore overall economic growth. Their case yielded a sobering conclusion. “There are no effective limits” in the current rules to the resources that might be steered to public coffers, even when those monies would be “more productive if left in the private sector of the economy.”12
Interestingly, these conclusions issued from purely abstract thought experiments, not from any research on political practice. Indeed, even a sympathetic economist soon cited as “the major deficiency” of the Virginia school “the failure to search for empirical tests of the new theories.”13 The lack of proof, however, did not stop Buchanan and Tullock from offering what they considered the only right solution: to stanch the flow of money, change the incentives. Majority rule ought not to be treated as a sacred cow. It was merely one decision-making rule among many possibilities, and rarely ideal. It tended to violate the liberty of the minority, because it yoked some citizens unwillingly to others’ goals. Any collective with the power to enlist the state for its members’ benefit, Buchanan and Tullock insisted, was illegitimate in “a society of free men.” The only truly fair decision-making model to “confine the [political] exploitation of man by man within acceptable limits” was unanimity: give each individual the capacity to veto the schemes of others so that the many could not impose on the few. Only if a measure gained unanimous consent, they argued, could it honestly be depicted as “in the public interest.”14
They gave their new approach a shorter name, “public choice,” to signify that, unlike most economic analysis, theirs focused on nonmarket decision-making—above all, in government. While some could and did use the tools for other ends, for the coauthors, the analysis had a distinct political purpose (even as they originally denied that). It provided the moral vocabulary for a political economy like that which had prevailed in the United States in the late nineteenth century, when property rights were nearly sacrosanct.
The authors made it clear that they preferred the constitutional rules of 1900 rather than 1960—a kind of dog whistle to those who would catch the reference. It was that of the unique period referred to by legal scholars as the era of Lochner and Plessy, two pivotal Supreme Court decisions that ensured extreme economic liberty for corporations and extreme disempowerment for citizens on matters from limits on working hours to civil rights. “The facts of history” showed that once the floodgates opened to a more inclusive democracy, it always led to “a notable expansion in the range and extent of collective activity” in pursuit of what the authors deemed “differential or discriminatory legislation.” By this they meant graduated income taxes that asked more of the wealthy and corporations; protective tariffs for, or investments in, manufacturing; and laws that allowed workers to organize unions. Once those groups were given the ability through the vote to elect officials who would be responsive to their needs, no effort to put in new officeholders, the authors concluded, would make a significant difference. Because the problem was systemic, the only thing that could produce different results was putting “checkreins” on the actors: reviving constitutional constraints. And only the effective curtailment of majority rule would make it possible for such checkreins to be put in place.15
As one-sided as the political decisions of their own era seemed to Buchanan and Tullock, they never acknowledged that the system of rules they favored, the one that struck down labor and market regulations along with civil rights and voting rights protections, was just as one-sided. The power of the most propertied to constrain representative government through the courts not only allowed states to legislate racial segregation while keeping wage-earning Americans from effectively advancing their interests, but also hobbled the growing number of middle-class reformers who hoped to steer between what they often viewed as greed on one side and grabbiness on the other in an era marked by veritable rolling wars between corporations and workers.16
“We more or less explicitly considered our exercise an implicit defense of the Madisonian structure embodied in the United States Constitution,” Buchanan later said.17 But if he believed that, it was not on the basis of close study of Madison. It was true that Madison was eager to protect property rights, but he also aimed to enable lasting majority self-government, with protection for minority interests—but not domination by them. When John C. Calhoun made his case for minority veto power like that which Buchanan and Tullock were advocating, Madison made clear in unequivocal language that he rejected it, saying that to give “such a power, to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.” Yet Buchanan understood that by claiming the imprimatur of Madison, and Jefferson, too, for his research agenda, he would be better able to fight off critics of the radical vision he was advancing.18
A later retrospective in the Cato Institute’s journal more accurately credited the book for offering guidance on “protecting capitalism from government.”19 It might more aptly be depicted as protecting capitalism from democracy.
In a famous speech to the Commonwealth Club, President Franklin Roosevelt had used the new phrase “economic constitutional order” to explain back to Americans what so many of them had been seeking in their organizing efforts. Pointing to the chaos of the Great Depression as the climax of structural changes that were leading to “economic oligarchy,” he argued that in the age of the large corporation, capitalism had shown that it would demolish itself and society unless constitutional reform precluded such “a state of anarchy” by ensuring economic security.20 Buchanan, in stark contrast, argued that representative government had shown that it would destroy capitalism by fleecing the propertied class—unless constitutional reform ensured economic liberty, no matter what most voters wanted.
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He had a front-ro
w seat to ideas about how that might be done, ideas he translated into the terms of Mont Pelerin Society thought. With the schools crisis heading toward its climax in 1958, the Virginia General Assembly had created a new body, the Virginia Commission on Constitutional Government (VCCG), to defend its policies. Unlike similar commissions in Mississippi and elsewhere, the Virginia body had a broader mission than the protection of white supremacy: its main target was the New Deal, viewed as the enabler of all subsequent unrest. More specifically, it aimed to combat “the misinterpretation” of the Constitution “during the administration of Franklin Roosevelt.” In short, the VCCG was taking aim at the entire structure of constitutional understanding on which federal regulation, organized labor’s power, and civil rights protections alike depended.21
The commission spread its message far and wide: that the federal government had been acting illegitimately since at least the 1930s—a school of thought that would later be called “the Constitution in Exile” and associated with Justice Clarence Thomas and others on the arch right. As the VCCG’s chairman of publications, Jack Kilpatrick ensured that the group’s publications reached every state legislator and governor, every member of the U.S. Congress, federal judges, bar associations, business leaders, chambers of commerce, town and law school libraries beyond number, and daily newspapers and national magazines—with, ultimately, two million pamphlets and books that tutored readers in a restrictive understanding of the Constitution.22
Democracy in Chains Page 12