If we change the equality lens, though, and view massive political gerrymandering from the perspective of a democracy-friendly First Amendment, one thing jumps out of the fog of statistics and partisan blather. A successful partisan gerrymander almost always results in the minimization—often the elimination—of contestable legislative elections.7 No savvy incumbent politician designs a district he can lose. No effective partisan gerrymander results in really close races that the party in power can actually lose. The whole purpose of the gerrymander is to rig the outcome of as many elections as possible by careful line drawing, packing your opponents into a few “landslide districts” where they’ll win a few seats with 80 percent of the vote, but drawing the rest of the lines so that your supporters will win in a series of elections with just over the statistically safe registration edge of 55 percent to 45 percent. The measure of a successful gerrymander is its elimination of contestable elections and its assurance of a steady legislative majority for the party in power.
Witness what the Republicans have done in North Carolina. In 2012, the popular vote for House members in North Carolina was 51 percent Democratic to 49 percent Republican. But North Carolina’s House delegation is nine Republicans and four Democrats because the Republican legislature drew district lines that packed the Democratic voters into four landslide districts, allowing Republicans to microconstruct nine noncontestable Republican districts. Not a single contestable election takes place in a closely divided state.
North Carolina isn’t alone. Democrats also polled more than 50 percent of the House votes in Arizona, Michigan, Pennsylvania, and Wisconsin but failed to elect a majority of the House members in those states because of Republican line-drawing artistry. In the seven states most intensively gerrymandered by the Republicans, in 2012 Republicans won the popular votes for the House with just over 50 percent but outelected the Democrats 73–34 with almost no contestable elections. By my calculations, if the gerrymandered lines stay where they are, Democrats would have to poll 58 percent of the national popular vote to win a one-vote majority in the House of Representatives in the 2014 elections.
Democracy is all about contestable elections. Not surprisingly, they’re at the core of Madison’s First Amendment. A genuinely free, contestable election is the defining event toward which each clause of the amendment converges. Contested elections permit citizens exercising free thought, speech, press, association, assembly, and petition to pass effective electoral judgment on the performance of their representatives. It is irrational to argue that every clause receives First Amendment protection on its own, but the point at which they all converge—a contestable election—is left unprotected, twisting slowly in the political wind. When, as in contemporary America, virtually all district lines are carefully drawn by partisan hands so that everyone knows in advance who will win, elections become a sham, rendering the antecedent protections of free thought, speech, press, collective action, and petition meaningless. The resulting governing process does not deserve to be called a democracy and could never be upheld under a First Amendment that recognizes Madison’s music.
It would be easy for a Supreme Court capable of hearing Madison’s music to supplement the equality-driven “one person, one vote” principle with a democracy-driven First Amendment protection of contested elections. The problem of identifying a fair representative baseline disappears. Even a Republican justice should be able to figure out that politicians have done away with contestable House elections in North Carolina.
Of course, given geographical concentrations of voters with similar political preferences (often in cities), genuinely contested elections may not be possible everywhere—unless we adopt proportional representation or experiment with democracy-friendly multimember or at-large districts. But the Supreme Court should be able to apply a First Amendment rule that forbids systematic electoral line-drawing that purposefully eliminates contested legislative elections from the American democratic process. If elections were less predictable, maybe more people would vote. And maybe legislators would make better laws
BREAKING UP THE REPUBLICRAT CARTEL
The Supreme Court took a wrong turn in campaign finance law when it tore the Free Speech Clause from its democracy-centered First Amendment roots and misread it as a flat ban on regulating campaign spending. A narrow majority of the Court has gone even further afield in its misuse of a nontextual sliver of the First Amendment—freedom of association—to impose a Republicrat duopoly that allows major-party political bosses to snuff out intra-party insurgencies and prevent third-party challengers from threatening their hegemony.
As usual, the mistake was to tear a piece of the First Amendment from its democracy-reinforcing context and treat it as a freestanding command. Only this time, the rootless command isn’t even a part of the text. It’s the nontextual protection of freedom of association that was read into the text by Justice Harlan in 1958 in order to reinforce its democratic narrative. Justice Harlan was surely right in recognizing freedom of association as a nontextual First Amendment right. Freedom of association fits all the criteria for a proper application of the equity of the Bill of Rights under Madison’s Ninth Amendment safety net. It is analogous to the textual right of free assembly, harmonious with the rest of the First Amendment’s text, and crucial to the story of the evolution of a democratic idea that is the organizing principle of Madison’s First Amendment. In 1958, protection of the NAACP against hostile attacks by Alabama was an essential democratic way station for the evolution of the luminous political idea that ended American apartheid—a way station that was not adequately protected by the textual protections of speech, press, or physical assembly.
Unfortunately, instead of deploying freedom of association in defense of robust democracy, the Court has used it as a device to frustrate efforts to broaden democracy. For example, the Court has refused to recognize voting and running for office as quintessential exercises of First Amendment political association, leaving both fundamental building blocks of self-government to fend for themselves in the rough and tumble of partisan politics, weakly protected by the Equal Protection Clause. To make matters worse, the Court has twisted associational freedom to treat the nominating procedures of the Republican and Democratic parties as hermetically sealed exercises of like-minded people, as though a small group of ideologically identical neighbors were meeting to choose a spokesman. While the two major parties do differ in philosophy and program, each is hardly a sealed group of like-minded citizens. Rather, as in any complex modern democracy using “first-past-the-post” elections in defined constituencies, the two parties function as competing coalitions of loosely connected interests, open to—indeed, eager for—outsiders who wish to affiliate, however loosely, in an effort to cobble together a winning electoral majority. The Court’s erroneous fixation on the ideological boundaries of the major parties has caused it to block efforts to open their nominating processes to the entire electorate. When California opened them to the whole electorate, voter participation spiked by more than 10 percent, and moderates won a fair share of nominations. After the Court’s majority had explained why letting outsiders help choose the nominees violates party members’ free-association rights, participation in California primaries plummeted, and the extreme ideological wing of each major party retook control of the nominating process. In short, the Court has invoked freedom of association not to broaden democracy, but to turn too many primaries into playgrounds for extremists.
Recognizing a democracy-friendly First Amendment would require the Court to take a second look at the function of big-tent major parties in a mass democracy. Once the two major parties were recognized as vaguely defined, shifting coalitions, the Court would strike down yearlong ideological waiting periods for voting in a major-party primary but uphold efforts to open the nominating processes to the entire electorate.
The Court’s failure to consider the democracy-reinforcing function of freedom of association has also made a shambles of the law gover
ning minor parties. In a complex modern democracy, minor parties rarely elect candidates. By definition, they lack the mass support needed to win an election. But they do play the crucial function of injecting new ideas into the political process, forcing the major parties to react, by either assimilating them into the party platform or urging their rejection by the electorate. Freedom of association, properly understood as reinforcing democracy, could protect minor parties by assuring them inexpensive access to the ballot without depleting the funds needed for the campaign; allowing them to invite disaffected members of the major parties to participate in choosing protest candidates; and, most important, permitting them to cross-endorse major party candidates, allowing the supporters of a minor party to play a role in selecting the winner of an election while expressing support for the minor party’s ideological position.
The robust third-party culture of the nineteenth century rested on ease of ballot access and the ability to cross-endorse. The Supreme Court has wiped out both, leaving a Republicrat cartel that stifles new ideas that might threaten the status quo. A Supreme Court willing and able to hear Madison’s democratic music would use it to break the cartel, not reinforce it.
THE MODERN PETITION CLAUSE: ON SETTING DEMOCRATIC AGENDAS
The Supreme Court has virtually erased the Petition for a Redress of Grievances Clause from the modern First Amendment, insisting that it does no work that is not already done by an imperial Free Speech Clause that has simply swallowed the rest of the First Amendment.8 The emergence of an imperial Free Speech Clause that purports to supplant the separate clauses protecting free exercise, free press, freedom of assembly, and the right to petition is a classic example of how failure to hear Madison’s music distorts First Amendment jurisprudence. If the seven truncated words of the Free Speech Clause do all the heavy lifting in all those areas, why did Madison bother with redundant press, assembly, and petition clauses?
In fact, each clause protects an essential phase of Madison’s democratic narrative. The religion clauses protect the interior spaces of the mind, where an idea develops. Free speech protects its articulation; a free press, its mass dissemination. Freedom of association nurtures the idea’s growth into a political movement, where free assembly takes over, protecting its mass mobilization. The Petition Clause concludes Madison’s narrative, protecting the idea’s introduction into the formal democratic lawmaking process, forcing the legislature to place the issue on its agenda.
The legislative agenda-setting function of the Petition Clause is a watered-down version of an even stronger idea considered and rejected by the Founders that would have permitted constituents to “instruct” legislators to take certain action. That was too much for Madison and his friends in the summer of 1789, but not before a full-dress debate considered and rejected the idea of “instruction.”9 Instead, drawing on British parliamentary history, the Founders compromised on a “petition” mechanism to ensure that the legislature would be confronted by issues of great concern to constituents.
Viewed as the culmination of Madison’s democratic narrative, the Petition Clause plays a crucial structural role, linking a vigorous private democratic culture protected by speech, press, association, and assembly to the formal processes of democratic lawmaking. Unlike the stronger idea of instruction, petition does not require legislators to vote one way or another. But properly understood, the Petition Clause does require the democratic legislature at least to consider issues of great importance to constituents. Although the Petition Clause has fallen on hard times these days, it played a major role in debates over slavery in the pre–Civil War period. Beginning in 1831, Northern abolitionists adopted a British strategy and flooded Congress with petitions seeking legislative action limiting or abolishing slavery. In Britain, the petition process triggered an 1833 vote in the House of Commons abolishing slavery in most of the British Empire. In the United States, however, Congress was dominated by pro-slavery members, who used a series of blocking techniques—“gag rules”—to keep antislavery petitions from being read on the floor of the House. When John Quincy Adams, after serving as our sixth president from 1825 to 1829, was elected to the House in 1830, he became a champion of the petition process, almost starting a riot when he attempted to read a petition from twenty-two slaves seeking freedom. The petition movement crested in 1837 and 1838, when more than 130,000 petitions challenging slavery were lodged with Congress. The proslavery forces responded by enacting a House rule formally excluding the abolitionist petitions, overriding Adams’s argument that the First Amendment required Congress to consider them. That in turn triggered a popular response, sweeping the antislavery Whigs into power for the first time. In 1844, Adams was successful in persuading Congress to abolish the gag rule, leading to intense legislative engagement that culminated in the Missouri Compromise banning slavery in the territories but allowing it to flourish in the South. The ban on slavery in the territories as part of a grand compromise seeking to avoid civil war was declared unconstitutional by the Supreme Court in 1857 in the infamous Dred Scott case, ending efforts to deal with slavery through democratic means and rendering the Civil War inevitable.
Under a Madisonian reading of the First Amendment, once the Petition Clause placed an item on the legislative agenda, Congress would be obliged to confront it. Properly understood, therefore, the clause is much more than just a colony of the imperial Free Speech Clause. Read as an integral part of the first stanza of Madison’s poem, it could loosen the current gridlock in both houses of Congress. The Senate, grossly malapportioned by design, operates under a filibuster rule permitting forty-one senators representing about 11 percent of the population to prevent a vote on the merits of legislation favored by representatives of 89 percent of the population. The House of Representatives currently operates under a self-imposed rule forbidding a vote on any legislation that has not been preapproved by a caucus of the majority party’s members, currently allowing 118 House Republicans, many elected from gerrymandered districts, to prevent the 435-member House from voting on crucial legislation. Properly read, Madison’s Petition Clause might well provide a popular mechanism to force up-and-down votes in both Houses, presenting the electorate with a clear voting record on which to judge their representatives at the next (contestable) election.
A MODEST NONCONSTITUTIONAL PROPOSAL FOR A SINGLE-TIER DEMOCRACY
We don’t have to wait for a fifth Supreme Court vote to do something about our three-tier democracy. We can dance to a version of Madison’s democratic music without the permission of judges. American democracy currently is dominated by the top 1 percent of the economic tree, those who privately fund the electoral process. We could eliminate the first tier tomorrow by publicly funding our elections. It costs money to buy access to the voters. It costs money to organize supporters. It costs money to run a campaign staff. Most of the time, we offload the expense to rich volunteers (individual and corporate) who are only too happy to cover the costs of democracy off the books because in return they get strings to pull like puppeteers. For many in the first tier, political spending is just another investment—with the chance of a massive economic return. Until we acknowledge that the cost of democracy should be an on-the-books expense requiring public funding of the campaign process, the first tier will continue to dominate our politics.
Although the Supreme Court has slammed the door on the most efficient public funding approach—matching funds geared to the amounts raised by privately funded candidates—it has left open at least two approaches. First, we could provide a dollar-for-dollar electoral tax credit up to $250. That would give most people a free $250 to put into the democratic process without a government bureaucracy to collect or distribute the money. Imagine campaigns geared to persuading ordinary people to commit some or all of their tax-subsidized $250 to a candidate who promises to respond to their needs, instead of kowtowing to the 1 percent. Another approach might build on New York City’s public campaign funding program. Since 1988, New York City has of
fered multiple matches of small donations as a form of campaign subsidy, enabling underfunded candidates to raise a significant campaign chest with a small donor base. In return, the candidate must agree to a generous spending cap. It works. In recent years, New York City campaigns have centered on issues, not overblown and expensive media spectacles. Unless his name is Bloomberg, one candidate rarely is able to dominate a campaign by dramatically outspending an opponent. And most important, the winner doesn’t owe anything to moneyed interests.
Tax credits and multiple matches aren’t the only ways to subsidize clean elections. Once we commit ourselves to eliminating electoral control by the first tier of supercitizens, the imagination of a free people will quickly show us the way to yet other techniques for public funding—including subsidized access to mass electronic media at or below market rates. It’d cost some money. But we’d get our democracy back.
The third tier of American democracy is the domain of the poor. Not long ago, poor people didn’t vote because they couldn’t afford the poll tax, because they were illiterate, because they were newcomers, because they didn’t satisfy a property qualification, or because they were the wrong gender, color, or ethnicity. Today, although those formal barriers no longer exist, the folks at the bottom of America’s economic ladder still do not vote in anything like their actual numbers, virtually surrendering their ability to use politics to improve their lot. We could eliminate the third tier entirely by recognizing a civic duty to vote, similar to the duty to serve on juries, register for the draft, go to school, buy health insurance, become vaccinated, pay taxes, wear motorcycle helmets, or cooperate with the census. Australia, among a number of democracies that view voting as a civic duty, boasts voter turnouts of 95 percent. We have not reached 65 percent in a presidential election for more than a hundred years and often fall below 50 percent. A 61 percent turnout was cause for celebration in 2008. Turnout in the crucial 2010 legislative elections barely reached 40 percent. We celebrated another turnout in 2012 that barely topped 60 percent.
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