The problem at the heart of the Citizens United decision cannot be easily fixed. One difficulty is the absence in the Constitution of provisions for how someone is to become a candidate for elected office, and what means are to be used to garner votes. A new democracy was created, but there was no way designed for ordinary people to get into the act.
The usual way around 1789 was the “old boy network.” In addition to the exclusion of women, blacks, native Americans, slaves, indentured servants, atheists, and other categories, the political arena was limited to those with the connections, resources, and time to participate.
There is nothing in the Constitution about political parties. With their development, there was more opportunity for white male Protestant non-entities to enter politics and have organizational and financial support for election campaigns. Even today, some low-key elected officials (such as the New Hampshire House of Representatives) can depend on party funds for electioneering.
However, it was always useful in becoming a candidate with serious chances of winning to have some other organizational base. Veterans’ organizations, fraternal associations, and League of Women Voters were more democratic than some of the others. Yet even the self-selection and confidence needed makes the field unrepresentative of the general population. Furthermore, success was always largely based on the arts of persuasion. Today this is an exalted science, with expertise profuse for those who can pay. A similar situation existed in classical Athens, so that those advocating democracy did not rely on elections.
Now elections for major offices are almost entirely contested by sponsored candidates. Our political parties are like alliances of feudal barons, each supported by vassals, which may be corporations, interest groups, wealthy patrons, local businesses, or even foreign governments. Those providing support in turn demand and receive protection, often from the ravaging (albeit “invisible”) hands of the free market. Each party’s barons have an interest in their mutual re-election, and thus their major legislative motivation is to sustain everyone’s patronage relations. Party platforms and promises are of minor significance in policy outcomes. Congressional offices and entourages are enlarged versions of the traditional political machine, still flourishing despite the Progressive reforms of the early 20th century.
Corporations of all kinds dominate the political process. Restrictions on for-profit corporations would logically apply also to non-profit ones. Many of the latter are fronts for business, and foundation grants are also derived from past and present corporate profits. Yet, political associations of all types, including those sincerely trying to change the world, are usually corporations. The press today is almost always a corporation, not a “person,” and restricting its political voice is not acceptable even to conservatives.
First amendment freedoms are not dependent on “personhood.” The 14th Amendment applies only to state action and prohibits depriving “persons” of life, liberty or property without due process of law; the 5th Amendment is an equivalent prohibition on the federal government. In contrast, the 1st Amendment states that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In fact many exceptions have been made by law and court decisions, but there has always been an assumption that those activities are protected whether conducted by individuals or associations. For example, in a recent decision the Supreme Court declared that the Boy Scout association had expressive rights (Boy Scouts v. Dale, 2000).
The requirement for Political Action Committees before a corporation, union, or interest group can make a direct contribution to a candidate has hardly stemmed the flow of corporate “speech” in elections. For one thing, dollar limits on bribe amounts do not prevent corporations from having several PACs. For another, direct corporate disbursements are forbidden, yet it is a common practice for executives to be ordered to give, and then receive that figure in a “bonus.”
How then to limit the power of wealth to distort the electoral system? Cynics might say there is no distortion; that is the system. Yet, some mitigations could be tried.
One would be to figure out a way to encourage people representing all groups in our society to become candidates and support them in the very early, pre-primary stages, including subsistence pay if necessary. There could be some test to make sure a person is serious and not simply running for a meal ticket; a revival of political parties including “minor” ones would help in this regard. Currently, the long haul before an election is most easily afforded by the independently wealthy or those who can turn their business over to their partners. Employees who take time off to campaign often lose their jobs, whether elected or not. Usually there is not a single person with a working class background serving in the U.S. Congress.
The campaigns themselves would be publicly funded, including TV time or whatever is necessary to inform voters of the public policy or other relevant positions of the contestants. Image creation, and environmentally-destructive advertising would be minimized. Those elected would need to be constantly monitored by citizens to make sure that they stuck to the script, or had good reasons for departing from it.
Alternatively, elections could be eliminated and representatives chosen by lot, as in the classical Athenian semi-democracy. Selection could start with the voter lists, and an appropriate number selected at random for city and town councils (with enough extra to allow for refusals). All those who served for say, two years on local councils would be eligible for the draw for state legislature, and those with several years of experience at the state level would be in the lottery for national Congress, which might choose and control a President from among them. Such a system would not produce more “uninformed” legislators than the current one, in which policy matters are generally left to staff while the representative concentrates on collecting funds for re-election. Local service is in any case a good education for politicians and their families, as was the case in Athens.
In either case, vast corporate wealth is still likely to dominate policy-making. It would nevertheless be useful as a demonstration of the difficulties in reconciling democracy and capitalism.
JOAN ROELOFS is Professor Emerita of Political Science, Keene State College, New Hampshire. She is the translator of Victor Considerant’s Principles of Socialism (Maisonneuve Press, 2006), and author of Foundations and Public Policy: The Mask of Pluralism (SUNY Press, 2003) and Greening Cities (Apex-Bootstrap Press, 1996).Contact: firstname.lastname@example.org