Two of our very own board members, Sara Murphy and Tony Carr, have published thought-provoking opinion pieces in the Harvard Law Record, reproduced below.  Fellow Rootstrikers, please let us know if you have any blog or print pieces you would like to see featured on this site!

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A COMMON SENSE TAKE ON MONEY AND POLITICS
By Sara Murphy
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From the Print Edition of the HL Record / Opinion / October 7, 2013

It is time for us to sit down for a bit of self-reflection. The question we need to ask – indeed, it is our duty to ask it – is what it means to be a democracy in the 21st century. What does it mean to have a government dependent upon the people? What is happening to the principles and values that we, as Americans, hold dear?

You don’t have to look far to see how democracy in America is starting to unravel. Congress is dysfunctional; its efforts to legislate are stymied by the tyranny of a minority that is unwilling to compromise. The Republican Party has morphed into an unsteady coalition, leaving the Democratic Party with a less-than-reliable negotiating partner that insists on spending much of its time passing bills to defund the Affordable Care Act (41, at the last count). Meanwhile, the Democrats are busy pointing fingers and holding press conferences.

If you head north of Capitol Hill, you’ll find evidence of more undemocratic behavior. Interest groups dominate the political foreground, distributing money to those representatives whom they believe will further their interests and threatening the re-election of representatives who dare to tread on their toes. Lobby firms are eager to apportion bigger salaries to individuals with political connections in the hopes of using those connections to promote and defend their interests. This distorts the income incentives inside the Beltway, encouraging Congressional staffers to leave their positions in favor of better paying jobs on K Street.

Many of the problems associated with the corruption in Washington can be attributed to our electoral laws, which subvert democratic principles by preventing ordinary citizens from having an equal say in their representation. The aggregate amount that an individual can spend in the course of each election cycle is a more than twice that of the median income. It is absurd to think that the average person would spend their entire income supporting a political party, figure, or cause in each two-year cycle. The cap almost exclusively affects those who have incomes significantly above the median. In practice, this means that those with the highest disposable incomes are the most capable of influencing elections. In 2012 only 0.4% of the population spent over $200 on elections, and a mere 0.08% of the population donated over $2,500 (OpenSecrets.org). The wealthier you are, the more you are able to influence the outcomes of elections. The constitutionality of the cap itself is being challenged in McCutcheon v. Federal Election Commission, which will be heard by the Supreme Court this month.

So, reader, what does it mean to be a democracy? In writing the Declaration of Independence, did Thomas Jefferson envision a country corrupted by the influence of money and power when he wrote of a government “instituted among Men, deriving [its] just powers from the consent of the governed?” Would he have approved of the undue influence exerted by the K street lobbyists? Could he have imagined that our political parties would become so polarized that Congress could not pass a spending bill to keep the government from shutting down?

The Declaration of Independence states that it is our right as Americans to “alter or abolish” the government when it strays from our fundamental democratic principles. Although I do not think abolishing the government is an appropriate (or desirable) solution, it is clear that we must act. As members of an intellectual community, it is our prerogative to raise awareness about the problem we face and to explore bold and creative solutions. We cannot hope to stop the corrupting influence of money in the political system unless we band together and demand a change of course. Each one of us can make a difference. We are the leaders, the doers, and the thinkers of our next generation.

If we don’t fight to save our democracy, who will?

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THE URGENT NEED FOR ELECTORAL REFORM
By Tony Carr

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From the Print Edition of the HL Record / Opinion / February 20, 2014

America exists because a group of visionary rabble-rousers realized they were without representation in the halls of government and demanded change. They rejected the notion that society functioned best with a common, unlearned mass governed by anointed nobility. They saw the virtue of educated citizens representing themselves.  This is the most fundamental idea of our republic.

All these years later, it’s distressing to think about how much we’ve strayed from that vision.  While we retain much of the promise our founders saw in us, the government they created on our behalf is in manifest disrepair.  The particular reasons for concern are interesting, but they all point to the same symptom: a government no longer faithfully acting on behalf of the people.  

Members of Congress are spending half or more of their time raising money for elections, and getting the vast majority of that money from a tiny group of donors comprising less than one twentieth of a percent of the population. In other words, our elected representatives are dependent not on the people as a whole — in the way envisioned by James Madison — but on uber-donors pursuing initiatives that are almost always inconsistent with the broader interests of society.

This was the message of John McCain in 1999.  He railed against the influence of corporations and special interests in elections.  He saw a threat to democracy from both the left and the right — a threat that sought to win persistent control of the political and legislative agenda by purchasing office and then using official power to rig the electoral process and gain a permanent seat at the head of the table. 

Like many Americans, I was captivated by McCain’s message.  I felt something had changed in the mid-1990s, and our politics had grown more bitter and divisive than before.  It seemed that big media and big money were making a sport out of this divisiveness, creating a new kind of gladiatorial spectacle.  Some of us saw the perverse nature of this; as a society, we had taken to perversely cheering at the burning down of our political structures, with civility as the first casualty.  McCain was the first national politician to identify this trouble, and it seemed he was interested not only in addressing the system, but in freeing himself from an obligation to participate in it. If successful, he could ignore fundraising and talk straight.  This would make him a transcendent and potentially transformational leader. 

McCain seemed to grasp a bundle of concepts both simple and foundational — something at the heart of the insidious defects that have crept into American government: if money equals speech, more money equals more speech (and less money equals less speech).  Further, since political speech equals speech, it follows naturally that more money equals more political speech and less money equals less political speech.  Moreover, because politics is a human endeavor subject to human limitations, there’s only so much political speech to be had.  When human limits of sending, receiving, transmitting, and absorbing are encountered, available speech has run out and no more voices will be heard. This means that with enough money, one constituency can block the speech of another, all the while claiming the mantle of free speech itself. McCain built his 2000 campaign around this idea, and the fact it didn’t work doesn’t make the idea any less accurate or important.  But to understand why it didn’t work, it’s helpful to visit upon the role of establishment politics, the force that thwarted McCain in 2000.

By their nature, establishments are entrenched. They are resistant to external influence.  They are especially defiant of attempts at making them change whatever has made them successful.  The modern democrat and republican parties are establishments.  They’ve become successful by raising money and spending it on the formulation of political narratives.  They’ve determined that the more money they raise and spend, the more successful they’ll be at getting their candidates elected.  The more their candidates are elected, the more their power is aggregated, making it increasingly easy for them to frame and structure the political process to serve their ideological or rational ends.

This has had a noticeably negative impact on our electoral and political processes.  Elections have become focused on fundraising, and politics has become focused on servicing the interests of those whose donations can buy them time on the calendar of the person they help elect.  It’s not that every elected representative is aloof or uncaring as to the concerns of rank and file citizens (though some certainly qualify).  It’s that there is only so much time and focus for each representative to expend.  This means prioritization determines how a representative will govern, and right now, raising money is priority number one.

Efforts to raise money and honor donors encroach on time that should be spent on voter concerns. Lengthier election cycles and constant media scrutiny, combined with the influence of money, place representatives in constant campaign mode, which is different from and in competition with governance mode.  Campaign mode is about narratives, perceptions, and competition with opponents.  Governance mode is about communicating with constituents, analyzing proposals, drafting legislation, and building consensus.  As governance mode has increasingly been pushed aside by campaign mode, citizens have noticed their representation is degraded, to the extent any representation is noticeable at all.  This is no doubt what has fostered historically low congressional approval ratings.

But sadly, this is not a surprise.  For reasons we’ve already discussed, it’s a perfectly predictable outcome.

If the political parties are establishments resistant to changing what has made them successful, and if they’ve become successful by raising huge sums of money, and if more money equals more political speech, it follows that three discouraging things are true.

First, campaign mode will continue to grow until governance mode is suffocated, leaving us without a functioning government.   Second, politicians will never self-reform the system by which elections are funded.  A few of them — as McCain did — might claim they will, and a few of those might earnestly mean it, but the reality of partisan politics means there will never be enough votes to get it done.  Finally, unless reform happens, those with more money will eventually buy up all political speech, leaving those with less money lacking any influence over elected representatives.  This will leave the people unable to restore governance, permanently orphaning the nation from its most fundamental founding principle.  The first signs are already visible.  We’re fighting wars no one wants, everyday citizens are being subjected to the tools of professional espionage on home soil, and we have taxation, spending, and entitlement programs all agree are in need of reform.  Yet our representatives are not doing anything meaningful about any of this.  They are not heeding our will.  Without electoral reform, they have no incentive to do so.

So reform it must be.  But how?  Several ideas have been proposed.  Perhaps a Constitutional Amendment limiting the role of money in elections.  Maybe a statute providing for the public funding of elections and giving every citizen the same amount of money to contribute, thereby guaranteeing the same amount of speech.  Perhaps other proposals that place limits on the use of money in creating a political narrative, thereby indirectly creating a disincentive to fundraising.  Any or all of these would be better than the current system.  While I’m partial to public funding because I think it strikes the right balance between free speech and clean elections, I support all of these proposals.  At this point, it’s more important to build pressure behind the idea of reform than get into a secondary debate about how.

It’s most important that reform not be thought about as a vague or far-off ideal.  It is urgently needed because our system is corrupt.  Not in the sense that politicians are taking bribes or engaging in quid pro quo. But corrupt in the sense that the Congress — specifically the House of Representatives — is no longer sufficiently dependent upon the people, and thus does not faithfully act according to their interests and motivations.  This is one area where our founders were clear and where their intent ought to be heeded; they wanted the House to be dependent upon the people as a whole, not a narrow and unrepresentative subgroup.

Now, don’t take this argument as a critique of the design of our system. It is ingenious and entitled to reverence.  But precisely because it allows itself to grow and change over time, imperfections are bound to creep in, and the response envisioned by the founders is for its citizens owners to adapt it as necessary to maintain a thriving republic.  This is where we, as citizens, play a vital role.  The founders relied on the idea of an invested and civically active citizenry to spot political maladies and actively work against them.  They wanted common people to hold their government accountable.  To validate the trust they placed in us, we must actively preserve our role.  Whether it’s as simple as sending your representative an email or participating in movements such as MayDay PAC, Rootstrikers, or Represent.Us, the time for you to get involved is now.

I’ve been asked why I care about this.  Or more specifically, why this and not other things that might seem more urgent or important.  The answer I give is that nothing is more urgent or important to our national future than fixing this issue.  This is a domestic enemy, something I swore a lifetime oath to defend against. History has been unkind to republics that ignore fundamental diseases like this one, so I consider pursuing this issue a matter of public service.

But there are also two very personal reasons for my commitment to this.  The first is my perspective as a veteran.  I’ve been to places in the world where corruption has corroded governance and civic virtue has failed to step in.  Such places devolve into violence, chaos, and unspeakable suffering.  People die horrible deaths as these societies come apart, and others perish in the struggles to restore order or to secure them as they regain civil footing.  Having lost friends in such struggles, it’s important to me that we protect the values my friends fought to export and uphold.  The current political morass in Washington can’t be what they died for.  The petty, self-interested narrowness of our current system is beneath their honor.  We must restore their honor by restoring our system.

But I’m also concerned as an ordinary citizen. My view is that we have a duty to hand this country to our children in better shape than we found it.  We have no right to behave selfishly or myopically.  This country doesn’t belong to us permanently.  We’re temporary custodians.  Those who follow us are entitled to enjoy the fruits of American liberty, just as that right fell to us.  We’re abusing that right and unjustly diminishing something we will bequeath to our children.  We should care about that. If we’re to give them a republic to which they can proudly claim membership, we must arrest our inexorable drift toward a political unraveling.

America exists because a group of visionary rabble-rousers realized they were without representation in the halls of government and demanded change. The rabble-rousing now falls to us.  We must once again realize we’re without representation, and demand it be restored.

Still not convinced?  Listen to the brilliant speech linked below, delivered by brilliant legal activist, scholar, and reformer Larry Lessig.  His vivid rendition of this problem is entertaining and alarming all at once, and provides a stirring call to action.