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Citizen's Book Club: Why Isn't Our System Working?

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Despair is easy. Diagnosis is harder.

The signs of America's political dysfunction are glaring, but like drivers near a pile-up, we can neither bear to watch nor turn ourselves away.

Congress failing to pass a budget for the third year in a row. Elections decided by million-dollar ad buys. Energy and education bills (and now, farm and cybersecurity bills) dead because Democrats can't get 60 votes in the Senate. Moderates out, Tea Partiers in. Angst, ennui, depression.

Has America always been like this? Or has something in our time gone seriously, uniquely wrong?

In today's session of the book club, we take a clear-eyed look at three of the most commonly cited culprits for America's political mess: corporate money in elections, the Senate filibuster, and the two-party system itself.

Let's see if we can't make some better sense of what our problems really are.

1. The two-party system.

Since the demise of the Whig Party in the 1850s, every president and the vast majority of congressmen has had a "D" or "R" by his or her name. The highest vote percentage for a third-party candidate since then? Exactly a century ago, to former president Teddy Roosevelt and his "Bull Moose" Party (27 percent). Since then, despite the best efforts of Progressives, Dixiecrats, Perot and Nader, the Democrats and Republicans have kept their functional duopoly over America's public life.

The founding fathers imagined a government of independent-minded gentlemen making decisions by consensus, or, alternatively -- as James Madison taught us last week -- dividing power such that the ambitions of any one dodgy politician would be checked and balanced by all the others.

What they surely did not account for was a stalemate of two parties who hate each other so intensely that, on issue after issue, they would rather beat the other side than govern the country.

So how did we get stuck with these Democrats and these Republicans? The answer lies in a 60-year-old book by a Frenchman named Maurice.

Prior to Monsieur Duverger's "Les Partis Politiques" in 1951, most political theorists had treated parties as the unfortunate afterbirth of democracies. Duverger's key insight was that each way of drawing up an election system tends to produce a characteristic number of political parties, a number which stays remarkably stable as long as the same electoral rules apply.

In other words, you may not set out to create a two-party system, but if you draw up your election laws a certain way -- in our case, a system where seats in Congress are given to the winner of each individual race -- that's what you get. Why? Because our election system causes third parties to win far fewer seats than their overall level of support among voters, which in turn creates psychological pressure not to "waste their vote" by supporting them in the future.

Duverger on why America will only have two parties:

So when you're wringing your hands at the partisan mess, or wondering why the Greens or Bloombergites can't get traction, think Duverger's Law.

Can our electoral rules be changed? Of course. Article I, Section 4 of the Constitution gives state legislatures power to choose "the times, places and manner of holding elections for Senators and Representatives," but adds that "Congress may at any time by law make or alter such regulations." Other models -- such as the 'Additional Member System' Scotland chose for its new parliament in 1997 -- have given smaller parties seats in the legislature without leading to the multiparty chaos of Italy or Greece. (A good summary of different election systems can be found here.)

Will some bold state legislature or city council give it a try, as several have with instant runoff voting (as well as the Oscars)? It's a wonky issue, but for a well-organized group of citizens, a potentially powerful one.

2. Corporate money influencing elections.

How did American corporations receive the same legal rights as flesh-and-blood citizens?

The answer lies not in our constitution but in a mysterious Supreme Court headnote written in 1886.

Headnotes are written by a court reporter as a kind of professional convenience to lawyers and judges, and are not technically part of the court's decision. In the case of Santa Clara County v. Southern Pacific Railroad, a tax dispute between a railroad and the state of California, the court reporter was a man named J.C. Bancroft Davis. The substance of the case was decided on uncontroversial grounds, but Davis, who interestingly had enjoyed a previous career as a railroad company president, wrote in his headnote that before arguments, the chief justice had noted that "the court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

The headnote was confirmed as official Court doctrine two years later, and as Justice William O. Douglas wrote in 1949, "the Santa Clara case becomes one of the most momentous of all our decisions... Corporations were now armed with constitutional prerogatives."

These constitutional prerogatives were extended to the electoral arena in Buckley v. Valeo (1976), which upheld post-Watergate restrictions on campaign contributions but also held that spending money to influence elections was protected by the First Amendment. Buckley, in turn, became the linchpin of Citizens United v. Federal Election Commission (2010), which invalidated provisions in the McCain-Feingold law which limited corporate spending on elections.

Justice Anthony Kennedy (for the majority in Citizens United) on why corporate money doesn't corrupt American politics:

So, in a nutshell: Corporations are people, people have the right to free speech, and free speech includes spending unlimited money to influence elections.

(As a sidenote, our fellow nations do not appear to have been overly impressed by this American innovation. Two law professors recently researched and categorized 186 of the world's constitutions from 1946 to the present. How many granted corporations the legal rights of citizens? Zero.)

Neither Buckley nor Citizens United expressly relied on corporate personhood to defend the right to unlimited "political speech," but it's hard not to imagine that somewhere in court reporter heaven, J.C. Bancroft Davis was cheering.

For an alternate view, Prof. Garrett Epps on why unequal resources, not corporate personhood, is the real problem (American Prospect, 4/16/12):

3. The Senate filibuster.

2012 was a triumphant re-election year for President Barack Obama. Having won Congressional majorities in 2008, he enacted not only his signature health reform law, but sweeping legislation to combat climate change, fix immigration, overhaul the transportation system, and radically reform public schools.

Welcome to the alternative universe where the U.S. Senate passes legislation by majority vote.

The universe we inhabit, by contrast, is ruled by the filibuster. Derived from the Dutch 'vrijbuiter,' meaning freebooter or pirate, this rule -- in which final votes on legislation can be delayed indefinitely by a single Senator, unless 60 of his colleagues vote to overrule him -- was once reserved for emergencies, and involved dramatic all-night speakathons. Now it just stops everything.

To illustrate the point, in Obama's first Congress -- the only one in which he is likely enjoy majorities in both houses -- the House enacted bills on renewable energy, veterans' homelessness, children's health, lobbyist disclosure, and 370 other provisions that died in the Senate, a Senate controlled by Democrats. When you watch South Korea lap us on scientific research, or Finland on school reform, or Brazil on renewable energy, or Japan on high-speed transit, and wonder why America can't keep up, the filibuster may be your answer.

But wait, the savvy reader responds, isn't the Senate doing the job the founders intended for it? Isn't the upper house the "saucer that cools the tea," as Washington famously remarked to Jefferson? By allowing each senator more power to influence legislation, and giving him or her the relative buffer a six-year term, the Senate was indeed a compromise meant both to protect the interest of smaller states (e.g., two senators each to Rhode Island and California), and also as a counterweight to the more tempestuous and impulsive House.

Consider this: Between 1840 and 1900, there were 16 Senate filibusters. Between 2009 and 2010, there were more than 130. As members of the old Polish-Lithuanian Commonwealth would attest -- each of whose legislators could shout their "liberum veto" at any time -- elections should have consequences. When should an elected minority should just shut up and let the elected majority get on with it?

At the time of America's founding, seven of the 13 states, representing 27 percent of the population, could command a majority in the Senate. Today, with legislation large and small under constant threat of filibuster, 21 of the 50 states, representing 11 percent of the population, can muster the 41 votes to stop the majority from doing pretty much anything.

With this in mind, consider the following two well-informed and opposing views on the filibuster, which together paint a vivid picture of where this procedural quirk came from and why it has become so hard to change.

Sen. Robert Byrd, to his Senate colleagues, on why the filibuster should not be reformed:

Ezra Klein, on why the filibuster is an unconstitutional mistake:

Partisan politics. Corporate money. Congressional gridlock. Which of these strike you as the real source of our political problems, and which others are worth bringing to light?