The Great Democracy

by Ganesh Sitaraman

  Part of the problem is electoral. The basic act of voting turns out to be pretty difficult for many people. Election days are Tuesdays, making it harder for working people to get to the polls. Voter ID laws, deliberate efforts to purge the voter rolls and suppress the vote, and registration requirements add to the challenge. And if you do make it to vote, in many places, there’s a decent chance that your district has been gerrymandered to help one party or the other preserve its power, making it less likely that the election was competitive.

  On top of all that, the wealthiest people—who systemically have different preferences than the majority of Americans—tend to vote more, volunteer on campaigns more, contact their members of Congress more, and run for office themselves more. Their higher rates of participation combine with our campaign finance system to skew politics even further. Many people decry money in politics, and for good reason. Some members of Congress are transparent that access to them is based on money. For example, Mick Mulvaney, the simultaneous director of the Office of Management and Budget and acting White House chief of staff under President Trump, said explicitly that when he was a Republican congressman from South Carolina, the only lobbyists he would meet with were the ones who gave him money. Most members, however, are not so brazen. Rather, they are unconsciously shaped by their funding sources. Elected officials can spend up to four hours a day on the phone raising money, and that means listening to rich donors opine about the issues of the day. Of course, what elected officials aren’t doing is actually learning about legislative proposals and coming to their own judgments.4

  Pressed for time, members of Congress turn to lobbyists. Lobbying isn’t fair and balanced. In a study of tens of thousands of lobbying organizations in Washington over a thirty-year period, political scientists have shown that lobbying groups disproportionately represent businesses and wealthy people. Less than 1 percent of organizations represent the poor. Although blue-collar workers are 24 percent of the population, they are only 1 percent of economic organizations in Washington. White-collar workers make up less than 10 percent of the public, but they are represented by almost 74 percent of economic organizations in DC. To take just one area, the financial, insurance, and real estate sectors employed 2,397 lobbyists in 2017. That’s more than four lobbyists for every member of Congress. The dollar amounts are also staggering. In 2018, Google spent $21 million on lobbying; Amazon spent $14.2 million, and Facebook spent almost $13 million. Lobbyists don’t just advocate for policies; they also educate members of Congress and their overworked staffs. They even draft legislation to help members. This work pays off: one study finds that for every dollar a firm spends on lobbying, it gets between six and twenty dollars in tax breaks.5

  With such a lucrative lobbying industry, members of Congress and their staffs have a powerful financial motive to leave public service and join the influence-peddling industry. For example, after the Republican Congress and Trump administration pushed through the 2017 tax bill, many staffers who worked on the long, complicated legislation cashed out. The Senate Finance Committee’s head tax staff member joined the tax group at accounting firm PwC, an aide to Senate majority leader Mitch McConnell joined lobbying and law firm Akin Gump, and other tax staffers joined lobbying firms, corporate lobbying shops, and trade associations. Politico said the authors of the bill were “leaving the Hill in droves.” Of course, with all these departures, members of Congress are left with junior staff with less expertise, which in turn means that they’ll have to rely even more on lobbyists to help them.6

  But the problem goes further than Congress. The executive branch is also skewed toward serving the interests of the wealthy and powerful. Instead of being the home of expert administrators or even a “team of rivals” from different political perspectives, federal agencies have become a weigh station for industry insiders and lobbyists, who roll back and forth from government to the private sector. Consider the fact that two of the last four Democratic secretaries of the treasury worked for Citigroup either before or after their government service, and the other two worked elsewhere in finance. Or that despite President Trump’s desire to drain the swamp, his administration has hired at least 187 lobbyists—including slotting lobbyists in jobs where they are responsible for shaping the regulations that impact their former industries. This revolving door between government and industry is a problem in both directions. People coming in from industry might be overly sympathetic to industry arguments and might shy away from enforcing the law against their former friends and colleagues. People planning a future career in industry might go easy on a company in hopes that they’ll be offered a job.7

  In addition to staffing the government, corporations and their lobbyists also have outsized influence over the writing of regulations. Business groups provide the vast majority of comments to proposed regulations, and on important issues sometimes engage in dozens of preproposal meetings in which they can shape the views of the agency officials who are designing the regulations. If a regulation makes it through the process, it must then be reviewed by the Office of Information and Regulatory Affairs (OIRA), a little-known outfit within the Office of Management and Budget. There, too, officials meet disproportionately with industry representatives—and political scientists have shown that lobbying OIRA leads to further proindustry changes in the regulations.8

  So we have a political process that is stacked to favor the wealthy and corporate interests, a legislative process dominated by lobbyists, and a regulatory process often staffed by lobbyists and susceptible to their influence. If, by some miracle, the laws and regulations are sharp enough that corporate interests feel their sting, the courts provide one last opportunity to evade the long arm of the law. Here, too, the deck is stacked. One 2008 study of the federal courts showed that 85 percent of judges had worked in private practice, largely for corporate firms, while only 3 percent had worked for nonprofits—and only one judge out of 162 had experience in consumer protection. Supreme Court watchers have shown that the groups best at getting their cases before the highest court are a who’s who list of powerful corporate lobbyists: the Chamber of Commerce, National Association of Manufacturers, the pharmaceutical lobby, and the American Bankers Association. And when they get to the court, these groups find some of the most probusiness justices in American history. According to scholars Lee Epstein, William Landes, and former judge Richard Posner (a Reagan appointee), prior to Justice Antonin Scalia’s death in 2016, the five conservative judges on the Supreme Court were in the top ten of the most probusiness justices in history—and numbers one and two were Chief Justice Roberts and Justice Alito.9

  With all these problems, it is no surprise that Americans’ greatest fear is that our government is corrupt. What we need now is not cynicism and resignation, but a plan to fight corruption—a bold, fearless anti-corruption agenda. This agenda has four parts: electoral reforms, legislative reforms, executive branch reforms, and judicial reforms.

  Electoral Reforms

  Thin versions of democracy focus on the ability of people to vote, but democracy goes beyond simply casting a ballot. It is a way of life that imposes civic requirements—political, economic, ethical, and social obligations—on every person. One of those obligations is that everyone participates in the political process. Right now, we have an opt-in system of political participation, which means that people don’t have to participate, often aren’t encouraged or formally expected to participate, and are sometimes even prevented from participating.

  To move toward universal participation, in the short term, we should make voter registration automatic and adopt same-day registration, early voting, and a nationwide vote-by-mail system. This would mean that any time a person engages with the federal government or a state government, they would be automatically registered to vote if eligible. If, by chance, there’s a failure, they could also register at their polling place and cast a ballot. And to make voting itself easier, every jurisdiction should be required to offer early voting an
d vote-by-mail. Under vote-by-mail, every registered voter gets a ballot in the mail and can fill out the ballot at home and then either put it back in the mail or return it to a drop-off site, such as a public library or fire station. This approach has already been implemented in Oregon, Colorado, and Washington, as well as virtually all of Utah, half of North Dakota, and other parts of the country too. Studies show that a vote-by-mail system increases turnout, and it has the virtue of making voter suppression and fraud more difficult because individuals can’t intimidate or turn away voters when they vote in their own homes. Voters don’t get frustrated with long lines or have to deal with work schedules or childcare issues. And a vote-by-mail system creates a paper trail that makes it much harder to hack an election.10

  Over the longer term, we could also try to move away from an opt-in model for voting to an opt-out model. In Australia, for example, voting is universal, and the failure to show up at the polls comes with a small fine. Universal voting recognizes that we all have the duty to participate in shaping our shared future. It also solves many of the problems of political responsiveness. With everyone voting, elected officials can’t just rely on the wealthy to build political coalitions. They have to attend to the needs of working people, the poor, and the otherwise ignored. Indeed, some studies suggest that universal voting might decrease economic inequality; because candidates are responsive to all the people, they can’t support policies that only support the wealthy elites. This is also why would-be nationalist oligarchs have always feared the franchise. They know that the best way to stay in power is to stop the people from exercising their voice—and they know that if the people exercise their voice, they won’t support oligarchic policies that only benefit the elites.11

  Those with libertarian sympathies might object: What about those who don’t want to vote or want to protest through their vote? The answer is simple: universal voting can come with an option to vote for “none of the above” or simply submit an empty ballot, thereby registering disapproval of all candidates. Indeed, this protest option will also increase political responsiveness and make the system more attentive to everyone in society. A rising share of votes for “none of the above” would give incumbent parties a powerful incentive to reform to compete for those voters. If the parties don’t change, they face the looming threat of new parties that might emerge to capture those who feel unrepresented.

  In addition to expanding access to voting, we need to eliminate gerrymandering and move to a neutral system of legislative districting. Gerrymandering legislative districts is just a form of rigging politics to preserve the power of one faction over another. It is also an important strategy for nationalist oligarchs who might not be able to win in a neutral, fair election. By drawing district lines that benefit one party, a minority can retain political power even if popular majorities oppose them. Citizens must demand that independent commissions draw legislative districts.

  Achieving political democracy will also require reducing the power of big money in elections. The Supreme Court has interpreted the First Amendment to block virtually all efforts to stop the rigging of our political system through large campaign donations. Thus, the starting point for reform is an amendment to the Constitution that will allow Congress to place restrictions on money in politics, undoing both the famous Citizens United case and the less famous case of Buckley v. Valeo.

  What rules should Congress then place on money in politics? There are different approaches it could take. First, Congress could simply place far greater restrictions on the size of campaign contributions and spending. This would prevent the wealthiest people from dominating candidates’ time and the political airwaves. Second, Congress could restrict the geography of contributions. Right now, people in New York or Texas can contribute gigantic sums to determine who should represent the people of Iowa. If democracy is to be representative, however, constituents should pick their representatives free of interference from outsiders. Restrictions could limit contributions or outside spending to a candidate’s constituents only. Third, Congress could establish a system of campaign finance vouchers. On this approach, every voter would get a voucher worth a small amount of money to give to any candidate (or candidates) the voter chooses. To fund their campaigns, candidates would have to compete for citizens’ voucher dollars. Thus, instead of spending time dialing for dollars from the wealthy, they would spend time hearing the concerns of ordinary people. Finally, Congress could mandate public financing of elections, setting aside a limited amount of money for elections at every level and requiring candidates to work within that budget. Of course, these reforms could also be combined.12

  Election reform also requires thinking about who is in the electorate—and making sure that all Americans are represented in our democracy. Right now, our system excludes many citizens from meaningful representation. Around six million citizens are excluded from voting due to conviction for a felony, including more than 7 percent of the adults in Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia (though Florida recently undertook a serious effort to reform this status). Felon disenfranchisement has far-reaching effects in skewing representation particularly on racial and class lines when there are no opportunities to earn back the right to vote.13

  In addition, millions of American citizens are excluded systematically from representation because of their geography. The citizens of Puerto Rico; Washington, DC; and the United States’ island territories (Guam and the Northern Mariana Islands, the Virgin Islands, and American Samoa) are US citizens and pay federal taxes. Yet they do not have representation in Congress. Representation for these people matters. When Hurricane Maria hit Puerto Rico in 2017, the response from the federal government—Congress and the Trump administration—was tepid at best and disastrous at worst. Without real representation in Congress and the power to exercise a meaningful vote, the pressure on the administration to help these American citizens was limited. The answer here is clear: states can be admitted to the union by simple majority vote in Congress, and Congress should admit Puerto Rico, the Island Territories, and the District of Columbia as three new states if those areas seek to join the union.

  Congressional Reforms

  Of our branches of government, Congress is supposed to be the most representative of the people. But instead, Congress seems perennially to be in the pocket of big interest groups, whose aims diverge significantly from ordinary voters. There are three basic ways to reform Congress to address this divergence.

  The first is to make members of Congress more independent of interest groups and lobbyists. Although campaign finance reforms are a good start, we must go further and institute a lifetime ban on members of Congress becoming lobbyists and a multiyear ban on staff becoming lobbyists. Members of Congress should also not have financial conflicts of interest when they are making policy. They should all be required to move their investments in stocks into the Thrift Savings Plan (TSP), a set of mutual funds, independently managed, for federal employees’ retirement. Members should also have to relinquish any ownership stake in a company beyond mutual funds and release their tax returns.

  The second strategy is to increase the power of congressional staff vis-à-vis lobbyists. Many congressional staffers are in their twenties and are overworked, underpaid, and have too little expertise in any particular area. The result is that staffers turn over frequently—and often depart to lobbying firms, where they can parlay their relationships and influence into lucrative careers. This phenomenon was always present, but it wasn’t always as bad as it has become. In the early 1990s, when Newt Gingrich became Speaker of the House, he “moved quickly to slash the budgets and staff of the House Committees,” Republican Bruce Bartlett writes. This “permanently crippl[ed] the committee system and depriv[ed] members of Congress of competent and informed advice on issues that they are responsible for overseeing.” One way to address this problem is not only to rebuild the committee staff system but also make congressional staff more professional, ak
in to the civil service. Staff salaries should be increased so members can recruit and retain top talent without fear that they will depart to become lobbyists after only a few years. There should also be a regular pay scale so staff can be promoted and build seniority in salary and benefits.14

  A third approach is to decrease the power of the lobbyists. Senator Elizabeth Warren, for example, has called for banning lobbyists from giving gifts to members of Congress, ending contingency fees whereby lobbyists get paid only if they get a certain policy outcome, and banning political donations from lobbyists to members of Congress. She has also proposed placing a tax on excessive lobbying—defined as more than $500,000 in expenses annually—and using the proceeds to fund the creation of a public advocate who would represent the general public in legislative debates.15

  Executive Branch Reforms

  The executive branch is also susceptible to influence, but the corruption of the executive branch is in some ways more pernicious because it is less publicly visible—and therefore more difficult to ferret out. Some of the same solutions for members of Congress should apply to top executive branch officials—a lifetime ban on lobbying for cabinet secretaries and other top officials and a multiyear ban on lobbying for junior officers, including banning them from lobbying the agency they worked in until the end of the administration. In addition, rules should seek to slow, or stop altogether, the revolving door by which officials roll in and out between regulators and the very industries they regulate. Officials should be prohibited from working for any company that the official had jurisdiction over for at least four years.