Based on the U.S. Supreme Court argument in the Wisconsin Gerrymandering case, I am optimistic that we may get some very much needed reform. To see why, click here for my commentary on TheHill.com.
All of those who took part in recent demonstrations – the women’s marches, Black Lives Matter and others aimed at protecting civil liberties, immigrants, the vulnerable and the less advantaged – we are not a minority.
But demonstrations aren’t enough. This country is ruled by ballots. Protests matter when ballots threaten. Nonvoters are routinely discounted. So the next step is to organize to vote.
That’s where demonstrations become a major opportunity. Those who marched can be helped to register or they can help others register and vote.
Marchers need to be asked: whether they are registered to vote; whether they are registered at their current address; whether they are registered to vote in the primaries; whether they have been getting to the polls and voting; and whether they know others, in this or any other state, who need help or encouragement to register and vote. Would you get registration forms for others?
Demonstrations can lead to votes in other ways.
Demonstrate at the Board of Elections to make a difference by showing we want to vote, we’re signing up to vote, we’re ready to vote. Let’s show up where it matters.
Demonstrate outside the 100 foot or other state defined zone where electioneering is prohibited, showing and sharing the fact and the joy that we voted, and you voted, and we performed our civic duty for each other and we did it together and we’re celebrating – those are demonstrations that can make a difference.
What’s crucial about the demonstrations we all took part in doesn’t end with the message. That’s the beginning; that’s what got us fired up and brought us together; that’s what made clear our commitment and our shared sense that acting as a people is empowering. But what matters is converting that commitment – the joy, the fire in our hearts and the messages we marched for – into votes.
Democracy depends on what happens at the voting machines. It’s run by votes and the threat of votes. Even campaign contributions are ultimately about votes. Voices are most powerful when they lead to votes. If we vote, we count. If we stay home in disdain because we’re not satisfied, we’re politically irrelevant. Vote. Count. Take back our democracy – for us, for all of us, for the people. Don’t let the moneychangers and the slick talkers take the forms of democracy for their own benefit. We vote; we count; and we celebrate.
Why look at that now? Because the organization that makes voting happen, the organization that makes the voices of the people matter at the polls and on the ballots, all that organization starts way in advance. Because every state has its deadlines. And back before the deadlines, organization is not instantaneous. Let’s create our political snowball. Let’s terrify the politicians with our strength so that they’ll actually have to behave democratically, according to the rules, principles and methods of democratic government.
Wouldn’t that be refreshing!
— This commentary was broadcast on WAMC Northeast Report, May 2, 2017.
I wrote Unfit for Democracy to warn that American democracy could collapse in coming decades. But the problems are coming home to roost sooner than I expected.
How the economy treats people matters. That was the starting point for my work and, since World War II, for political scientists studying the survival or breakdown of democracy. But the American economy has been leaving lots of people behind. In my book I argued that the Supreme Court was diluting the value of ordinary Americans’ economic rights in favor of the wealthiest people and corporations. I feared the danger to democracy as people became more and more desperate.
I also worried the Court wasn’t enforcing the Bill of Rights for ordinary people and feared would-be dictators could take advantage of it. And I worried because the Court permitted politicians to fix the voting mechanisms to make fair elections almost impossible. Changes made after the 2010 census allowed Republican-dominated legislatures to lock Democrats out of Congress and the majority of state legislatures for the foreseeable future. That Court-sanctioned gerrymandering now blocks fair representation in Congress and in many states. Trump kept claiming that the system was fixed, implying that it was fixed against him, but the Court allowed the Republican Party to block access to the polls in many states. The election was partly fixed, in favor of the Republicans and Mr. Trump.
I also worried that legal changes underlying changes in the media and the primary systems were contributing to the polarization of America. As Jim Hightower once titled a book, There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. I thought that was dangerous.
Now we are finding out that only a quarter of Americans still believe that it is important to live in a democracy. And we’ve elected a president who befriends autocrats – autocrats who destroyed democratic governments, censored the press, put opponents in prison, and took over.
Once that happens, the people who wanted to break the system down have no voice in what the new system does. Autocrats around the globe become kleptocrats – they steal from everyone for themselves and their friends. In commentary earlier this year I described that as the Sheriff of Nottingham syndrome – the sheriff from the Robin Hood legend who took from the poor to fill the pockets of King John. Corruption in democracies doesn’t hold a candle to what autocrats do to their people financially, how opportunities suddenly depend on the dictators’ favor, how freedom disappears, real freedom, the freedom to walk around out of prison and take care of one’s family. Those folks who were so ready to break the system are likely to be among the first broken by it.
The Court won’t protect us. Those with power have no motive to protect us, but only to keep their own advantages. The rich will have more, not less control. Just look around at how Trump is deepening the threats:
- His worldwide set of conflicts of interest become opportunities for Trump enterprises in the pattern of third-world kleptocracies;
- He proposes to cut benefits for ordinary Americans, leaving more for himself and friends;
- He selects America’s wealthiest to run our economy;
- He rants about asserting “Second Amendment rights” at the polls as if menacing people at polling places advances democracy;
- He rants about throwing people in jail – starting with his political opponent – though that threatens democratic competition;
- He seems to think that winning means he can do whatever he wants.
- And he and the Republicans seem to believe recounts are legitimate only for themselves – not to protect and enforce the voters’ choices.
If American democracy collapses, it will be the biggest victory for the world’s worst people. As Trump pounds on the pillars of democracy, we will have to do all we can to preserve the American democratic way of life.
 Unfit for Democracy, at 195-204.
 Id. at 153-67; Law and the Polarization of American Politics, 25 GEORGIA STATE L. REV. 339 (2008).
— This commentary was broadcast on WAMC Northeast Report, December 5, 2016.
This is my last chance to talk with you before the polls close.
Republicans have argued since the 19th century that the market solves all problems. Democrats by contrast solve economic problems by investing in the people and the infrastructure they need to get their work done – things business can’t partly because of competitive pressures and partly because they can’t reap the benefits of projects that help the general public.
Because getting things done requires both the president and Congress, split government favors the Republicans. Democrats need both branches and both houses of Congress to pass the laws that make their economic programs possible. Looking back to 1994, there have been only four years in which Republicans did not control at least the Senate.
There is a well-justified need to rebel against the way the economy and the government have been treating you, and the Republicans should bear the brunt of that rebellion.
They insist that investors would use tax breaks to create new jobs in this country. In fact, tax- break beneficiaries can invest the money anywhere. So when Republicans give wealthy businessmen more money, we just get the risk. Their friends get tax breaks; workers get laid off. Their friends close factories; workers look for jobs. Their friends freeze wages; workers look for second and third jobs just to keep going. Their friends downsize for efficiency, leaving workers unemployed, unhappy, and looking for a way to earn a living.
The economy is organized for the guys on top. Dealing with it, making America truly great for all of us, takes more than the Republican nostrum of lowering taxes. Businesses invest where they find markets, workers, infrastructure, and where they’re attracted by the comfort or the cultural life for themselves and those they want to hire. Taxes have little to do with it.
That’s why Obama’s and Hillary’s investment in infrastructure and emerging industries is a better deal to create jobs and opportunities for everybody. There are many reasons to invest in America – unless we let it fall apart, let our infrastructure crumble, and don’t keep it up to date.
Whether Trump understands real estate, where he’s managed to lose lots of other people’s money, Trump clearly doesn’t understand the economy. The old trope about taxes won’t grow the economy. And his promises are cynical because people won’t invest in outdated, high cost, low return industries when there are better opportunities, no matter how much he yells about it.
Which gets back to something else Trump doesn’t understand. Government needs to work on shifting the risk, to make it easier for the vast majority of Americans to find new sources of income, if necessary to move where the jobs are, on more than a hope and prayer of avoiding homelessness. That’s not in the big generalities that so-and-so will fix things. That’s in the details. You work on those; you study those; the job isn’t all in the bluster.
We’ve had enough of Republicans blocking every effort to build the economy, protect its workers and take care of all the people. It’s time for a smart rebellion – not a wild swing with eyes closed.
So do vote if you haven’t already. It matters.
— This commentary was broadcast on WAMC Northeast Report, Nov. 8, 2016.
Last week we discussed the importance of taking political campaigns back from big donors. This week we begin examining the complexity of reinstating limitations without damaging what should be protected speech.
Citizens United angered people about corporate legal rights. People want to remove those rights wholesale. But that view of the Court’s mistake raises far more serious First Amendment issues than most people understand.
Removing corporate protections would require distinguishing corporations that should be protected – political associations, broadcast, digital and print press – from those that should not be protected. That’s not easy. If corporations release “news” reports or take positions, are they press or stockholder associations? What would broadcasters’ or newspapers’ protections depend on? What would legitimate or prohibited explanations of corporate needs and positions be? First Amendment law developed around clear rules to prevent judges or legislators from deciding who can speak about what. Removing First Amendment protection from corporations cuts deeply against the First Amendment grain.
Constitutional rules, however, can be limited for compelling reasons. Citizens United revealed fundamental problems with the justifications, like corruption, for financial limits on participating in campaigns. Quid pro quo corruption is clearly illegal but regulation went well beyond it. Money can divert legislators’ attention from constituent needs toward donors’ needs, but can also expose misbehavior, or champion voters’ interests. Attorneys’ ethics prohibit us from engaging in deals or accepting gifts that create conflicts of interest – but it’s harder to define legislators’ conflicts where the donors or their allies are constituents. So the meaning of corruption has been vulnerable to attack and narrowing by the Court.
Large donations can entrench office-holders against challengers. But they can do the reverse by helping unseat legislators. The Court hasn’t been very receptive to that claim.
Political equality is a right, including rules surrounding voting, vote counting, and apportionment of districts. But just as clearly, economic equality is unacceptable here. The logical conclusion of economic equality would be a never realized vision of communism. Demanding some economic equalization in politics would force the Court to balance the extent to which economic equality can be required by political equality. That’s not a problem with a specific solution. And the Court is skeptical of allowing legislatures to define the balance because they have conflicts of interest. In any event, legislation doesn’t look promising in Congress or in most states. I’ve argued that the Supreme Court must consider equality in shaping economic rules, but that’s harder where it requires narrowing First Amendment principles. So financial equalization is hard to define and harder to argue.
Well-respected Harvard law professor, Lawrence Lessig, argues that campaign finance restrictions would prevent legislators from becoming too dependent on a few powerful donors. Dependence leads legislators to shirk their duty. But legislators shouldn’t be independent of their constituents or powerful voices. So, once again, what’s the right balance? Who is and is not entitled to participate in the political debate? And how much is too much, or too little? Moving beyond Citizens United will have to be done thoughtfully.
In any event, four of members of the Citizens United majority remain on the Court. Justice Kagan is new. People who know her well tell me that she is a First Amendment absolutist, which liberals would have applauded before Citizens United, and she is not likely to overturn it. So the decision will be with us for a while.
Next time we’ll look at the proposed amendments.
— This commentary was broadcast on WAMC Northeast Report, July 12, 2016.
 Citizens United v. FEC, 558 U.S. 310 (2010).
 Lawrence Lessig, Republic Lost (2011); Ian Shapiro, Notes Toward a Conditional Theory of Rights and Obligations in Property, in Stephen E. Gottlieb, Brian H. Bix, Timothy D. Lytton and Robin L. West, Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications 914 (LexisNexis 3d ed. 2015) (“defin[ing] freedom in terms of the multiplication of dependent relationships”); Bruce Bueno de Mesquita and Alistair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics (2011); BRUCE BUENO DE MESQUITA, et al, The Logic Of Political Survival (2003).
Some of you may have been following Shankar Vedantam on NPR or the discoveries of Daniel Kahneman, the Nobel Prize winning psychologist on the Princeton faculty, and their demonstration of the irrational ways that people very naturally and ordinarily reach decisions. Indeed, for quite a long time it’s been apparent that rational decision making often demands too much of people. As Cornell’s Vicki Bogan said in a talk in Albany, the rational choice model of economics assumes that people:
- Think like Albert Einstein
- Can store as much memory as IBM’s Big Blue
- Can exercise the will power of Mahatma Gandhi
- … [and] make unbiased forecasts
Nobel Prizes have been awarded to psychologists and economists who have been studying human decision making, showing that people literally can’t do what conservative economic theory expects them to. The rational man doesn’t exist, and for that reason, markets often don’t protect us. For both businessmen and consumers, rational choice is often impossible; it’s just too hard. Sometimes things aren’t currently knowable. Sometimes they’re beyond the capacity of individuals, even if institutions can figure it out.
A trip to the grocery store helps make the point clear. Even though much of the information exists, I can’t know enough about all the ingredients of the goods I buy, and their impact on my body, and still take the time to do my work and have a life to live. I have to trust someone or something else. But consumer ignorance shapes what businessmen have to do to survive. Those who cater only to the most informed, cater to small markets and often go under.
One consequence is that the market doesn’t protect us. That’s why workers’ compensation was started many decades ago – workers couldn’t figure out the odds of injury and didn’t have the ability to protect themselves as cheaply and effectively as informed employers could. Government stepped in to move that burden of knowing and choosing from the employee to the employer.
Those are examples. The broader impact of what is now called behavioral economics is that the economic theory of market ideologues is thoroughly discredited nonsense. It doesn’t work. A couple of decades ago there was a big debate about the efficient market theory which claimed that the market had it right even though individuals could be wrong. But they couldn’t tell me whether the market had it right the day before or the day after the crash. In other words it was nonsense on stilts.
That’s one of the reasons the public, all of us, have to get out of the glare of the outdated economics coming from conservative ideologues. It’s one of the reasons why it has been so important that Elizabeth Warren and Bernie Sanders have moved the Democratic Party to the left. That shift also clears the way for Hilary Clinton to return to the roots of the modern Democratic Party in the Great Depression, in Roosevelt’s New Deal, in being a party with heart.
Hilary and Bernie both have a lot to offer, but just as big a key to progress will be the Senate and the House of Representatives, which have blocked Obama’s efforts to push this country toward better, more caring solutions at every turn.
— This commentary was broadcast on WAMC Northeast Report, April 26, 2016.
Justice Scalia’s death creates a vacancy on the Supreme Court. The next president may have more to fill. Deciding cases as if it were the Sheriff of Nottingham, The Roberts Court is having a major impact on the economy. How those vacancies are filled will make a big difference to all of us.
Robin Hood and the Sheriff of Nottingham come down to us from a medieval fairy tale and retellings in print and on film. Bruce Bueno de Mesquita and his colleagues explain the role of Sheriff of Nottingham type figures in our contemporary world. As fewer people have real power, those who run the government must shovel favors to them. Given how wealthy they already are, they won’t appreciate any but very large rewards. But what government does for the public leaves less for these powerful patrons. So rulers employ modern Sheriffs of Nottingham. It’s what Bueno de Mesquita’s group calls the dictator’s game: by starving the public, dictators have more for powerful supporters – and the more they demand.
Kevin Phillips detailed the enormous benefits that corporations seek and government directs toward corporations and their leaders. Spending on politics has huge returns, driving the fruits of government to the favored few, and dismantling government wherever business prefers to operate in the dark.
Many of us have been fighting against special favors for corporations that exploit workers, the environment and the general public. But it gets worse. As the story of Robin Hood implies, holders of great wealth and power fear the people will take their ill-gotten gains from them. To prevent it they block opponents from voting, minimize their votes by gerrymandering, and pour large funds into preserving their power while starving the population of public services.
The Supreme Court has been helping. Despite enormous gains by the wealthiest in America, and the declining share of the general public, this Court consistently moves economic benefits from the public to business, from the victims to the predators. The Court reversed the meaning of a 1925 arbitration statute to derail a plethora of state consumer protections and made it almost impossible to sue. Instead, the Court allows corporate defendants to choose who will decide the dispute, and at what cost. The Court undercut both state and federal standards of liability for injury to consumers, securities fraud and the damages available if plaintiffs win. And the Court is waging a battle to strip the unions of power to protect workers.
At the same time, the Court unleashed the full power of corporate treasuries on politics. Those corporate treasuries had barred from politics since early in the twentieth century. And the Court allowed states to make it harder to register to vote by increasing the cost and time to register – making it harder for working class, poor or physically challenged Americans to vote. The Court allows gerrymandering to reshape American politics, and has supported other efforts to entrench political incumbents. The Court topped all that by removing the requirement that covered states pre-clear voting changes, the one weapon of the Voting Rights Act that had worked.
Historians and political scientists tell us that pattern of disparities often leads to the breakdown of democracy, the loss of self-government. Sometimes it leads to violence, like the Black Shirts, Brown Shirts, Death Squads, and the security services of people like Putin. Sometmes the plutocrats simply invite a dictator to take control. Great disparities are dangerous. Instead of moderating these outrages in the name of American tradition, the Court has been making the problems worse, increasing disparities and letting them take over American politics. This Court is a danger to American self-government.
That’s where the 2016 elections matter. Whatever policies candidates claim to support, their judicial picks will have a big impact on what really happens to ordinary Americans and the future of self-government in America.
— This commentary was broadcast on WAMC Northeast Report, February 23, 2016. An expanded essay can be found here.