Goodbye democracy
author:
all enemies foreign and domestic
We have pretty much said goodbye to democracy in this country. Now it looks like we may soon be saying goodbye to the constitutional republic.
I don't know if anyone much cares anymore. The Constitution is a shredded and stained thing. The kind of patriotism that citizens exhibited in World War II, in the Civil War, in the old American Revolution -- that's dead. Yes, I know, in WW II there was segregation in the military (Black units and White units), in the Civil War it was Americans fighting Americans and in the beginning, it was all to create a democracy where for sure some were to be "more equal" than others. BUT they did, back in the day, think about the Constitution and take it seriously. That's how come the Civil War happened anyway. They had strong opinions, would take only so much, and had the testicular fortitude to back it up.
FINALLY, the battle is to rage THIS WEEK in the Senate over the filibuster and Bush's control of the courts. The gauntlet will be laid down when the Republicans bring the nomination of Priscilla Owen to the entire Senate for confirmation. Who is Priscilla Owen? She's a lawyer who got her start working for oil and gas corporations in Texas, both before and after she became a judge. Bush wants to reward all her great work with a life-time appointment to the big 5th circuit court of appeals, that presides over Texas and adjacent states.
Democrats in the Senate will have to oppose that nomination (and several others) with everything they've got. Which ain't much these days, but it's still something.
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The Democrats have Senator Harry Reid of Nevada leading their defense against the Republican grasp for ever more power. Reid, who has consistently voted against so-called "free trade" agreements, is a former boxer in his youth. Here's some of what Reid said today about the whole thing --
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Senator Reid:
The Majority Leader has stated that the Senate will turn to the subject of judicial nominations this week. Democrats are ready for this fight. We stand united against an outrageous abuse of power that would pack the courts with out-of-the-mainstream judges.
The time has come for Republican Senators to decide where they stand. Will they will abide by the rules of the Senate, or break those rules for the first time in 217 years of American history? Will they support the checks and balances established by the founding fathers, or vote to give the president unaccountable power to pick lifetime judges?
While Democrats are ready to debate this issue, I am deeply pained that we need to do so. The Senate in which I have spent the last 20 years of my life is a body in which the rules are sacrosanct. We may choose to amend the rules by two-thirds vote. We may enter into unanimous consent to waive the rules. But never before in the history of the Senate has a partisan majority sought to break the rules in order to achieve momentary political advantage.
In an effort to avoid this confrontation and preserve constitutional checks and balances, I have made every effort to be reasonable. Last Monday I offered to have an up-down vote on Thomas Griffith, a controversial nominee to the D.C. Circuit. Last Thursday I offered to have an up-down vote on three nominees to the 6th Circuit, two of whom were filibustered last year.
These are not judges Democrats would choose. But we know the difference between opposing bad nominees and blocking unacceptable ones. In making these good faith offers, I asked the majority: Do you want to confirm judges or do you want to provoke a fight? Regrettably, my proposals were rejected.
Separate from these offers, I wrote to the Majority Leader last week and suggested two ways to end the impasse:
First, I made clear that my previous offer to allow an up-down vote on one of the four most controversial nominees remains on the table.
Second, I suggested that we consider changing the rules in accordance with the rules - if the Majority Leader were to put his proposal in the form of a Senate resolution and allow it to be referred to the Rules Committee, Democrats would take his proposal seriously and expedite its consideration.
Neither of these good faith suggestions has been accepted, and it's clear why. Republicans in the Senate demand to have it all. A 95% confirmation rate isn't good enough. Votes on some of the most controversial nominees isn't good enough. They are prepared to do whatever it takes to achieve total victory.
Meanwhile, the White House appears to be pulling the strings.
Several weeks ago the President assured me that he would play no role in this debate. Shortly after that, Deputy White House Chief of Staff Karl Rove was quoted as discouraging any middle ground. Then Vice President Cheney gave a speech in which he encouraged the nuclear option. On Friday the Washington Times said that White House Press Secretary Scott McClellan "flatly rejected any talk of a compromise that would confirm only some of the president's seven blocked nominees."
It's disturbing that the White House is playing an aggressive role to discourage compromise. Every high school student in America learns about checks and balances. The Senate's Advice and Consent role is one of the most important checks on executive power. The White House should not be lobbying to change Senate rules in a way that would hand dangerous new powers to the President over two separate branches - the Congress and the Judiciary.
Of course the President would like the power to name anyone he wants to lifetime seats on the Supreme Court and other federal courts. But that's not how America works. The Constitution doesn't give him that power, and we should not cede that power to the Executive Branch.
As the Majority Leader admitted during his debate with Senator Byrd last week, there is no constitutional right to an up-down vote on judicial nominees. If there were, more than 60 of President Clinton's nominees had their rights violated.
In fact, the Senate has rejected hundreds of judicial nominations over the years, some by up-down votes, some by filibuster, and some by simple inaction. In each case, the Senate was acting within its authority under the Advice and Consent Clause of the Constitution.
Senator Frist says he wants a Fairness Rule, but a rule allowing the President to ram extreme judges through the Senate is unfair to the American people.
Meanwhile, we need to get back to the people's business, and put the people over partisanship. We were sent here to govern, and right now we're not doing that. Gas prices are up, families have lost health insurance, pension plans are unstable, and the situation in Iraq is grave. The Senate is fiddling, while Rome is burning.
I will continue talking to the Majority Leader, and I know other efforts at compromise are under consideration. But unless cooler heads prevail, this confrontation will be upon us later this week.
And if it comes to a vote, Democrats and responsible Republicans will vote to preserve checks and balances, and preserve the principle that the Senate rules must not be broken.
The eyes of the Nation are upon the Senate. There have been few moments of truth like this one. The American people will see whether the Senate passes this historic test.
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It's ironic how the 45 minority members of the Senate actually represent more voters, as shown in election results, than the 55 members of the Republican so-called "majority".
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Straw votes
Lewis H. Lapham
To the extent that a citizen's right to vote is debased, he is that much less a citizen.
--Chief Justice Earl Warren
If I lived in Cleveland or Detroit, my vote in the November presidential election might count for something in the eventual result; because I live in New York, it will count for nothing, as pointless as would be my vote for the next president of Uzbekistan or France. Roughly two thirds of the American electorate is similarly disenfranchised, and so it comes as no surprise that the autumn campaign season has brought with it a dense fog of slander in all categories of informed and uninformed opinion (Democrat and Republican, military and civilian, urban as well as rural and suburban) spewed forth by diminished citizens in both the red states and the blue who apparently take comfort in their feelings of resentment, alienation, and rage.
The American people don't choose the American president; the decision rests with the Electoral College, which, as was made plain four years ago in Florida, may or may not reflect the popular will. The variance is deliberate, intended by the framers of the Constitution as a defense against the corruption of a federal legislature too easily bought and sold and as a check on the ignorant passions of an unlettered populace widely dispersed in what was still a wilderness. The Electoral College in the late eighteenth century recruited its members from among the most enlightened citizens in each of the states, men "free from any sinister bias," as well read as they were well traveled, admired for their "virtue," "discernment," and "information." By 1828 the theory of appointing wise counselors had given way to the practice of employing partisan stooges, but the Electoral College continues to exclude ordinary, run-of-the-mill Americans from the privilege of direct participation in the naming of the individual to whom they entrust the administration of their government. Which is why, together with everybody else in the country on Election Day, I won't vote for Senator John Kerry or President George W. Bush; I'll vote instead for thirty-one unknown persons pledged to a line on the ballot and chosen for no reason other than their reliably sinister bias.
The Constitution assigns to each state a specific number of electors, the size of the delegation based on population and representation in Congress--fifty-five for California, twenty-one for Illinois, three for Wyoming, etc. Acting as freight-forwarding agents for the plurality of votes cast in each state, the electors come together in fifty state capitols on the first Monday after the second Wednesday in December, and there, in the presence of flags and usually at noon, they transfer the entire allotment of their state's electoral vote to the candidate on the winning side of the percentage. They take no notice of, nor grant any standing to, the concerns, wishes, views, theories, or convictions on the losing side of the percentage. On November 7, 2000, nearly 3 million people in Florida voted for Vice President Al Gore, but because Governor George W. Bush received the plurality (by a disputed margin of 537 votes), the Electoral College awarded him every vote cast for Gore and thus one more than the requisite majority of 270 in the Electoral College. Although in voting booths across the whole of the country Gore received 539,893 more popular votes than Bush, the single electoral vote, buttressed by the Supreme Court's decision to forbid a final recount in Florida, placed Bush in the White House.
In a new book published last summer under the title Why the Electoral College Is Bad for America, George C. Edwards III, a professor of political science at Texas A&M University, explains the anti-democratic procedure and result in December 2000 with reference to the Bible lesson given at Matthew 13:12: "For whosoever hath, to him shall be given, and he shall have more abundance: but whosoever hath not, from him shall be taken away even that he hath." The same words describe the method of the Bush Administration in both its foreign and domestic theaters of operation, and in our current state of political animosity and confusion, I've come across few books as timely or as relevant as the one in which Professor Edwards suggests that the country now finds itself confronted not only with an absence of a coherent national politics but also with a constitutional crisis.
Unable to see how a democracy can call itself a democracy unless everybody's vote is counted as equal, Professor Edwards sets out to prove that the Electoral College is both needlessly complex and inherently unjust. He informs his treatise with statistical tabulations (of election returns, presidential travel schedules, placement of campaign advertisements), with historical points of comparison (the elections of 1876, 1888, and 1960 discussed as foreshadowings of the election of 2000), and with firm refutations of the several contemporary pleadings put forward on behalf of the Electoral College as a necessary support of the two-party system. Other scholars in other rooms undoubtedly will quarrel with one or another of the professor's conclusions, but his principal lines of argument deserve extensive debate in both the news media and the Congress.
1. Some votes are more equal than others
Seeking to balance the interests of the larger states with those of the smaller states, delegates to the Constitutional Convention in 1787 devised the "Great Compromise" that apportioned seats in the House of Representatives according to the size of the state's population but assigned to each state, no matter how sparsely settled, two seats in the Senate. The deal was falsely named--not a compromise but a concession to the smaller states threatening to withhold ratification of the Constitution unless they received an equal share of America's newly acquired political inheritance. Writing in Harper's Magazine last May, Richard Rosenfeld described the consequences:
In America today, U.S. senators from the twenty-six smallest states, representing a mere 18 percent of the nation's population, hold a majority in the United States Senate, and, therefore, under the Constitution, regardless of what the President, the House of Representatives, or even an overwhelming majority of the American people wants, nothing becomes law if those senators object.
For the same reasons that dictated the undemocratic organization of the Senate, the Electoral College under-represents large states and over-represents small states. As Professor Edwards points out, an electoral vote in Wyoming presently corresponds to 167,081 persons; an electoral vote in California represents 645,172 persons; which means that in a presidential election a popular vote in Cheyenne is the equivalent of four popular votes in Los Angeles or San Luis Obispo. The democratic faith in majority rule sustains and validates every other form of American election, but the election of the president takes place in an alternate universe.
2. The imaginary majority
Voters unaligned with the state's electoral vote play no part in the presidential election, and their voices disappear from the national political stage. The majority of the country's African Americans live in the southern states, their presence unremarked upon and their concerns unaddressed by either presidential candidate, because the southern states routinely deliver their electoral vote to the Republicans. Similarly, in the New England states, the electoral vote routinely goes to the Democrats, with the result that both presidential campaigns ignore the presence of conservative, socialist, libertarian, or independently minded voters in Rhode island and Connecticut. Comparable to the demographic charts governing the sale and distribution of consumer products, the tally in the Electoral College presents a distorted picture of the American character and mind too much emphasis assigned to the Christian fundamentalism in the South as well as to the secular humanism in the North, not enough recognition of the diversity of opinion in small towns as well as in large cities.
Election by a majority of states rather than by a majority of citizens excuses the candidates from the effort of talking to, much less attempting to convince or persuade, voters not already inclined to applaud most everything they say or promise. Four years ago neither George Bush nor Al Gore spent much time campaigning in Texas, California, or New York, three states that among them encompassed 26 percent of the American population but possessed no electoral votes deemed to be negotiable--the 32 in Texas on consignment to Bush, the 33 in New York and the 54 in California reserved to Gore. The two candidates in 2000 made a combined total of eighteen appearances in Wisconsin, thirty-one in Michigan, and twenty-six in Florida; neither of them appeared, not even once, in any of the eighteen states (among them Vermont, Oklahoma, Colorado, and Connecticut) regarded as dead letters and foregone conclusions.
The disproportionate investment of time and money in the so-called swing or battleground states is a measure of the degree to which the value of an American citizen has been discounted and debased. The presidential candidates don't address the American people simply as their fellow countrymen; they speak to an aggregate of interest groups and target audiences-Americans distinguished not by the fact of being American but by those of their ancillary characteristics that reduce them to a commodity: as a female American, a white American, a gay American, a black American, a Jewish American, a Native American, a swing-state American. The subordination of the noun to the adjective makes a mockery of the democratic premise, but it serves the marketing strategy of a campaign directed at the Electoral College, and it substitutes for a unified American or national interest an incoherent miscellany of state or special interests. Which is why the naming of the next president of the United States can turn not on a question important to the country as a whole but on a sentiment dear to the hearts of the Cuban Americans in the swing state of Florida.
3. Chicanery
As of late September the twenty-one swing states that the presidential sales directors believed to be "in play" (among them Florida, Tennessee, Wisconsin, Minnesota, Ohio, Virginia, and Missouri) accounted for a total of 216 electoral votes (80 percent of the number necessary to win the White House). Four years ago in many of those states the difference between the winning and losing percentage of the popular plurality was extremely small (.22 percent in Wisconsin, .01 percent in Florida), which, if the political parties hold true to form in this November's election, should greatly improve the odds in favor of theft and fraud. Of the 115 million votes likely to be cast on Election Day, 36 million will be punched into direct recording electronic systems (DREs) that provide no paper receipt and no possibility of a recount independent of the computers under the control of local election officials and the corporations hired to vouch for the result. The state Division of Elections in Florida already has ruled illegal any attempt to recount votes subject to dispute.
By doing away with the Electoral College we wouldn't cure all the ills that currently afflict the American democracy--the state of political paralysis that follows from the two-party system, unrepresentative government in the Senate, etc.--but at the very least we might make a beginning. The reform would strengthen what James Madison once called "the vital principle of republican government"---one man, one vote, the will of the majority, the belief that all of us have an equal say in the matter. We prove ourselves citizens of a democracy not by our winning of elections but by our agreeing to lose elections. The deal is hard to make, and the consent of the governed not freely given, unless we think ourselves participant in the election. If my vote doesn't count, I have no stake in the outcome, no reason to accept responsibility for, or acquire knowledge of, either the good or evil done in my name by the government in Washington. A CBS/New York Times poll taken in May 2003 (i.e., twenty months after the collapse of the World Trade Center and eight weeks after the invasion of Iraq) discovered 38 percent of the respondents refusing to regard George W. Bush as the legitimate president of the United States, a finding that accounts for a good deal of the rancor in this autumn's election campaign.
Since the inception of the republic, a central theme in the American political story has been the one about the further broadening of the electorate and thus the further democratization of the Constitution. The intention has been abetted and approved by politicians as distant from one another in time and place as Presidents James Madison and Andrew Jackson, Senators Estes Kefauver, Hubert Humphrey, and Margaret Chase Smith. Five of the seventeen amendments added to the Bill of Rights since 1791 have expanded the electorate--the Fifteenth in 1870 (extending the vote to former slaves), the Nineteenth in 1920 (presenting the vote to women), the Twenty-third in 1961 (granting the vote to residents of Washington, D.C.), the Twenty-fourth in 1964 (prohibiting poll taxes), and the Twenty-sixth in 1971 (welcoming voters to the polls at the age of eighteen). For the last fifty years the Gallup Poll has shown a clear majority of the American people in favor of a constitutional amendment dismantling the Electoral College; three years ago the poll reported "little question" on the part of the American public about going to "a direct popular vote for the presidency." In 1969 and again ten years later, the Congress nearly passed the necessary legislation, both attempts endorsed by strong majorities in the House but failing, narrowly, in the Senate.
Professor Edwards observes that for more than 200 years the country has survived the consequences of the variance between the popular and the electoral vote (the accession to the White House of Rutherford B. Hayes in 1876, of Benjamin Harrison in 1888), but I don't think that our luck is likely to hold for another three months, let alone another decade or century. In no prior election season can I remember talking to so many people who say, bitterly and seriously, that they intend to leave the country if their candidate fails to win the White House. Having lost faith in both the theory and practice of democratic self-government, they look upon the election in the manner of spectators at a bad play, amused or not amused by the whirl and spin of libel in the news media but believing themselves absent from the long and continuing American struggle (brave, dangerous, always against the odds) to secure a government of laws, not men.
Their indifference doesn't bode well for the country's future prospects, and maybe we should count ourselves fortunate if the November election results in stalemate, suspicion, and dispute. The circumstance would oblige us to rediscover the purpose and meaning of democracy, to realign our political thought, and therefore the Constitution, with circumstances far different from those existing in the late eighteenth century, to elect as president a man or woman representing the whole of our national identity rather than the smiling face of a focus-group Caesar or Napoleon striking heroic military poses in a swing-state shopping mall.
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