With all eyes on the Presidential election, many people have put their hatred of Congress at the back of their minds as the campaigns for House and Senate seats up for grabs in November haven’t really begun yet. Despite President Obama’s desire for bipartisanship, historians will look back at the ‘Obama Years’ as a period that has been the least productive in Congressional history.
As I have outlined in two previous pieces, there are many reasons for the gridlock that has come to define Washington politics, and this series of articles will finish by looking at the most emotive of all these factors; corruption. From the farcically gerrymandered Congressional districts to the corrupt campaign finance system that has existed since Citizens United, the American people have become only too familiar with the barefaced corruption of the US political system. It is this broken system that is one of the major causes of hostility towards Washington.
Gerrymandering is an interesting form of corruption because it is subtle and often ignored. If I were redrawing the Congressional districts I wouldn’t be taking people’s votes away, or changing the way people vote, or even need to tell people that the boundaries had changed. It is for these reasons that gerrymandering is dangerous. Because gerrymandering is often a gradual process, it is difficult to stop as it occurs at the state level, where fewer people are actively engaged with the political process.
As both parties have vested interests in maintaining the practice, of the states with more than one representative (43) the overwhelming majority (33) have their state legislatures decide on what the Congressional districts should be. This is clearly a recipe for corruption as the party in the majority in each state legislature will suggest boundaries that are favourable to their own party. In four states, Florida, New York, Iowa, and Maine, independent bodies decide what the redistricting should look like, but the state legislature votes on any suggestions, thus making the system totally pointless as, if the districts aren’t in the majority party’s interest, there is no reason for them to approve them.
The final seven states (California, Arizona, Hawaii, Montana, Washington, New Jersey, and Idaho) have established independent or bipartisan commissions to deal with the issue without partisan politics getting involved. Only one of these options is desirable. A bipartisan commission is not the same as an independent one. A bipartisan commission will enable both parties to collude with each other and engage in horse-trading in order to get gerrymandered districts for both sides. Only through independent commissions in every state or an independent federal agency will this practice be rooted out.
The problem of gerrymandering is that in order to tackle this structural problem with the American political system, a mass movement demanding a fairer set of Congressional districts is required. Unfortunately this is incredibly difficult to organise as most politically active voters are only concerned with core issues such as foreign policy and the economy. For many voters the intricacies of the American electoral isn’t enough to get people into the voting booth, let alone mobilise a legion of activists.
The second key reform of the US electoral system that is necessary to end Congressional gridlock is to exorcise the corrupting influence of money. In 2010 the Supreme Court’s decision in the Citizens United v. FEC case, which granted private corporations the same First Amendment rights as individuals, monetary contributions to campaigns became equated with free speech. This decision overruled two prior precedents established by the court: Austin v. Michigan Chamber of Commerce, which had upheld restrictions on corporate spending in political campaigns; and McConnell v. FEC which had upheld provisions in McCain-Feingold that restricted campaign spending by unions and corporations. More specifically McCain-Feingold had banned corporations and unions from funding ‘electioneering communications’ 30 days before a presidential primary and 60 before a general election. In more plain English, the decision meant that the cap that had been placed upon corporations’ donations to political candidates was abolished.
This Supreme Court decision enabled a huge influx of corporate money to flood into the US political system, and that has major consequences. The non-partisan think-tank United Republic released a graphic created by Jasper McChesney in 2014 that illustrated a disturbing fact. It found that in Congressional election races, the candidate with the most money wins 91% of the time. As a result of this startling fact, candidates in these races know that, because of Citizens United, they need to raise as much money as they can, for if they fail to do so their richer opponent will most likely defeat them.
As well as this initial desperation to be elected, there are ongoing consequences from having such laws in place. Although there is very little quid pro quo corruption (Candidate A promises to give Corporation B favours if you donate to them), there is an undercurrent present that gives the same result. If Candidate A receives $1 million from the fossil fuel industry, it is highly unlikely that that Congressperson will vote for higher taxes or tighter regulations on the fossil fuel industry. Again this is not because the corporation in question necessarily asked for special treatment, it is just that that Congressperson is aware that a vote to support higher taxes or increased regulation would result in those donations suddenly drying up.
The same is the case with the insistence of Democrats and Republicans that single-payer healthcare is a terrible idea because of the influence of insurance companies and the pharmaceutical industry; additional financial regulation is unnecessary because of the donations of Wall Street banks and investment companies; and mandatory minimum sentencing for non-violent crimes are important for society and have nothing to do with the large donations from private prison providers to state and Congressional legislators.
The solution to this problem is also difficult but there is a distinct possibility that it could happen in the next few years. There are two ways in which a Supreme Court decision can be overturned: the Court decides in another case to reverse their previous decision, or there is an amendment to the Constitution that expressly prevents money from being pumped into political campaigns. The most likely of the two to happen is the former because, due to the sudden death of Antonin Scalia, there is a vacancy on the Supreme Court which, if filled by a liberal appointee, would give the liberal wing of the Court a 5-4 majority to strike down the decision. Admittedly this would be difficult to do because it still requires having a Democrat elected to the White House, and for the Democrat to be willing to appoint a Justice that will definitely vote to reverse Citizens United.
The other way of overturning the decision is through a Constitutional amendment. In order to call a Convention either two thirds of both Houses of Congress have to call for one, which is unlikely when party co-operation is at an all-time low, or two-thirds of the state legislatures can call for a Convention by invoking Article V of the US Constitution: “the application of the legislatures of two thirds of the several states, shall call a Convention for proposing amendments, which […] shall be valid to all intents and purposes, as part of this Constitution”. Although this approach is so difficult that no Convention has ever been called as a consequence of Article V, the inactivity in Washington is so great that there is no chance of one being called by Congress.
While a short-term fix is needed to reverse the decision through the judicial method I’ve outlined above, a constitutional amendment is the only way that such a temporary fix could be made permanent. If Citizens United is reversed by a liberal Supreme Court, it could just as easily be reinstated by a conservative one.
I’ve chosen these two political phenomena because it illustrates, in a more practical sense, why nothing can get done in Congress, whereas my previous articles have been about more abstract concepts. These pieces haven’t touched upon the wider divisions in America such as political culture and the role of the media because that raises a whole new debate about whether America should move away from a consensus-based pluralist system to a more majoritarian approach.
In the short term Democrats need to elect a President who is willing to stand up to money in politics and will also encourage enough people to turnout in November to overcome the barriers that have been placed before them in the form of gerrymandered districts. I’ve said it before and I’ll say it again: Hillary Clinton is really not that candidate. On my personal blog I’ve written a number of pieces about why Clinton is a bad candidate and that Bernie Sanders would be much better for the Democratic Party.
At the end of the day if any of what I’ve outlined in these three pieces is going to happen, it will be because of a mass movement that demands fair elections, an end to gerrymandering, a constitutional amendment, and a return to Congress actually passing legislation. If the GOP do not want to play ball, the Democrats should endeavour to energise activists and make their co-operation unnecessary by getting majorities in both Houses.