Madison's Music (14 page)

Recognizing a democracy-friendly First Amendment would require the Court to take a second look at the function of big-tent major parties in a mass democracy. Once the two major parties were recognized as vaguely defined, shifting coalitions, the Court
would strike down yearlong ideological waiting periods for voting in a major-party primary but uphold efforts to open the nominating processes to the entire electorate.

The Court's failure to consider the democracy-reinforcing function of freedom of association has also made a shambles of the law governing minor parties. In a complex modern democracy, minor parties rarely elect candidates. By definition, they lack the mass support needed to win an election. But they do play the crucial function of injecting new ideas into the political process, forcing the major parties to react, by either assimilating them into the party platform or urging their rejection by the electorate. Freedom of association, properly understood as reinforcing democracy, could protect minor parties by assuring them inexpensive access to the ballot without depleting the funds needed for the campaign; allowing them to invite disaffected members of the major parties to participate in choosing protest candidates; and, most important, permitting them to cross-endorse major party candidates, allowing the supporters of a minor party to play a role in selecting the winner of an election while expressing support for the minor party's ideological position.

The robust third-party culture of the nineteenth century rested on ease of ballot access and the ability to cross-endorse. The Supreme Court has wiped out both, leaving a Republicrat cartel that stifles new ideas that might threaten the status quo. A Supreme Court willing and able to hear Madison's democratic music would use it to break the cartel, not reinforce it.

THE MODERN PETITION CLAUSE: ON SETTING DEMOCRATIC AGENDAS

The Supreme Court has virtually erased the Petition for a Redress of Grievances Clause from the modern First Amendment, insisting that it does no work that is not already done by an imperial Free Speech Clause that has simply swallowed the rest of the First Amendment.
⁸
The emergence of an imperial Free Speech Clause
that purports to supplant the separate clauses protecting free exercise, free press, freedom of assembly, and the right to petition is a classic example of how failure to hear Madison's music distorts First Amendment jurisprudence. If the seven truncated words of the Free Speech Clause do all the heavy lifting in all those areas, why did Madison bother with redundant press, assembly, and petition clauses?

In fact, each clause protects an essential phase of Madison's democratic narrative. The religion clauses protect the interior spaces of the mind, where an idea develops. Free speech protects its articulation; a free press, its mass dissemination. Freedom of association nurtures the idea's growth into a political movement, where free assembly takes over, protecting its mass mobilization. The Petition Clause concludes Madison's narrative, protecting the idea's introduction into the formal democratic lawmaking process, forcing the legislature to place the issue on its agenda.

The legislative agenda-setting function of the Petition Clause is a watered-down version of an even stronger idea considered and rejected by the Founders that would have permitted constituents to “instruct” legislators to take certain action. That was too much for Madison and his friends in the summer of 1789, but not before a full-dress debate considered and rejected the idea of “instruction.”
⁹
Instead, drawing on British parliamentary history, the Founders compromised on a “petition” mechanism to ensure that the legislature would be confronted by issues of great concern to constituents.

Viewed as the culmination of Madison's democratic narrative, the Petition Clause plays a crucial structural role, linking a vigorous private democratic culture protected by speech, press, association, and assembly to the formal processes of democratic lawmaking. Unlike the stronger idea of instruction, petition does not require legislators to vote one way or another. But properly understood, the Petition Clause does require the democratic legislature at least to
consider
issues of great importance to constituents. Although the Petition Clause has fallen on hard times these days, it played a major role in debates over slavery in the pre–Civil War
period. Beginning in 1831, Northern abolitionists adopted a British strategy and flooded Congress with petitions seeking legislative action limiting or abolishing slavery. In Britain, the petition process triggered an 1833 vote in the House of Commons abolishing slavery in most of the British Empire. In the United States, however, Congress was dominated by pro-slavery members, who used a series of blocking techniques—“gag rules”—to keep antislavery petitions from being read on the floor of the House. When John Quincy Adams, after serving as our sixth president from 1825 to 1829, was elected to the House in 1830, he became a champion of the petition process, almost starting a riot when he attempted to read a petition from twenty-two slaves seeking freedom. The petition movement crested in 1837 and 1838, when more than 130,000 petitions challenging slavery were lodged with Congress. The proslavery forces responded by enacting a House rule formally excluding the abolitionist petitions, overriding Adams's argument that the First Amendment required Congress to consider them. That in turn triggered a popular response, sweeping the antislavery Whigs into power for the first time. In 1844, Adams was successful in persuading Congress to abolish the gag rule, leading to intense legislative engagement that culminated in the Missouri Compromise banning slavery in the territories but allowing it to flourish in the South. The ban on slavery in the territories as part of a grand compromise seeking to avoid civil war was declared unconstitutional by the Supreme Court in 1857 in the infamous
Dred Scott
case, ending efforts to deal with slavery through democratic means and rendering the Civil War inevitable.

Under a Madisonian reading of the First Amendment, once the Petition Clause placed an item on the legislative agenda, Congress would be obliged to confront it. Properly understood, therefore, the clause is much more than just a colony of the imperial Free Speech Clause. Read as an integral part of the first stanza of Madison's poem, it could loosen the current gridlock in both houses of Congress. The Senate, grossly malapportioned by design, operates under a filibuster rule permitting forty-one senators representing
about 11 percent of the population to prevent a vote on the merits of legislation favored by representatives of 89 percent of the population. The House of Representatives currently operates under a self-imposed rule forbidding a vote on any legislation that has not been preapproved by a caucus of the majority party's members, currently allowing 118 House Republicans, many elected from gerrymandered districts, to prevent the 435-member House from voting on crucial legislation. Properly read, Madison's Petition Clause might well provide a popular mechanism to force up-and-down votes in both Houses, presenting the electorate with a clear voting record on which to judge their representatives at the next (contestable) election.

A MODEST NONCONSTITUTIONAL PROPOSAL FOR A SINGLE-TIER DEMOCRACY

We don't have to wait for a fifth Supreme Court vote to do something about our three-tier democracy. We can dance to a version of Madison's democratic music without the permission of judges. American democracy currently is dominated by the top 1 percent of the economic tree, those who privately fund the electoral process. We could eliminate the first tier tomorrow by publicly funding our elections. It costs money to buy access to the voters. It costs money to organize supporters. It costs money to run a campaign staff. Most of the time, we offload the expense to rich volunteers (individual and corporate) who are only too happy to cover the costs of democracy off the books because in return they get strings to pull like puppeteers. For many in the first tier, political spending is just another investment—with the chance of a massive economic return. Until we acknowledge that the cost of democracy should be an on-the-books expense requiring public funding of the campaign process, the first tier will continue to dominate our politics.

Although the Supreme Court has slammed the door on the most efficient public funding approach—matching funds geared to the amounts raised by privately funded candidates—it has left open
at least two approaches. First, we could provide a dollar-for-dollar electoral tax credit up to $250. That would give most people a free $250 to put into the democratic process without a government bureaucracy to collect or distribute the money. Imagine campaigns geared to persuading ordinary people to commit some or all of their tax-subsidized $250 to a candidate who promises to respond to
their
needs, instead of kowtowing to the 1 percent. Another approach might build on New York City's public campaign funding program. Since 1988, New York City has offered multiple matches of small donations as a form of campaign subsidy, enabling underfunded candidates to raise a significant campaign chest with a small donor base. In return, the candidate must agree to a generous spending cap. It works. In recent years, New York City campaigns have centered on issues, not overblown and expensive media spectacles. Unless his name is Bloomberg, one candidate rarely is able to dominate a campaign by dramatically outspending an opponent. And most important, the winner doesn't owe anything to moneyed interests.

Tax credits and multiple matches aren't the only ways to subsidize clean elections. Once we commit ourselves to eliminating electoral control by the first tier of supercitizens, the imagination of a free people will quickly show us the way to yet other techniques for public funding—including subsidized access to mass electronic media at or below market rates. It'd cost some money. But we'd get our democracy back.

The third tier of American democracy is the domain of the poor. Not long ago, poor people didn't vote because they couldn't afford the poll tax, because they were illiterate, because they were newcomers, because they didn't satisfy a property qualification, or because they were the wrong gender, color, or ethnicity. Today, although those formal barriers no longer exist, the folks at the bottom of America's economic ladder still do not vote in anything like their actual numbers, virtually surrendering their ability to use politics to improve their lot. We could eliminate the third tier entirely
by recognizing a civic duty to vote, similar to the duty to serve on juries, register for the draft, go to school, buy health insurance, become vaccinated, pay taxes, wear motorcycle helmets, or cooperate with the census. Australia, among a number of democracies that view voting as a civic duty, boasts voter turnouts of 95 percent. We have not reached 65 percent in a presidential election for more than a hundred years and often fall below 50 percent. A 61 percent turnout was cause for celebration in 2008. Turnout in the crucial 2010 legislative elections barely reached 40 percent. We celebrated another turnout in 2012 that barely topped 60 percent.

Defenders of the current system argue that imposing a legal duty to vote would violate the First Amendment. Once formal barriers to voting have been removed, opponents of compulsory voting argue that the decision not to vote is an individual's choice, entitled to as much respect as a decision to participate in the political process. There is, of course, great irony in arguing that the First Amendment guarantees the right
not
to vote but doesn't guarantee the right
to
vote. Despite the irony, though, it is true that any form of compulsory voting would risk forcing some nonvoters to act inconsistently with their political beliefs. In order to avoid such an unpalatable result, any civic duty to vote should have a convenient escape hatch, allowing an individual to opt out of voting merely by expressing a desire to do so. Once such an easy opt-out is made available, I see no constitutional problem in operating an opt-out voting process instead of the current opt-in model. After all, a legal system that has rejected constitutional challenges to military conscription, compulsory jury service, compulsory schooling, compulsory vaccination, compulsory health insurance, compulsory cooperation with the census, and compulsory taxation to support programs with which the taxpayer profoundly disagrees can hardly draw a principled line at a civic duty to vote, especially one that can be so easily trumped by a convenient opt-out. We know from our experience with activities ranging from joining class actions to participation in 401(k) retirement plans that opt-in systems
tend to yield low turnouts and that the turnout is lowest among the poor and less educated. And yet we insist upon operating an opt-in system for voting. A legislative switch to an opt-out system would virtually eliminate the third tier without violating anyone's First Amendment rights.

If the idea of compulsory voting is a little too Orwellian for your taste (even with a no-questions-asked opt-out clause), the size of the third tier can be dramatically decreased by lowering the hurdles associated with voting. No democracy makes it harder to vote than we do. We require prospective voters to carry out three preliminary tasks before casting a ballot. First, a prospective voter must ascertain the place and method of registering and voting. In years past, officials bent on preventing blacks from voting made it as hard as possible to find the registration office. Nowadays, nobody actually hides the registration office, but the radically decentralized nature of our election administration often makes it difficult to identify exactly where to go to register to vote, much less where to go to actually cast a ballot. Our bewildering array of precincts, election districts, and assembly districts can create an electoral maze. While great progress has been made in simplifying registration—postcard registration is now widely available, and the forms have been standardized in federal elections—the process of learning where to register and vote can seem daunting to a poor, unsophisticated person thinking about voting for the first time.