One Way Forward (10 page)

1
The average federal tax burden in 2006 was 20.7 percent (Congressional Budget Office, Historical Effective Federal Tax Rates: 1979 to 2006 [April 2009],
http://www.cbo.gov/doc.cfm?index=10068
). The average state burden is 10.1 percent (“How Tax-Friendly Is Your State? Local and State Taxes Can Have a Big Impact on Your Take-Home Pay,” CNNMoney [citing a Tax Foundation report],
http://money.cnn.com/pf/features/lists/taxesbystate2005/#more
; accessed January 4, 2011). Thus, the average combined burden is 30.8 percent. Using this figure, I calculate the highest average after-tax expense to be housing, at 23.84 percent (Bureau of Labor Statistics news release, “Consumer Expenditures—2010” [September 27, 2011],
http://www.bls.gov/news.release/cesan.nr0.htm
). Laurence J. Kotlikoff and David Rapson argue that the effective burden at the lower rates is even higher; see “Does It Pay, at the Margin, to Work and Save? Measuring Effective Marginal Taxes on Americans’ Labor Supply and Saving,” National Bureau of Economic Research Working Paper no. 12533, December 2006.

2
The role of the Tea Party in these gains is contested, but Skocpol and Williamson are convincing in their argument that the Tea Party’s role was significant and important. See Theda Skocpol and Vanessa Williamson,
The Tea Party and the Remaking of American Conservatism
(2012), 158–161.

3
Mark Meckler and Jenny Beth Martin,
Tea Party Patriots: The Second American Revolution
(2012), 16.

4
Skocpol and Williamson,
Tea Party,
22.

5
Skocpol and Williamson,
Tea Party,
21.

6
Skocpol and Williamson,
Tea Party,
22.

7
Skocpol and Williamson,
Tea Party,
108.

8
Most surveys conclude that 55 to 60 percent of Tea Partiers are male (Skocpol and Williamson,
Tea Party,
42). They are “mainly white … married, older than 45, more conservative than the general population, and likely to be more wealthy and have more education” (“Tea Party movement,” Wikipedia,
http://en.wikipedia.org/wiki/Tea_Party_movement
, accessed January 12, 2012). Sixty-two percent of Tea Partiers call themselves conservative Republicans (Skocpol and Williamson,
Tea Party,
27–28).

9
“Grassroots activists, roving billionaire advocates, and right-wing media purveyors—these three forces, together, create the Tea Party and give it the ongoing clout to buffet and redirect the Republican Party” (Skocpol and Williamson,
Tea Party,
13).

10
Skocpol and Williamson,
Tea Party,
12.

11
Glenn H. Reynolds, “Tea Parties: Real Grassroots,”
New York Post,
April 13, 2009;
http://www.nypost.com/p/news/opinion/opedcolumnists/item_kjS1kZbRyFntcyNhDJFlSK
, accessed January 13, 2012.

12
“Occupy Wall Street,” Wikipedia,
http://en.wikipedia.org/wiki/Occupy_Wall_Street
, accessed January 12, 2012.

13
Skocpol and Williamson,
Tea Party,
32.

14
Pew Research Center, “Frustration with Congress Could Hurt Republican Incumbents” (December 15, 2011), 11.

15
Indeed, as I’ve traveled across the country to see these different groups, each of them has its own character. Occupy Seattle at the time I visited had become more militant. They had rejected an offer by the mayor to use City Hall, for fear of becoming “co-opted.” Occupy Boston seemed the most diverse, from drug addicts (living in a No Drugs Zone) to students to professionals, with a health clinic and stage with a mic thrown into the bargain.

16
Meckler and Martin,
Tea Party Patriots,
15.

17
Lawrence Lessig,
Remix: Making Art and Commerce Thrive in the Hybrid Economy
(2008), 24–25.

18
Meckler and Martin,
Tea Party Patriots,
19.

19
Meckler and Martin,
Tea Party Patriots,
19–20.

20
Paulina Borsook, “How Anarchy Works,”
Wired
3.10 (October 1995): 110.

21
Yochai Benkler,
The Wealth of Networks
(Yale University Press, 2007).

22
As an ABC News polling unit found, “views on extent of racism as a problem are not significant predictors of support for the Tea Party movement.” See “The NAACP, the Tea Party and the Question of Racism,” ABC News, July 12, 2010;
http://abcnews.go.com/blogs/politics/2010/07/the-naacp-the-tea-party-and-the-question-of-racism
.

23
Pew Research Center, “Network by the Numbers” (2011);
http://stateofthemedia.org/2011/network-essay/data-page-5
.

24
Pew Research Center for the People & the Press,
Beyond Red vs. Blue: The Political Typology
(2011), 42–43;
http://www.people-press.org/files/legacy-pdf/Beyond-Red-vs-Blue-The-Political-Typology.pdf
.

25
Pew Internet and American Life Project,
The Internet and Campaign 2010
(2010), 5;
http://pewinternet.org/~/media//Files/Reports/2011/Internet%20and%20Campaign%202010.pdf
.

26
Lawrence Lessig,
Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It
(2011), 97–99.

27
“This Day in History–Jan. 11, 1973: American League Adopts Designated Hitter Rule,” History.com,
http://www.history.com/this-day-in-history/american-league-adopts-designated-hitter-rule
(accessed January 4, 2011).

28
Joseph Durso, “Baseball’s 10th Man—Pioneer or Pigeon?”
The Saturday Evening Post,
July/August 1973, 20.

29
The first two statistics are found at OpenSecrets.org, Donor Demographics (2010);
http://www.opensecrets.org/bigpicture/donordemographics.php?cycle=2010
, accessed January 16, 2012. Contributions include those made to a party or to a PAC. Data originally drawn from the Center for Responsive Politics.

30
Jack Abramoff,
Capitol Punishment: The Hard Truth About Washington Corruption from America’s Most Notorious Lobbyist
(2011), 86.

31
Abramoff,
Capitol Punishment,
90.

32
Abramoff,
Capitol Punishment,
90.

33
Abramoff,
Capitol Punishment,
206.

34
Abramoff,
Capitol Punishment,
90.

35
Abramoff,
Capitol Punishment,
204.

36
Lessig,
Republic, Lost,
133.

37
Lessig,
Republic, Lost,
247.

38
Meckler and Martin,
Tea Party Patriots,
89.

39
I draw upon Bruce Ackerman and Ian Ayres for the “democracy voucher” idea. See
Voting with Dollars: A New Paradigm for Campaign Finance
(New Haven: Yale University Press, 2002). I describe the program more fully in Lessig,
Republic, Lost,
265–73 (2011).

40
Spencer Overton, “The Participation Interest,”
Georgetown Law Journal
6 (forthcoming, 2012).

41
See, for example, the Occupied Amendment, S.J. Res 33, 112th Cong. (2011); the Ellison Amendment, H.J. Res. 92, 112th Cong. (2011); the McGovern People’s Rights Amendment, H.J. Res 88, 112th Cong. (2011); and the Lyons Amendment from Vermont, J.R.S. 11, 2011–12 Leg. Sess. (Vt. 2011).

42
See, for example, the Yarmuth Amendment H.J. Res 97, 112th Cong. (2011); the Move to Amend Amendment (
http://movetoamend.org/amendment
, accessed January 2, 2012); and the Get Money Out Amendment (
http://www.getmoneyout.com
, accessed January 3, 2012).

43
Disclosure: I am a noncompensated member of the Advisory Board of Americans Elect.

44
“Icelandic Loan Guarantees Referendum, 2010,” Wikipedia,
http://en.wikipedia.org/wiki/Icelandic_loan_guarantees_referendum,_2010
(accessed January 13, 2012).

45
See
http://ohmygov.com/printfriendly.aspx?=7435
.

46
State Elections Enforcement Commission,
Citizens’ Election Program 2010: A Novel System with Extraordinary Results
2 (January 2011).

47
130 S.Ct. 876 (2010).

48
Dan Eggen, “Large Majority Opposes Supreme Court Decision,”
Washington Post,
February 17, 2010 (
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/17/AR2010021701151.html
).

49
558 U.S. ___ (2010), slip. Op. 90 (Stevens, J., dissenting).

50
Federalist
No. 52, at 328 (James Madison), Henry Cabot Lodge, ed. (G. P. Putnam’s Sons, 1888).

51
Both works, and any subsequent derivative, will be licensed under version 3.0 of the Creative Commons Attribution-ShareAlike, the same license that governs Wikipedia.

52
GNU/Linux, properly speaking, grew out of the Free Software Movement, and when it comes to software, and culture, my preference is that moniker over the more common “open-source.” But my purpose in this work is to describe the self-understanding of very different movements. All of them refer to “open-source” values.

53
Preambles haven’t had much success in our constitutional tradition (see, for example, the Court’s complete failure to pay attention to the Progress Clause perambulation), but you can’t fault a guy for trying. This aims at making it perfectly clear that the purpose of this amendment is to protect or better secure the independence of Congress and the Executive, by which I mean the proper dependence—as
Federalist
52 puts it—“upon the People alone.”

54
This is one of three critical changes: Public elections must be publicly funded. Precisely how is for Congress to determine. I prefer “small-dollar-funded elections,” such as the Fair Elections Now Act or what I’ve called the Grant and Franklin Project. The “at no less than” clause makes sure Congress doesn’t underfund the system (and thereby entrench the incumbents). “The equivalent of” is intended to index the amount to inflation.

55
Some good souls want to “Get Money Out.” I want to get
corrupting
money out. I am with Spencer Overton: Obama taught us the importance of getting small dollars in (even if that lesson seems to have been forgotten). So this part would preserve the participatory money while keeping out the corrupting money. “The equivalent of $100” again is meant to index the $100 to inflation. The most puzzling bit of this paragraph is the “non-anonymized” part. This is meant to leave it open to Congress to permit (truly) anonymous contributions. I know the intuition is that’s impossible. But as Ackerman and Ayres show, it’s quite possible. The proposal is complex, but the key is to make contributions revocable—so even if I can show you today that I contributed $5,000, tomorrow I can revoke it so you can’t be sure.

56
This is the part that responds to Citizens United. As I argue in 
Republic, Lost,
there was a kernel of truth in the Court’s decision: No one or thing—corporations, dolphins, or the Chinese—should be banned (or effectively so by being so burdened) from saying anything. Especially not nonprofit filmmakers like Citizens United, Inc. But that doesn’t mean that there is no legitimate corruption-related interest in limiting “independent” expenditures. Of course there is a fundamental difference between a Citizens United spending its money to promote its film about Hillary and an Exxon spending $100 million in an election. This clause recognizes that difference by giving Congress the power to limit “independent political expenditures”—whether corporate or individual—during the time around an election, whether “issue ads” or promoting/opposing a candidate.