I chose the title with some care. “Reflections” is about all a person of my age has left, apart from the hope that they may cast some light on the future. The phrase “law-government” I have borrowed from a former law school colleague, Karl Llewellyn – one of the country’s great law school professors. It is intended to convey a government under law, where the governed through law have fashioned a voice in governing – what President Lincoln referred to as “government of the people, by the people, for the people”. That requires not just free elections but law which binds both the governors and the governed.. Our freedom and our prosperity rest on our acceptance of law and our willingness to abide by rules which we may or may not like but which we know we the people have the power both to enact and to change.
We often refer to this acceptance as the “rule of law”. We load government and private organizations with lawyers whose job is to ensure compliance with the law by those who govern and those who are governed alike. When lawyers advise clients, whether government officials or private entities, of ways in which the legal rules can be twisted or evaded, they are not doing their job and are harming our political system. That does happen and it is worth discussion. Lawyers are important actors in our political system just as doctors are in our health system.
Fixing problems in our political system is fundamental to finding solutions to on-going problems such as employment, education, global warming, immigration, fiscal responsibility, and so forth. Today there are some warning signals of problems in our political system which we ignore at our peril. The politicization of law is one. The increasing influence of money is another. The changed role of political parties is a third. Then there is the inability of our elected representatives to adopt meaningful solutions to long term problems rather than simply advocating ineffective, quick, painless measures which actually make the problems more difficult to resolve. I don’t think most American voters enjoy being treated like fools, but there are politicians and commentators who disagree with me Slogans make amusing bumper stickers but rarely if ever resolve real problems.
I hope to discuss many of these problems but my immediate interest is suggesting ways in which we might remove existing obstacles to rational argument and intelligent progress toward making government more effective but no less democratic,.. We need to fix the system so that it can deal responsibly with new technology, problems of waste of natural resources, and what on the surface appears to be changing values. Change is and always has been the reason for new laws but our values have remained pretty constant The pursuit of ideals and shared values is always a series of approximations, successes coupled with failures, in the on-going search for unachievable perfection. We depend on our political system to make possible those changes which move us in the right direction, not as fast as some desire but faster than others wish.
My focus on trying to fix the system gains urgency from polls which show an alarming lack of confidence in our political institutions, especially congress. When congress fails to deal with problems that failure causes distortions in our democratic system. The President in frustration claims increased executive powers to meet actual or imagined emergencies. Courts adjust their political neutrality in efforts to find at least partial solutions in the broad language of the Constitution. Those can be dangerous developments, distorting our democracy. The Founding Fathers did not want a powerful President replacing a powerful monarch. They did not want judges who decided cases based on results rather than process. They were right. But making such a political system work requires a political ethic we seem to have lost sight of too much of the time. Government is not a game where one party wins and the other loses. It is a process through which many seek to resolve common problems in ways which seem reasonable even to those who would prefer a somewhat different solution. Compromise is a dirty word only to those ideologues who believe they alone are in possession of eternal truth. The rest of us spend our energy seeking together the best solution collective reason can produce.
Fixing our political system does not require huge change or Constitutional amendment. I am convinced that we, as a people, are not nearly as divided as our political parties and political issue groups make it appear. Indeed, I think most of us share common values and differ only in how best to realize them. It is reprehensible for politicians to play on distrust, or fear, or anxiety to divide us further, ignoring our common interests, in efforts to promote a particular, often selfish, solution rather than searching for one which depends on reason rather than rhetoric, It is time to come together and ignore the shouts and threats of the political extremes of left and right. That may not be as hard as it appears.
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A workable starting point is to deal effectively with the influence of money in government. There is overwhelming public sentiment that money should not influence the formulation of public policy. But we tolerate a system which comes very close to permitting bribery in the form of campaign contributions and expensive political support in elections. Spending money to influence public policy in favor of special interests can be dangerous, and spending it to secure government favors promotes corruption. Free speech is essential to a free government when it takes place on a level playing field and is free from personal gain. But we cannot make it the monopoly of the rich and powerful. Other voices must be heard as well. Merit and money do not always go together, although, in fairness, they sometimes do.
The Supreme Court has made legislation regulating campaign money difficult but not impossible. It has made it clear that speech cannot be regulated by limiting the money used to implement it, recently going so far as to give organizations , including corporations, a. First Amendment right to spend funds in support of political speech. It is clear that it will not tolerate indirect limits on speech any more than direct ones. In that sense money talks when associated with speech; any regulation of speech is off limits.
It is not clear how far the Court will go on the other side of the equation. A majority obviously does not care about a level playing field but the Court has not yet held that congress cannot create one so long as it does not do so by curtailing or otherwise regulating speech. Public funding has not yet been prohibited by the Court although lower court decisions in Arizona and Connecticut have done so in slightly different contexts and may soon be heard on appeal by the Supreme Court. It is difficult to conceive a respectable rationale for the Court to find public funding without conditions a limitation on speech. The Arizona court found that it inhibited free speech because it “chilled” private financing of speech when the private party financing the speech knew its cost would be matched by public funds. But to say this, even assuming it to be true, is fatuous and reveals a strange view of free speech. Speech may be less politically effective if others are enabled to rebut its contentions or suggest better alternatives but that has nothing to do with regulating its content or its merit. The political effectiveness of speech should not be determined by the wealth of the speaker; he has the right to spend his money in support of his speech, or to determine it is not worth the expense.. If congress wishes to create a level playing field to promote speech, free of government control, by others irrespective of their political persuasion, no one is prevented from expressing his/ or her views or seeking to persuade others of their merits whatever the funding source.
In drafting such legislation Congress would have to be very careful not to curtail private funding in any way (most public funding proposals prohibit raising private money) and to be clear that the rules pertaining to public funding are totally neutral and non-partisan. I suggest that candidates be permitted to raise funds without limitation, but that after a specified amount the government will match all additional funds to the other candidate or candidates. Independent or third-party candidates should be eligible if they raise the funds required as well as whatever support is necessary for a place on the ballot. In addition, matching funds should be provided for third party support for a candidate as though directly contributed to the campaign. Congress should spell out in simple terms when such support qualifies; for example when a candidate is named or otherwise identified by promoting an issue on which there is disagreement among the candidates. Delays in providing matching funds should be avoided by eliminating any discretion in deciding when payment should be made and substituting heavy civil and/or criminal penalties on the candidate for any misstatements on applications. Such details are simple to draft; what is important is to keep them clear, neutral and rigorously non-partisan, avoiding all political temptations to tip the balance.
I would make such a law applicable to general elections only at this time. There are obvious problems with single issue groups and low voter turnout in primaries, but political parties should be able to cope with such problems and should e given he opportunity to do so.
Such a law would go a long way toward restoring a responsible and responsive congress. It would free members not only from dependence on funders in determining their votes but it would lessen the power of political parties to control members. Lessening that power of the parties would tend to reestablish the bipartisanship needed to have government from the center rather than the fringes of left and right who now often determine party positions on many issues. It would weaken, not destroy, party influence since members would still find it necessary to have an ideological home which is, by and large, consistent with their own beliefs and those of their constituents. It would, too, weaken the power of committee chairs, whose influence with committee members often is related to their ability to give and steer political contributions to their juniors. Obviously it would weaken the political influence of the rich to promote policies favoring the wealthy. It would help reduce political corruption.
Almost certainly the general public would support such legislation but it would have very powerful opposition from all who profit from the present system. It would be opposed by both political parties; by most single issue groups; by senior members of both houses of congress whose very seniority gives them access to money and the power that accompanies it; and obviously by lobbyists and all the special interests who depend on their influence and finance their activities. I suspect these formidable opponents would argue the costs of public financing and the dangers of government involvement. While I suspect there are many members on both sides of the aisle who are sick and tired of the financial burdens of money raising and concerned by the political influence of the rich and powerful, I doubt many would risk support of party leaders.
The issue is far too important to give up to the power of money. If President Obama were seek such a law it would have a chance of passage. He could neutralize his own political party and make it a popular issue in his campaign for reelection. It is consistent with views he has expressed and it could become an honest explanation for the failure of some important legislation. In addition, the huge amounts of private money which will be spent in this year’s congressional elections should provide a colorful background. By most contemporary standards the public costs of matching private funds are trivial. In any event, a simple tax would cover them; for example, a 1% tax on corporate revenues of more than 100 million dollars..
Getting the influence of money out of politics is not easy and would require real leadership. I think if the President took the issue on he would find he support he would need for legislation
