The Arendt Center recently hosted Professor Zephyr Teachout to speak about Citizens United v. FEC and campaign finance reform. The talk was in honor of Constitution Day, which Professor Teachout joyfully informed us may very well be unconstitutional. We carried on.
Teachout began her talk by announcing that the "First Amendment is a terrible thing." Less provocatively, she argues that the First Amendment plays a "dangerous role" in our constitutional culture. Above all, she presented her argument that the Supreme Court's increasing reliance on the First Amendment to invalidate campaign finance laws is, ironically, used to shut down meaningful public debate around the proper role of lobbying in our politics.
She began by telling a story of the Supreme Court case Trist v. Child from 1874. The case involves Mr. Trist who had a claim against the U.S. Government for about $15,000 (about $100,000 in current dollars). Trist hired Child, a lawyer, to represent him and convince Congress to honor its debt. Among other things, Child encouraged Trist to have his friends write to Congressman threatening not to vote for them if they didn't honor this debt to Trist. Child also personally lobbied Congressman. He eventually succeeded in getting Congress to appropriate Trist's money.
Trist, however, refused to pay Child the fee agreed to in their contract. Child sued Trist to get his agreed upon money.
In the Supreme Court decision refusing to enforce the contract, the Court holds that Trist need not pay Child; a number of reasons are given, a few very technical. But the majority of the opinion by Justice Swayne rejects the legality of lobbying with a broad brush. Trist need not honor his contract with Child, Swayne writes, because there was no valid contract. In short, the original contract hiring Child as a lobbyist was immoral and illegal, and thus unenforceable. Justice Swayne argues that the very immorality of the practice of lobbying nullifies the contract between Trist and Child.
Teachout helpfully describes the issue this way. Child says something like: Our contract was just like a contract for me to sell you a car and now you don't want to pay me for the car now that you have it. Trist responds that, in Teachout's colorful analogy,
No, this is like we made a contract for prostitution, and you can't go to the cops after we made a contract for prostitution and get them to enforce that contract. Because lobbying is like prostitution. It is so corrupt that there is no way courts are going to enforce it.
Writing for the Supreme Court, Justice Swayne puts it this way:
The agreement in the present case was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right in such circumstances to put himself in a position of temptation to do what is regarded as so pernicious in its character. The law forbids the inchoate step, and puts the seal of its reprobation upon the undertaking.
If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous.
There are two remarkable things about Justice Swayne's argument. First, as Teachout notes in her talk, there was nothing remarkable about it in 1874. Many states and governments throughout the U.S. made lobbying illegal. It was seen as an act of corruption. And few if any courts in the U.S. would find this unusual, at least before the turn of the 20th century.
The second remarkable thing to note is how utterly remarkable Justice Swayne's argument is today. To speak of the millions of lobbyists in the US as "adventurers who make market of themselves" as offending the "moral sense of every right-minded man" is a painful reminder of how far our political system has fallen. Not only is the moral prohibition against lobbying something of the past, but also the idea that the Supreme Court would invalidate contracts based on lobbying is nearly unimaginable.
The reason for this change in the legal and even moral status of lobbying is, Teachout argues, the rise of free-speech jurisprudence in the 20th century. Specifically, the Court's acceptance of the basic claim freedom of speech is the fundamental foundation of our democratic system has made lobbying not only legal, but morally defensible. If democracy depends on a marketplace of ideas, then having corporations and individuals hire lawyers and public relations firms to buy and sell influence in politics is at the very foundation of democratic governance. What Teachout forces us to consider is that our elevation of the First Amendment to foundational status in our constitutional firmament is predicated on a political theory that founds democracy on the unfettered marketplace of ideas. If we are to take back our government from corporate adventurers and their lobbyists, we will need to rethink our commitment to free speech, at least as the Court currently understands it.
Teachout's provocative talk attacks less freedom of speech itself than the Court's elevation of free speech to the first amongst all constitutional provisions—the foundational right in our constitutional and democratic system. She traces the rise of free speech jurisprudence to the point where, today, free speech is the paradigmatic right in our democracy. Free speech has become equated with democracy, so that "free speech is democracy."
It is important to see that Teachout is really pointing out a shift between two alternate political theories. First, she argues that for the founders and for the United States up until the mid-20th century, the foundational value that legitimates our democracy is the confidence that our political system is free from corruption. Laws that restrict lobbying or penalize bribery are uncontroversial and constitutional, because they recognize core—if not the core—constitutional values.
Second, Teachout sees that increasingly free speech has replaced anti-corruption as the foundational constitutional value in the United States. Beginning in the 20th century and culminating in the Court's decision in Citizens United, the Court gradually accepted the argument that the only way to guarantee a legitimate democracy is to give unlimited protection to the marketplace of idea. Put simply, truth is nothing else but the product of free debate and any limits on debate, especially political debate, will delegitimize our politics.
This view that free speech is the fundamental bastion of democracy is the basis of Justice Kennedy's decision in Citizens United. In Kennedy's opinion, laws regulating campaign finance regulate speech, and not just force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." If we believe that fair elections require a free airing of all opinions, than restrictions on campaign finance are the most dangerous forms of censorship. Which is why Kennedy can worry that "The censorship we now confront is vast in its reach."
What he means is that all those corporations regulated by the campaign finance reform law invalidated by Citizens United—including large multinationals and also small mom and pop stores and even unions and non-profit corporations—are prohibited from expressing their views about political candidates during an election. In Kennedy's telling, corporations are part of the country and, what is more, an important part of the country. The Government has “muffle[d] the voices that best represent the most significant segments of the economy."
It is helpful to recall Justice Felix Frankfurter's concurring opinion in U.S. v. Congress of Industrial Organizations. The Smith Act had forbidden unions to use funds to pay for politicking, very much like the limitations on corporate funding in the 2002 Bipartisan Campaign Reform Act. In U.S. v. CIO, the Court refused to rule on the Constitutional question of whether the Congress can forbid unions from political speech. Frankfurter, however, does consider it. He argues that we must take seriously the evil of corporate and union speech in politics. The corruption of elections and federal officials by the expenditure of large masses of aggregated wealth But that evil, he counters, "is not one unmixed with good." For Frankfurter,
To say that labor unions as such have nothing of value to contribute to that process and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing interrelationship in modern society.
Replace "Labor unions" with "corporations." That is what Justice Kennedy did in Citizens United. What he said is that corporations have a voice in our political landscape, just as do unions and non-profits. When such corporate entities engage in speech, there is a danger of corruption. But we cannot deny their speech is politically important. Instead of then balancing those interests in a practical way, Justice Kennedy simply said that the First Amendment insists that political speech never be abridged. Our Constitutional system, he argued, demands that the marketplace of ideas be allowed to work unimpeded.
The overriding desire to protect political speech proceeds under the assumption, with Oliver Wendell Holmes Jr., that "the best test of truth is the power of the thought to get itself accepted in the competition of the market.” What Zephyr Teachout helps to make clear is that this elevation of free-speech to the first amongst constitutional provisions is fundamentally at odds with the desire to regulate political speech to keep politics free from corruption. If we want to get serious about fighting corruption in politics, we need to take seriously the need to question the now unquestionable faith that democracy is founded upon freedom of speech.
To fight against Citizens United and uphold the legal rejection of campaign finance limitations requires that we break the bi-partisan stranglehold that an extreme view of the First Amendment currently has on our constitutional jurisprudence. Only once we do so can we return to a meaningful public debate about when lobbying is and when it is not corrupting. And only once we free campaign finance laws from the First Amendment can we, as we must, have a serious discussion about how much money distorts and corrupts our political process.
These are difficult issues, and weakening the scope and impact of the First Amendment is risky. As Teachout argues, it is a risk we must take to save our democratic system.
The gap between our citizens and our Government has never been so wide. The people are looking for honest answers, not easy answers; clear leadership, not false claims and evasiveness and politics as usual.
-Jimmy Carter, July 15, 1979
Contemporary observers of secondary education have appropriately decried the startling lack of understanding most students possess of the American presidency. This critique should not be surprising. In textbooks and classrooms across the country, curriculum writers and teachers offer an abundance of disconnected facts about the nation’s distinct presidencies—the personalities, idiosyncrasies, and unique time-bound crises that give character and a simple narrative arc to each individual president. Some of these descriptions contain vital historical knowledge. Students should learn, for example, how a conflicted Lyndon Johnson pushed Congress for sweeping domestic programs against the backdrop of Vietnam or how a charismatic and effective communicator like Ronald Reagan found Cold War collaboration with Margaret Thatcher and Mikhail Gorbachev.
But what might it mean to ask high school students to look across these and other presidencies to encourage more sophisticated forms of historical thinking? More specifically, what might teachers begin to do to promote thoughtful writing and reflection that goes beyond the respective presidencies and questions the nature of the executive office itself? And how might one teach the presidency, in Arendtian fashion, encouraging open dialogue around common texts, acknowledging the necessary uncertainty in any evolving classroom interpretation of the past, and encouraging flexibility of thought for an unpredictable future? By provocatively asking whether the president “matters,” the 2012 Hannah Arendt Conference provided an ideal setting for New York secondary teachers to explore this central pedagogical challenge in teaching the presidency.
Participants in this special writing workshop, scheduled concurrently with the conference, attended conference panels and also retreated to consider innovative and focused approaches to teaching the presidency.
Conference panels promoted a broader examination of the presidency than typically found in secondary curricula. A diverse and notable group of scholars urged us to consider the events and historical trends, across multiple presidencies, constraining or empowering any particular chief executive. These ideas, explored more thoroughly in the intervening writing workshops, provoked productive argument on what characteristics might define the modern American presidency. In ways both explicit and implicit, sessions pointed participants to numerous and complicated ways Congress, the judiciary, mass media, U.S. citizens, and the president relate to one another.
This sweeping view of the presidency contains pedagogical potency and has a place in secondary classrooms. Thoughtful history educators should ask big questions, encourage open student inquiry, and promote civic discourse around the nature of power and the purposes of human institutions. But as educators, we also know that the aim and value of our discipline resides in place-and time-bound particulars that beg for our interpretation and ultimately build an evolving understanding of the past. Good history teaching combines big ambitious questions with careful attention to events, people, and specific contingencies. Such specifics are the building blocks of storytelling and shape the analogies students need to think through an uncertain future.
Jimmy Carter’s oval office speech on July 15, 1979, describing a national “crisis of confidence” presented a unique case study for thinking about the interaction between American presidents and the populations the office is constitutionally obliged to serve. Workshop participants prepared for the conference by watching the video footage from this address and reading parts of Kevin Mattson’s history of the speech. In what quickly became known as the “Malaise Speech,” Carter attempted a more direct and personal appeal to the American people, calling for personal sacrifice and soul searching, while warning of dire consequences if the nation did not own up to its energy dependencies. After Vietnam and Watergate, Carter believed, America needed a revival that went beyond policy recommendations. His television address, after a mysterious 10-day sequestration at Camp David, took viewers through Carter’s own spiritual journey and promoted the conclusions he drew from it.
Today, the Malaise Speech has come to symbolize a failed Carter presidency. He has been lampooned, for example, on The Simpsons as our most sympathetically honest and humorously ineffectual former president. In one episode, residents of Springfield cheer the unveiling of his presidential statue, emblazoned with “Malaise Forever” on the pedestal. Schools give the historical Carter even less respect. Standardized tests such as the NY Regents exam ask little if anything about his presidency. The Malaise speech is rarely mentioned in classrooms—at either the secondary or post-secondary levels. Similarly, few historians identify Carter as particularly influential, especially when compared to the leaders elected before and after him. Observers who mention his 1979 speeches are most likely footnoting a transitional narrative for an America still recovering from a turbulent Sixties and heading into a decisive conservative reaction.
Indeed, workshop participants used writing to question and debate Carter’s place in history and the limited impact of the speech. But we also identified, through primary sources on the 1976 election and documents around the speech, ways for students to think expansively about the evolving relationship between a president and the people. A quick analysis of the electoral map that brought Carter into office reminded us that Carter was attempting to convince a nation that looks and behaves quite differently than today. The vast swaths of blue throughout the South and red coastal counties in New York and California are striking. Carter’s victory map can resemble an electoral photo negative to what has now become a familiar and predictable image of specific regional alignments in the Bush/Obama era. The president who was elected in 1976, thanks in large part to an electorate still largely undefined by the later rise of the Christian Right, remains an historical enigma. As an Evangelical Democrat from Georgia, with roots in both farming and nuclear physics, comfortable admitting his sins in both Sunday School and Playboy, and neither energized by or defensive about abortion or school prayer, Carter is as difficult to image today as the audience he addressed in 1979.
It is similarly difficult for us to imagine the Malaise Speech ever finding a positive reception. However, this is precisely what Mattson argues. Post-speech weekend polls gave Carter’s modest popularity rating a surprisingly respectable 11-point bump. Similarly, in a year when most of the president’s earlier speeches were ignored, the White House found itself flooded with phone calls and letters, almost universally positive. The national press was mixed and several prominent columnists praised the speech. This reaction to such an unconventional address, Mattson goes on to argue, suggests that the presidency can matter.
Workshop participants who attended later sessions heard Walter Russell Mead reference the ways presidents can be seen as either transformative or transactional. In many ways, the “malaise moment” could be viewed as a late term attempt by a transactional president to forge a transformational presidency. In the days leading up to the speech, Carter went into self-imposed exile, summoning spiritual advisors to his side, and encouraging administration-wide soul searching. Such an approach to leadership, admirable to some and an act of desperation to others, defies conventions and presents an odd image of presidential behavior (an idea elaborated on by conference presenter Wyatt Mason). “Malaise” was never mentioned in Carter’s speech. But his transformational aspirations are hard to miss.
In a nation that was proud of hard work, strong families, close-knit communities, and our faith in God, too many of us now tend to worship self-indulgence and consumption. Human identity is no longer defined by what one does, but by what one owns. But we've discovered that owning things and consuming things does not satisfy our longing for meaning. We've learned that piling up material goods cannot fill the emptiness of lives which have no confidence or purpose.
It is this process—the intellectual act of interpreting Carter and his [in]famous speech as aberrant presidential behavior—that allows teachers and their students to explore together the larger question of defining the modern presidency. And it is precisely this purposeful use of a small number of primary sources that forces students to rethink, through writing and reflection, the parameters that shape how presidents relate to their electorate. In our workshop we saw how case studies, in-depth explorations of the particulars of history, precede productive debate on whether the presidency matters.
The forgotten Carter presidency can play a disproportionately impactful pedagogical role for teachers interested in exploring the modern presidency. As any high school teacher knows, students rarely bring an open interpretive lens to Clinton, Bush, or Obama. Ronald Reagan, as the first political memory for many of their parents, remains a polarizing a figure. However, few students or their parents hold strong politically consequential opinions about Carter. Most Americans, at best, continue to view him as a likable, honest, ethical man who is much more effective as an ex-president than he was as president.
Workshop participants learned that the initial support Carter received after the Malaise Speech faded quickly. Mattson and some members of the administration now argue that the President lacked a plan to follow up on the goodwill he received from a nation desiring leadership. Reading Ezra Klein, we also considered the possibility that, despite all the attention educators give to presidential speeches (as primary sources that quickly encapsulate presidential visions), there is little empirical evidence that any public address really makes much of a difference. In either case, Carter’s loss 16 months later suggests that his failures of leadership both transformational and transactional.
Did Carter’s speech matter? The teachers in the workshop concluded their participation by attempting to answer this question, working collaboratively to draft a brief historical account contextualizing the 1979 malaise moment. In doing so, we engaged in precisely the type of activity missing in too many secondary school classrooms today: interrogating sources, corroborating evidence, debating conflicting interpretations, paying close attention to language, and doing our best to examine our underlying assumptions about the human condition. These efforts produced some clarity, but also added complexity to our understanding of the past and led to many additional questions, both pedagogical and historical. In short, our writing and thinking during the Arendt Conference produced greater uncertainty. And that reality alone suggests that study of the presidency does indeed matter.
Stephen Mucher is assistant professor of history education in the Master of Arts in Teaching Program at Bard College.
The workshop, Teaching the American Presidency, facilitated by Teresa Vilardi and Stephen Mucher, sponsored by the Institute for Writing and Thinking and Master of Arts in Teaching Program in collaboration with the Hannah Arendt Center at Bard College was offered as part of the Center’s 2012 conference, “Does the President Matter? American Politics in an Age of Disrepair.”
The crisis must matter.
The most important divide in political and intellectual life today is between those who see society undergoing a transformative crisis and others who believe that the basic structures the 20th century industrial welfare state will persist.
The divide over how to understand the crisis of our times was front and center at the recent Hannah Arendt Center conference "Does the President Matter? A Conference on the American Age of Political Disrepair."
A number of speakers worried about the language of crisis. They rightly see talk about a "crisis" as code for an attack on the institutions of the welfare state. It can be an excuse to not only scale back the unsustainable aspects of our entitlement programs, but also to lower taxes on the wealthiest Americans while doing so.
It is true that many want to misuse the crisis as an attack on the poor and the middle class; that potential abuse, however, is not an excuse to deny the fact of the crisis itself. It is simply no longer possible to responsibly deny that we are living through a transformative crisis that will change the character of America and much of the world. The drivers of that crisis are many and include technology and globalization. The effects are profound and won't be fully understand for decades. At present, the first consequence is a crisis of institutional authority.
We in the US have indeed lost faith in our basic institutions. We don't trust scientists who warn us about global warming; we doubt economists who warn us about debt; we deny doctors who tell us that vaccines are safe. Very few people trust politicians or Ph.D.'s anymore. In fact, according to a 2009 General Social Survey, there are only two institutions in the United States that are said to have "A great deal" of confidence from the American people: the military and the police. This faith in the men with guns is, as Christopher Hayes writes in The Twilight of the Intellectuals, deeply disturbing. But it is not an illusion.
According to John Zogby, who spoke at the Hannah Arendt Center Conference last weekend, the crisis of faith in institutions is widespread and profound. Zogby said:
We call this the greatest economic crisis since the Great Depression and it is. But this is much more than that. This is a transformational crisis. Much more than simply the Great Depression, this is equivalent on the global stage to the fall of the Roman Empire. To the demise of Feudalism. What we have at this moment in time is a myriad—if not almost all—of our familiar institutions unprepared to deal with multiple crises all at once. Whether it is the federal Government or the near bankrupt states or the Democratic Party or the Republican Party or the banking institutions or the brick and mortal halls of higher education. Whether it is the Boy Scouts of America or the Roman Catholic Church, a number of our institutions that make up the superstructure of our society are simply unprepared to deal with the force of change, where we find ourselves.
Zogby was not the only speaker at our conference who noted that "our minds as well as our institutions have not caught up with the failure that they represent." Tracy Strong pointed to the outdated capacity of political primaries and Jeffrey Tulis spoke of the ways that Congress has, over the last century, increasingly abdicated its governmental and constitutional responsibilities. Institutions today spend more resources on self-sustenance (like fund raising) than on problem solving. Today our most important institutions are not only unable to solve the problems we face; the institutions have themselves become the problem.
Walter Russell Mead compared our current period to that era of American politics between 1865 and 1905. Mead noted that few people can name the presidents in that period not because of a failure of leadership but, rather, because in that period the U.S. was going through a cultural and societal transformation from, on one level, an agrarian to an urban-industrial society. We today are experiencing something equally if not more disruptive with globalization, technology, and the Internet. It is a mistake, Mead argued, to think that government or any group can understand and plan for such profound changes. There will be dislocations and opportunities, most of which are invisible today. While Mead offered optimism, he made clear that the years before the new institutions of the future emerge will be difficult and at times dark. There is little a president or a leader can do to change that.
Todd Gitlin and Anne Norton spoke of Occupy Wall Street and also the Tea Party as U.S. movements founded upon the loss of political and institutional power. Gitlin began with the widely quoted quip that the system is not broken, its fixed, an expression that feeds upon the disaffection with mainstream institutions. Norton especially noted the difficulties of a movement that at once decries and yet needs governmental power. The one constant, she rightly noted, is that in a time of institutional decay, those with the least to lose will lose the most.
Rick Falkvinge, founder of the Swedish Pirate Party, situated his party precisely in the space of institutional distrust that Mead and Zogby described. Falkvinge noted that the primary value held by 17 year-olds today is openness and transparency, which he distinguished from free speech. While free speech respects the rights of government and the media to regulate and curate speech, the radical openness embodied by the new generation is something new. The Pirate parties, for example, follow the rule of three. If three members of the Party agree on a policy, then that policy can be a platform of the party. There is no hierarchy; instead the party members are empowered to act. Like Wikileaks, with which it has strong affinities, the Pirate Party is built upon a profound distrust of all institutional power structures that might claim the authority to edit, curate, or distill what ought to be published or how we should govern ourselves.
Hannah Arendt wrote frequently about crises. "A crisis," she saw, "becomes a disaster only when we respond to it with preformed judgments, that is, with prejudices." The recent Arendt Center Conference sought to think about one particular crisis, namely the crisis of leadership in responding to the various crises that beset our age. It was born from the sense that we are increasingly confronting problems before which we cower helpless.
There are, of course, dangers and pitfalls in leadership. I too worry about calls for a leader to redeem us. That said, the coming seismic shifts in our world will bring great pain amidst what may be even greater opportunity. Without a workable political system that can recognize and respond to the coming changes with honesty and inspiration, chances are that our crises will morph into a disaster. Our President must matter, since men rarely accomplish anything meaningful without it. How a president might matter, was the theme of the two day conference.
If you missed the conference, or if you just want to review a few of your favorite talks, now is your chance. The Conference proceedings are online and can be found here. They are your weekend "read".
“Hence it is not in the least superstitious, it is even a counsel of realism, to look for the unforeseeable and unpredictable, to be prepared for and to expect “miracles” in the political realm. And the more heavily the scales are weighted in favor of disaster, the more miraculous will the deed done in freedom appear.”
—Hannah Arendt, What is Freedom?
This week at Bard College, in preparation for the Hannah Arendt Center Conference "Does the President Matter?", we put up 2 writing blocks around campus, multi-paneled chalkboards that invite students to respond to the question: Does the President Matter? The blocks generated quite a few interesting comments. Many mentioned the Supreme Court. Quite a few invoked the previous president, war, and torture. And, since we are at Bard, others responded: it depends what you mean by matters.
This last comment struck me as prescient. It does depend on what you mean by matters.
If what we mean is, say, an increasing and unprecedented power by a democratic leader not seen since the time of enlightened monarchy, the president does matter. We live in an age of an imperial presidency. The President can, at least he does, send our troops into battle without the approval of Congress. The President can, and does, harness the power of the TV, Internet, and twitter to bypass his critics and reach the masses more directly than ever before. The president can, and does, appoint Supreme Court Justices with barely a whimper from the Senate; and the president’s appointments can, and do, swing the balance on a prisoner’s right to habeas corpus, a woman’s right to choose, or a couple’s right to marry.
And yet, what if by matter, we mean something else? What if we mean, having the power to change who we are in meaningful ways? What if by matter we mean: to confront honestly the enormous challenges of the present? What if by matter we mean: to make unpredictable and visionary choices, to invite and inspire a better future?
On the really big questions—the thoughtless consumerism that degrades our environment and our souls; the millions of people who have no jobs and increasingly little prospect for productive employment; the threat of devastating terrorism; and the astronomical National Debt: 16 trillion and counting for the US. -- That is $140,000 for each taxpayer. -- Add to that the deficiency in Public Pension Obligations (estimated at anywhere from $1 to $5 trillion.) Not to mention the 1 trillion dollars of inextinguishable student debt that is creating a lost generation of young people whose lives are stifled by unwise decisions made before they were allowed to buy a beer.
This election should be about a frank acknowledgement of the unsustainability of our economic, social, and environmental practices and expectations. We should be talking together about how we should remake our future in ways that are both just and exciting. This election should be scary and exciting. But so far it’s small-minded and ugly.
Around the world, we witness worldwide distrust and disdain for government. In Greece there is a clear choice between austerity and devaluation; but Greek leaders have saddled their people with half-hearted austerity that causes pain without prospect for relief. In Italy, the paralysis of political leaders has led to resignation and the appointment of an interim technocratic government. In Germany, the most powerful European leader delays and denies, trusting that others will blink every time they are brought to the mouth of the abyss.
No wonder that the Tea Party and Occupy Wall Street in the US, and the Pirate Parties in Europe share a common sense that liberal democratic government is broken. A substantial—and highly educated—portion of the electorate has concluded that our government is so inept and so compromised that it needs to be abandoned or radically constrained. No president, it seems, is up to the challenge of fixing our broken political system.
Every President comes to Washington promising reform! And they all fail. According to Jon Rauch, a leading journalist for The Atlantic and the National Journal, this is inevitable. He has this to say in his book Government's End:
If the business of America is business, the business of government programs and their clients is to stay in business. And after a while, as the programs and the clients and their political protectors adapt to nourish and protect each other, government and its universe of groups reach a turning point—or, perhaps more accurately, a point from which there is no turning back. That point has arrived. Government has become what it is and will remain: a large, incoherent, often incomprehensible mass that is solicitous of its clients but impervious to any broad, coherent program of reform. And this evolution cannot be reversed.
On the really big questions of transforming politics, the President is, Rauch argues, simply powerless. President Obama apparently agrees. Just last week he said, in Florida: "The most important lesson I've learned is that you can't change Washington from the inside. You can only change it from the outside."
A similar sentiment is offered by Laurence Lessig, a founding member of Creative Commons. In his recent book Republic 2.0, Lessig writes:
The great threat today is in plain sight. It is the economy of influence now transparent to all, which has normalized a process that draws our democracy away from the will of the people. A process that distorts our democracy from ends sought by both the Left and the Right: For the single most salient feature of the government that we have evolved is not that it discriminates in favor of one side and against the other. The single most salient feature is that it discriminates against all sides to favor itself. We have created an engine of influence that seeks not some particular strand of political or economic ideology, whether Marx or Hayek. We have created instead an engine of influence that seeks simply to make those most connected rich.
The system of influence and corruption through PACs, SuperPacs, and lobbyists is so entrenched, Lessig writes, that no reform seems plausible. All that is left is the Hail Mary idea of a new constitutional convention—an idea Lessig promotes widely, as with his Conference On the Constitutional Convention last year at Harvard.
For Rauch on the Right and Lessig on the Left, government is so concerned with its parochial interests and its need to stay in business that we have forfeited control over it. We have, in other words, lost the freedom to govern ourselves.
The question "Does the President Matter?" is asked, in the context of the Arendt Center conference, from out of Hannah Arendt's maxim that Freedom is the fundamental raison d'etre of politics. In "What is Freedom?", Arendt writes:
“Freedom is actually the reason that men live together in political organization at all. Without it, political life as such would be meaningless. The raison d’être of politics is freedom.”
So what is freedom? To be free, Arendt says, is to act. Arendt writes: "Men are free as long as they act, neither before nor after; for to be free and to act are the same.”
What is action? Action is something done spontaneously. It brings something new into the world. Man is the being capable of starting something new. Political action, and action in general, must happen in public. Like the performing arts—dance, theatre, and music—politics and political actions requires an audience. Political actors act in front of other people. They need spectators, so that the spectators can be drawn to the action; and when the spectators find the doings of politicians right, or true, or beautiful, they gather around and form themselves into a polity. The political act, the free act must be surprising if it is to draw people to itself. Only an act that is surprising and bold is a political act, because only such an act will strike others, and make them pay attention.
The very word politics derives from the Greek polis which itself is rooted in the Greek pelein, a verb used to describe the circular motion of smoke rings rising up from out of a pipe. The point is that politics is the gathering of a plurality around a common center. The plurality does not become a singularity in circling around a polestar, but it does acknowledgement something common, something that unites the members of a polity in spite of their uniqueness and difference.
When President Washington stepped down after his second term; when President Lincoln emancipated the slaves; when FDR created the New Deal; when President Eisenhower called the Arkansas National Guard into Federal Service in order to integrate schools in Little Rock; these presidents acted in ways that helped refine, redefine, and re-imagine what it means to be an American.
Arendt makes one further point about action and freedom that is important as they relate to the question: Does the President Matter? Courage, she writes, is "the political virtue par excellence." To act in public is leave the security of one's home and enter the world of the public. Such action is dangerous, for the political actor might be jailed for his crime or even killed. Arendt's favorite example of political courage is Socrates, who was killed for his courageous engagement of his fellow Athenians. We must always recall that Socrates was sentenced to death for violating the Athenian law.
Political action also requires courage because the actor can suffer a fate even worse than death. He may be ignored. At least to be killed for one's ideas means that one is recognized as capable of action, of saying and doing something that matters. To be ignored, however, denies the actor the basic human capacity for action and freedom.
One fascinating corollary of Arendt's understanding of the identity of action and freedom is that action, any action—any original deed, any political act that is new and shows leadership—is, of necessity, something that was not done before. It is, therefore, always against the law.
This is an insight familiar to readers of Fyodor Dostoevsky. In Crime and Punishment Raskolnikov says:
Let's say, the lawgivers and founders of mankind, starting from the most ancient and going on to the Lycurguses, the Solons, the Muhammads, the Napoleons, and so forth, that all of them to a man were criminals, from the fact alone that in giving a new law they thereby violated the old one.
All leaders are, in important ways, related to criminals. This is an insight Arendt and Nietzsche too share.
Shortly after we began to plan this conference, I heard an interview with John Ashcroft speaking on the Freakonomics Radio Show. He said:
"Leadership in a moral and cultural sense may be even more important than what a person does in a governmental sense. A leader calls people to their highest and best. ... No one ever achieves greatness merely by obeying the law. People who do above what the law requires become really valuable to a culture. And a President can set a tone that inspires people to do that."
My first reaction was: This is a surprising thing for the Attorney General of the United States to say. My second reaction was: I want him to speak at the conference. Sadly, Mr. Ashcroft could not be with us here today. But this does not change the fact that, in an important way, Ashcroft is right. Great leaders will rise above the laws in crisis. They will call us to our highest and best.
What Ashcroft doesn't quite say, and yet Arendt and Dostoevsky make clear, is that there is a thin and yet all-so-important line separating great leaders from criminals. Both act in ways unexpected and novel. In a sense, both break the law.
But only the leader's act shows itself to be right and thus re-makes the law. Hitler may have acted and shown a capacity for freedom; his action, however, was rejected. He was a criminal, not a legislator. Martin Luther King Jr. or Gandhi also broke the laws in actions of civil disobedience. Great leader show in their lawbreaking that the earlier law had been wrong; they forge a new moral and also written law through the force and power of moral example.
In what is perhaps the latest example in the United States of a Presidential act of lawbreaking, President George W. Bush clearly broke both U.S. and international law in his prosecution of the war on terror. At least at this time it seems painfully clear that President George W. Bush's decision to systematize torture stands closer to a criminal act than an act of great legislation.
In many ways Presidential politics in the 21st takes place in the shadow of George W. Bush's overreach. One result is that we have reacted against great and daring leadership. In line with the spirit of equality that drives our age, we ruthlessly expose the foibles, missteps, scandals and failures of anyone who rises to prominence. Bold leaders are risk takers. They fail and embarrass themselves. They have unruly skeletons in their closets. They will hesitate to endure and rarely prevail in the public inquisition that the presidential selection process has become.
These candidates, who are inoffensive enough to prevail, are branded by their consultants as pragmatists. Our current pragmatists are Products of Harvard Business School and Harvard Law School. Mr. Romney loves data. President Obama worships experts. They are both nothing if not faithful to the doctrine of technocratic optimism, that we with the right people in charge we can do anything. The only problem is they refuse to tell us what it is they want to do. They have forgotten that politics is a matter of thinking, not a pragmatic exercise in technical efficiency.
Look at the Mall in Washington: the Washington monument honors our first President, the Jefferson Memorial, the Lincoln Memorial, the Memorial to Franklin Delano Roosevelt. There is not a monument to any president since FDR. And yet, just 2 years ago we dedicated the Martin Luther King Memorial. It doesn't seem like an accident that the leaders of the Civil Rights Movement were not politicians. Our leaders today do not gravitate to the presidency. The presidency does not attract leaders. Bold leaders today are not the people running for office.
Yet, people crave what used to be called a statesman. To ask: "Does the President Matter?" is to ask: might a president, might a political leader, be able to transform our nation, to restore the dignity and meaning of politics? It is to ask, in other words, for a miracle.
At the end of her essay, "What is Freedom?", Hannah Arendt said this about the importance of miracles in politics.
Hence it is not in the least superstitious, it is even a counsel of realism, to look for the unforeseeable and unpredictable, to be prepared for and to expect “miracles” in the political realm. And the more heavily the scales are weighted in favor of disaster, the more miraculous will the deed done in freedom appear.
It is men who perform miracles—men who because they have received the twofold gift of freedom and action can establish a reality of their own.
I don't know if the president matters.
But I know that he or she must. Which is why we must believe that miracles are possible. And that means we, ourselves, must act in freedom to make the miraculous happen.
In the service of the not-yet-imagined possibilities of our time, our goal over the two days of the conference days was to engage in the difficult, surprising, and never-to-be-understood work of thinking, and of thinking together, in public, amongst others. We heard from philosophers and businessmen, artists and academics. The speakers came from across the political spectrum, but they shared a commitment to thinking beyond ideology. Such thinking is itself a form of action, especially so in a time of such ideological rigidity. Whether our meeting here at Bard gives birth to the miracle of political action--that is up to you. If we succeeded in thinking together, in provoking, and in unsettling, we perhaps sowed the seeds that will one day blossom into the miracle of freedom.
Watch Roger's opening talk from the conference, "Does the President Matter?" here.
We face a challenge of leadership; there is a void in our body politics that remains to be filled. First, expectations of the president need to re-evaluated. The public’s perception of the president is unrealistic and inflated. A CBS News/New York Times poll in March 2012 reported that 54% of people believe the president “can do a lot” about gas prices.
Our economic recession adds another dimension to the public’s bloated expectations. In the wake of the 2008 economic recession all eyes turned on what the President-elect would do once in office. People believed and still do that the President had the ability to fix the global economic meltdown. The public expected the President to solve our economic problem without understanding that in the globalized neo-liberal regime markets are highly connected. It is no longer possible for a single country to ameliorate the effects of an economic meltdown.
The president will only matter in this century if it is first addressed how we perceive the president. He is neither a deity nor a dictator. His actions in an increasingly filibuster-happy congress are limited. The public’s expectations must be re-evaluated and shaped to accept reality. The president cannot solve all our problems; the very fabric of the American constitution prohibits the president from securing more powers. The justified fear of an autocrat prohibits action. This tradeoff was accepted by the founding fathers and it must now be accepted again.
Once expectations are adjusted, how then does the president matter? The president will matter as long as he can engage citizens in our democratic process. The pervasive idea that democracy is simply voting has filled the minds of millions. The civic and democratic institutions lie asleep in times where the market prevails. People have given up on government; they see it as an artifact to be studied in history books. The president must see his role as protector of our democracy; he must be its biggest champion. This cannot only be done through rhetoric alone. The president must help foster an engaged citizenry that actively participates in our democracy.
The danger to our politics does not come from terrorist it comes from a citizenry that is not informed, does not participate, and could care less. When the media suggests the president must rise above politics the only way that can be done is to address the inherent problems in our current political system. It is to remind citizens of the price paid by their forefathers for political rights. The president must become the chief persuader thereby helping bring citizens into the political fold. The only way for the president to matter in this century is for people to see him as a protector of this great experiment and not merely as passerby.
These leaders will come from the left and the right alike, engaging citizens should not be a partisan issue. They must also come with a historical understanding of our democracy and American institutions. This does not mean they will rise from academia, but that their understanding cannot be informed by current political debates but rather by history. New political leaders must accept a non-politicized history that seeks truth.
Facts have become politicized, each side molding it to their own advantage. Objective truths are irrelevant because each side has been allowed to massage it. On August 28, 2012 New Jersey Governor Chris Christie lied by omission. He gave the keynote address at the Republican National Convention claiming that there has been a New Jersey come back. That his policies have worked and all it takes is serious leaders to tackle our problem. He claims he cut the state deficit while decreasing taxes. The governor forgets to mention he also cut pensions, teachers, firefighters, and many others. What is more glaring is New Jersey’s unemployment rate at over 9%. The myth is created allowing Governor Christie to become a hero in the Republican Party. The truth does not lie with either party. A new leader must inform citizens of the reality rather than try to score political points. This may be impossible but it is the only way that the president will matter.
People are tired of the partisan bickering; Obama’s unemployment rate is just as bad as Governor Christie’s and yet both sides claim victory. A president will not matter until he can acknowledge the fundamental problems at hand. For a leader to matter he must stand for something greater than his own party. He must stand for citizen participation and access to information. A leader would not claim victory but would relate to citizens the problems we face and the solutions they believe will solve it. They must acknowledge when those solutions do not work. It is a pragmatic president that will matter in this century, one who is willing to suffer the consequences of failed policies for democracies sake.
The Millennial generation will inherit a troubled world by the year 2040. Their ability to lead will prove extremely important. They will be the heirs to the American dilemma. The hope is that they rise and fill the leadership void not as past generations have done, but as new leaders different and emboldened by a fight for a vibrant participatory democracy. It is John Dewey that should inform what a new president needs to fight for. “[T]he task of democracy is forever that of creation of a freer and more humane experience in which all share and to which all contribute.”
 John Dewey, “Creative Democracy—The Task before US
The Wall Street Journal, The New York times, and Guernica—it seems everyone is excoriating John Roberts' opinion upholding the health insurance mandate in the Affordable Care Act. The WSJ calls the precedent Roberts set "grim." The Journal, in another editorial, writes that Roberts' decision is "is far more dangerous, and far more political, even than it first appeared last week." Roberts has, the WSJ argues, substituted "one unconstitutional expansion of government power [the commerce clause] for another [the taxing power]," and, in doing so, rearranged "the constitutional architecture of the U.S. political system."
In Guernica, Ciara Torres-Spelliscy, argues that "Closer inspection of the actual written opinion shows Roberts gave those who want to hem in Congress’s power everything they wanted." Torres-Spelliscy agrees with the WSJ that, in her words, Roberts "provided the blueprint for a radical rebalancing of powers among the three branches." But while the WSJ thinks Roberts is expanding governmental power, Torres-Spelliscy argues he is radically constricting it.
What both sides in this debate get right is that Roberts' opinion is deeply important and that it will likely change the way that the U.S. Federal Government interacts with citizens. That said, for those concerned with freedom within a constitutional government, as was Hannah Arendt, Roberts' opinion offers much to be excited about. It deserves greater and more serious consideration than it has so far been given.
Roberts' opinion begins with an eminently sensible manifesto for judicial restraint. Like his hero Oliver Wendell Holmes Jr., Roberts believes the Court should defer to Congress except in those cases where the legislation cannot be squared with the Constitution. The devil is always in the details of such a squaring, but at a time of ideological posturing, Roberts' opinion is a welcome read:
Our permissive reading of [Congress' enumerated powers] is explained in part by a general reticence to invalidate the acts of the Nation's elected leaders. "Proper respect for a co-ordinate branch of the government" requires that we strike down an Act of Congress only if "the lack of constitutional authority to pass [the] act in question is clearly demonstrated." Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgment. those decision are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Whatever one thinks of Roberts' actual legal opinion, the statesmanship he evinces is welcome. In the most politically sensitive case since Bush v. Gore, Roberts defused a potential explosion threatening to undermine the Supreme Court's legitimacy. As the Arendt Center's Bard colleague Walter Russell Mead writes, "in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward." The introductory pages of the Roberts opinion offer a balanced and at times inspired primer in Constitutional interpretation and U.S. Constitutional history.
Beyond the near pitch-perfect tone, Roberts' opinion offers much to be thankful for. It is one of the most legally important opinion the Court has handed down in decades. It seems worth making a few points.
1. Many have derided Roberts for considering the mandate payment a tax when the legislation called it penalty. Let's give him credit for speaking frankly. It really was a tax. The Congress simply didn't want to call it a tax for political reasons. The mandate is a payment required to be made to the Treasury, collected by the IRS, with no Criminal or Social Stigma of wrongdoing attached to it. Roberts did not have to call it a tax, but he did so on the principle of judicial restraint, interpreting the statute in a way most likely to maintain its constitutionality. That is the role of a Supreme Court in a constitutional republic.
The distinction Roberts employs to call the mandate a tax makes total sense. He says that a payment is a penalty when non-payment is considered a wrong. If you speed and pay a ticket, you have committed a misdemeanor. That is a penalty, not a tax. But when the payment is simply made without any claim that the action generating the payment is wrong, that is a tax. So, if you purchase cigarettes or a speed boat, you pay a special tax. It is your choice.
In the case of the mandate, the Affordable Care Act says that if you don't purchase insurance, you pay a certain amount to the treasury. That amount is less than you would normally pay for insurance in many circumstances. Thus the legislation expects and imagines people for whom the payment is lower than purchasing insurance to actually pay the payment rather than purchase insurance. This is evidence for Roberts that there is no stigma associated with the payment and that it really is functioning as a tax rather than as a penalty. There is no sense of a wrong. Despite what Congress said for political purposes, Roberts is on good grounds to call the mandate payment a tax.
2. Roberts blazes a new path on which the federal government can continue to regulate the actions of citizens. The Congress must now increasingly justify its regulatory initiatives by appeal to the power to tax rather than the power to regulate commerce. While this may seem merely a semantic distinction, it is not a meaningless difference. And this is the heart of the real importance of Roberts' opinion.
If the mandate payment had been upheld under the commerce clause (as Justice Ginsburg's dissent advocated), then the government would have been permitted to do anything it wanted or needed to do in order to achieve its ends of creating a health care system. For example, Congress could have simply required people to purchase health care. You may think that is what Congress did. But according to Roberts, such a requirement is no longer constitutional. Instead, what the Congress did was say: "You have a choice. You can buy health insurance or you can forego buying health insurance and pay a tax to support the health insurance market."
What is the difference? Under the commerce clause, the government can tell you what to do (buy insurance) and it can punish you if you do not do so. Under the taxing power, all the government can do is require people to pay money into the treasury. This is not a meaningless difference.
While the power to tax can be terrible and the power to tax is also in certain cases the power to destroy, this is not usually the case. When taxes are reasonable and not destructive, an individual charged with buying insurance or paying a tax can always choose to pay the tax and not buy insurance.
This is the emancipatory thrust of Roberts' opinion. By shifting the Congressional authorization from Commerce to Taxation, he has struck a surprising balance between freedom and the government's power to influence behavior. On the one hand, it is now significantly harder to justify congressional authority over individuals that will compel them to act in a certain way. On the other hand, Congress can pursue its ends by taxation rather than by regulation.
3. To make it clear just what it is that Roberts allowed, he offers an example that I think is helpful.
Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,” a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.”
Roberts is right here. The real reason to like his opinion is that by shifting the authorization from commerce to taxation, Roberts affirms the federal government's right to influence behavior but weakens the federal government's authority to compel citizen behavior. His argument is that it is more consistent with federal limits and the protection of freedom to allow the government to tax us then to regulate us.
There are still many unanswered questions here. It is unclear how impactful Roberts opinion will be in the future. But he has offered an alternative to the ever-expanding use of the commerce power to justify intrusive federal regulations, while still asserting that the federal government does have the power to motivate and behavior through its power to tax.
It is rare to read a Supreme Court opinion that is as surprising as it is thoughtful. It is also worth doing so. Robert's opinion is your weekend read.
We are witness to more handwringing today from the international community over Syria. Something must be done to respond to the tragedy unfolding in slow motion. And yet, unwilling to act outside the rubric of humanitarianism, the international community is paralyzed. What the rebels in Syria want is not humanitarian aid, but weapons so that they can fight, defend themselves, and bring about a revolution. But that is what the international community will not give them.
The NY Times reports today that the "Friends of Syria" met in Istanbul over the weekend to debate whether they might, under the rubric of humanitarian aid, send $100 Million to the Syrian rebels to pay their soldiers and offer communications equipment. Weapons are off the table because Russia and China have limited UN action to solely humanitarian assistance.
Even such tepid help as money and communications assistance is not yet agreed to, since aid beyond bandages and food is understood as political, not humanitarian.
There remains no agreement on arming the rebels, as countries like Saudi Arabia and some members of Congress have called for, largely because of the uncertainty regarding who exactly would receive the arms.
The assistance to the rebel fighters as Mr. Assad’s loyalists press on with a brutal crackdown could worsen a conflict that has already led to at least 9,000 deaths and is increasingly showing signs of descending into a sectarian civil war. Some say that enabling the uprising to succeed is now the best bet to end the instability and carnage sooner.
In Syria, such hand wringing is a non-event. The Syrian rebels have ignored the conference in Istanbul. One Syrian activist blasted that the absence of promises of arms far overshadowed the financial and communications aid: “I’m the only one who watched this conference in our neighborhood, because there was no electricity and people don’t care,” he said. “I only watched it because Al Jazeera wanted my comment.”
The revolutionaries opposing Butcher Assad in Syria are inspirational—at least those who have been opposing him for nearly a year now at grave risk to themselves. As I have written before, we should feel gratitude to them for showing us what it means to fight and stand up for and suffer for what they believe in. The rhetoric of humanitarianism clouds this issue and calls for medicine and bandages, or tries, as the Conference in Istanbul last weekend, to extend humanitarianism to communications equipment. But if the revolutionaries deserve our support, we should arm them and let them fight the battle they believe in. If not, or if the situation is too confusing, we should stand back. But this is a political question, not a humanitarian one.
Hannah Arendt was always careful to insist that life is not the most important human right. The core right of humanity is to speak and act in public, which Arendt also called The Right to Have Rights. The Right to Have Rights includes the right to resist and even to die for one's beliefs. To do so is human, and is not senseless, especially when one is then remembered for bravery and heroism. Indeed, human life can often have more meaning in martyrdom then in a comfortable life. Whatever else one can say about Syria, it is the case that people fighting and struggling there are being seen and heard both in Syria and around the world.
The revolutionaries in Syria have shown their bravery, courage, and dedication. They are fighting for freedom, even if different groups understand that in dangerously various ways. After one year, however, they have earned our respect. For that, we should be grateful for their example and awed by their sacrifices. We should also have the courage of our convictions and give them the arms and means to carry on their struggle themselves.
Cary H. Sherman has written a provocative Op-Ed piece, “What Wikipedia Won’t Tell You”, arguing in favor of the SOPA and PIPA bills that were recently withdrawn after an unprecedented uproar spurred by the protests of Wikipedia, Google, and other websites. Sherman, CEO of the Recording Industry of America, accuses the bill's opponents of propaganda. He writes that the sites that participated in the so-called Internet blackout are guilty of “an abuse of trust and a misuse of power” for producing what Sherman calls “hyperbolic mistruths” about censorship.
It is no secret that the entertainment industry spends millions of dollars on lobbying Congress; information giants like Google, Microsoft, and Apple, also have large and active lobbying budgets. However, in this case, the Internet companies did not deal with Congressmen behind closed doors to secure legislation that would have been beneficial to their business. Instead, the digital world appealed to the people who depend on their technology every day – and it worked. By educating Internet users and voting citizens, the sites empowered people so that they could make an informed decision about how to act.
Sherman worries that the latest protest raises “questions about how the democratic process functions in the digital age.” He is right. It certainly does presage an era in which it is much easier to distribute information and activate a body of concerned citizens, something that offers great possibilities for democracy. He is also right that many of those who contacted their congressman had heard only one side of the issue and likely had only a tenuous understanding of what was complicated legislation. But how different is that from any protest or action by large groups of citizens? While mass democracy carries risks and is unpredictable, the “digital tsunami” that Sherman fears also points toward the potential for a more direct and interactive democracy—something along the lines of the “liquid democracy” promised recently by the Pirate Party in the Berlin government.
We should not underestimate the risks of allowing complicated decisions to be heavily influenced by mass protests. However, the reality is that this risk poses the greatest threat to those used to a democracy in which elections are bought and sold and in which a cadre of paid lobbyists has inordinate influence over the writing and passage of legislation. Sherman takes the party line on online piracy and copyright infringement, asking, “When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is?” A valid question; the digital age does pose problems in terms of traditional copyright law, and these problems must be addressed. Equally important, however, is that we as citizens take back our government from lobbyists and other power brokers. Perhaps Alexis Ohanian, founder of Reddit, expressed this frustration best:
Why is it that when Republicans and Democrats need to solve the budget and the deficit, there’s deadlock, but when Hollywood lobbyists pay them $94 million to write legislation, people from both sides of the aisle line up to co-sponsor it?
The NY Times penned one of those editorials Wednesday that makes one wonder who is home. The Times takes President Obama to task for forming a Super PAC--or for having someone form a Super PAC for him, because we know there is no coordination between the Super PAC and the Super PAC's beneficiary. As cynical as the current Super PAC frenzy is, and as disheartening as the crush of money being spent by the Republican Super PACs and hoarded by Karl Rove's Super PAC is, what would be served by President Obama refusing to feed at the trough? Recall, he is the first Presidential candidate since 1974 to opt out of the public matching funds system. The idea that he might run as an anti-big-money candidate is hard to imagine, so how could he meaningfully run a campaign claiming on principle to be opposed to the influence of big money, as the Times editorial suggests.
I am in Berlin where on Monday I gave a Keynote Talk to open the State of the World Week in Berlin, sponsored by the European College of Liberal Arts of Bard. My talk was on the Citizen United court case, the case that opened the door to Super PACs. I'll be blogging more about Campaign Finance Reform as the election progresses. But for now, here is a short excerpt of one part of my talk that offered a condensed history of Campaign Finance and Campaign Finance Reform in the United States.
We can divide the history of Campaign finance in the U.S. into 7 stages.
1. The first stage is the pre-History involving the 1787 Constitutional Convention. As Zephyr Teachout has shown, "Corruption was discussed more often in the Constitutional Convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened." Teachout and Lawrence Lessig have argued that there was a strong sense among the founding fathers that the great threat to new Constitution was corruption. And they have pointed to a number of practical responses to that threat in the Constitution itself. These include Article I, Section 6, Clause 2, which prevents members of Congress from holding civil office while serving as a legislator, or from being appointed to offices that had been created—or in which the compensation was increased—during their tenure. The point was to prevent members of Congress from using their posts to enrich themselves and their friends.
Another innovation aimed to prevent corruption was the decision to have those in the House of Representatives serve only for two years. According to Teachout and Lessig, this was designed to counter the formation of bonds between legislators and the President. By turning over the members of the House on a regular basis, it would be less likely that the Representatives would form strong alliances with members of the Executive branch, thus helping to maintain their independence. The founding fathers would surely be astounded by the incumbent advantages apparent today.
2. The Second stage of American campaign finance history runs from the passage of the Constitution until the election of Andrew Jackson in 1828. In early U.S. elections, most campaign expenses were paid directly by the candidates using their own money. Such expenses were relatively minimal, going toward an occasional campaign pamphlet and, sometimes, for food and drink at rallies. As Bradley Smith writes, "Though free from the "corrupting" effects of money, elections in this early period were generally contested by candidates representing aristocratic factions standing for election before a relatively small, homogeneous electorate of propertied white men."
3. The financing of American political campaigns begins to become interesting in 1828, with the election of Andrew Jackson. Jackson's presidency is rightly seen as the true beginning of modern American democracy. And Jackson's campaign for President was the first presidential campaign that appealed directly to the voters and not simply to party elites. Jackson's campaign was organized by Martin van Buren (who later served as his Vice President and thereafter as President). Van Buren was one of the original machine politicians from New York who created the machine concept Boss William Tweed would perfect later in the century at Tammany Hall. What Van Buren did for Jackson was to organize a campaign aimed at the people. This cost money. And what he and Jackson did was to raise money from those who were seeking jobs in the government. This was the beginning of the spoils system, whereby political campaigns were funded by current and prospective government employees; these employees in turn expected to be rewarded with jobs once their candidate won the election.
4. The spoils system lasted until the passage of the Pendleton Act, in 1883, which inaugurates the fourth stage of the development of campaign finance. The Pendleton Act professionalized the Federal Civil Service, instituting an exam for entry into the service and outlawing the Spoils system. The result was that campaign funds from federal officeholders dried up, and politicians needed new sources of funds. The obvious sources were wealthy individuals and corporations. And oh boy did corporations jump into the breach. By the late 19th century, the government was giving grants of land and cash to corporations, and in return the corporations were generously funding political campaigns. In 1888 40%, of Republican national campaign funds came from Pennsylvania manufacturing and business interests. By 1904, 73% of Teddy Roosevelt's presidential campaign funds were raised from corporate contributions. (I take these numbers from Bradley Smith). The age of corporate funded campaigns was here, and it has never left.
5. Once he was elected, Teddy Roosevelt made it a priority to reform the broken campaign financing system that he had exploited so well. With his support, Congress passed the Tillman Act in 1907, which made illegal all campaign contributions from corporations. The Tillman Act opens the Fifth stage of the development of Campaign Finance Reform in the United States.
While the Tillman Act carried penalties for its violation, it instituted no enforcement mechanism. The result is that not much changed. To take only one legendary example, in 1968 and 1972 Clement Stone contributed up to $10 million to President Richard Nixon's Presidential campaigns. Stone's contributions caused a scandal that, together with the outrage over Watergate, led Congress to finally institute a serious attempt at campaign finance reform.
6. The key moment of modern campaign finance reform is the passage of the Federal Election Campaign Act (FECA) in 1974, and the Supreme Court's partial upholding and partial overturning of that law in Buckley v. Valeo in 1976. In the wake of Watergate and the loss of trust in government, the Congress passed FECA which: limited individual contributions to individual candidates to $1,000; limited the amount candidates could spend on a campaign; established a system of public financing of campaigns that required a voluntary limit on campaign expenditures; required that candidates, parties, PACs and groups engaging in express advocacy disclose their fund-raising and spending; and created the Federal Elections Commission, to regulate and enforce the new rules.
In a landmark decision that still controls all legal approaches to the regulation of campaign financing, the Supreme Court in Buckley v. Valeo upheld the disclosure requirement and the limits on individual contributions. It also upheld the limits on campaign spending when those limits were voluntary and in conjunction with the decision to accept public financing. But the Court struck down compulsory limits on spending both by individual candidates and by PACs and other groups. While the Court recognized that limits on campaign spending were a kind of censorship that limited the rights of people and corporations to speak about the most central political issues of the day, it also acknowledged "large contributions threaten the integrity of our system of representative democracy." Because large contributions, especially to individual candidates, at the very least appear to suggest a kind of quid pro quo corruption, the Court accepted that Congress has the right to censor such expressions of support. More general expenditures not given to or coordinated with a specific candidate were, the Court argued, not examples of the kind of corruption that would allow Congress to override the fundamental free speech interests of individuals and corporations who would want to influence the political debate. Thus, post-Buckley, the rule was: The Constitution limits censorship of political activity, political speech and political spending on campaigns. Any limit is censorship that violates the First Amendment. And yet the Court carved out One Narrow Exception: speech or activity that either is or gives the appearance of quid pro quo corruption could be regulated and banned.
In the aftermath of Buckley v. Valeo, money continued to pour into politics. Candidates and their supporters made use of "soft money," money given to political parties and other groups and thus not subject to the limits imposed on individual contributions to individual candidates. PACS began to bundle large sums of money that, while not individual contributions to candidates, nevertheless carried the tint of influence peddling. In the year 1993-94, the Democratic Party received $45 Million dollars in "soft money" and the Republic Party received $59 Million. By 1999-2000, the numbers were $92 Million and $244 Million respectively. In 2001-2002, the Democratic Party took in $200 Million and the Republicans $421 Million.
7. The failure of FECA to stem the tsunami of money in elections led Congress to try again, and in 2002 it passed the Bi-Partisan Campaign Reform Act (BCRA), also known as the McCain-Feingold Act—the seventh and until now final stage of the effort to regulate campaign finance in the United States. The main innovation of BRCA was to prohibit unlimited soft money contributions by corporations and unions. And it was this provision that was held to be unconstitutional by the Supreme Court in the now infamous case of Citizens United v. FEC.
The core of the Citizens United ruling was Justice Anthony Kennedy's argument that "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." For Kennedy, "The censorship we now confront is vast in its reach." What he means is that the law bans all those corporations—including large multinationals and also small mom and pop stores and even non-profit corporations—from expressing their views about political candidates for either 30 or 60 days leading up to an election.
In Kennedy's telling, corporations are part of the country and, what is more, an important part of the country. The Government has “muffle[d] the voices that best represent the most significant segments of the economy." Here Kennedy channels Felix Frankfurter, who in the 1941 case of U.S. v.s. Congress of Industrial Organizations, wrote:
To say that labor unions as such have nothing of value to contribute to that process and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing interrelationship in modern society.
U.S. v. C.I.O. dealt with the anti-Union Smith Act, which forbade unions and corporations from using treasury funds to pay for politicking. In this regard, the Smith Act was very much like 2002 Bipartisan Campaign Reform Act. While the majority of the Court refused to consider the Constitutional Question and decided the case on narrow grounds, Frankfurter did. In his telling, the Court must take seriously the evil that Congress sought to address: namely, the corruption of elections and federal officials by the expenditure of large masses of aggregated wealth. And yet, Frankfurter saw that "the claimed evil is not one unmixed with good." The expression of corporate or union speech in elections is, he writes, a good thing! "The expression of bloc sentiment has always been an integral part of our democratic and legislative processes." Replace "Labor unions" with "corporations." That is what Kennedy did.
Jack Blum, Chair of Tax Justice Network USA, is a longtime friend of the Hannah Arendt Center. He participated in the Center's 2009 Conference, The Burden of Our Times: The Intellectual Origins of the Financial Crisis. One of the national experts on tax evasion, Jack recently collaborated on the film, "We're Not Broke," in which he helps shed light on the tax system in the United States. We reached out Jack to shed some light on Mitt Romney's tax returns for 2010-2011. We found him at the Sundance Film Festival in Utah where he is promoting "We're Not Broke," and he agreed to share with us his thoughts.
Mitt Romney’s tax returns show us just how rotten the American tax system has become. He is right when he says that his returns are correct and that he followed the law – but what a law! His work allowed him to call his salary a “carried interest.” Under current tax law he can to decide when to take the income, and when he decides to declare it, to pay tax on that income at the capital gains rate of 15%.
Making matters worse, his line of business, venture capital, relies in large part on tax breaks. Venture capitalists more often than not buy their target companies on borrowed money. They convert the capital in the target business from equity to debt and take deductions for interest payments on the debt. Capital is after tax money – debt is before tax and thus tax favored. Call it capitalism without real capital.
All of this is perfectly legal, but that doesn’t make it right. After all, slavery was legal for hundreds of years. So was preventing women from participating in the political process.
Beyond the case of venture capital, the tax code is riddled with privileges for the few, and for the multi-national corporations. Senator Carl Levin D-Mich. Has just introduced legislation that tries to close many of the most egregious loopholes. But, he is not on the tax writing Finance Committee, and that Committee is looking at ways to make the situation worse, not better.
The question every citizen should ask is how the Internal Revenue Code got this way. Certainly a government prepared to cut the budget for education, research, and infrastructure should be looking at the way it is subsidizing “free market” financial engineering business activity – activity that is usually not terribly productive. The answer lies in the campaign finance system. Seats on the tax-writing committees are the most coveted in Congress because the members are showered with contributions from lobbyists, political action committees, and employees of corporations wanting favors.
As a result, it should come as no surprise that many of the largest corporations have a negative tax rate.
The latest insult to the political system is the Citizens United decision that gives corporations the right to contribute to political campaigns. Corporations are not people. They are not citizens. They will invert one of the slogans the country was founded on. The new slogan will be “representation without taxation.”
Mitt Romney thinks that what he has done to take advantage of the loopholes without comment on the inherent injustice is normal and justifiable.
It does not seem to occur to him that the tax code that made him rich has shifted the burden of providing for the funding the common good to average citizens who are being told that they should expect nothing from government.
Finally, the people who are most favored by the tax system are the leaders and funders of the incessant drumbeat that social security and Medicare are bankrupting the country. The Mitt Romney’s of the world who make their money from “carried interest” don’t pay social security and Medicare taxes and won’t need the benefits.
The debate over the economy and the budget must include corporate tax subsidies. America cannot provide for its needs if the likes of Google, Apple, and Pfizer pay no tax. It cannot provide for its needs if the very rich can turn real income into capital gains and time their decision on when to take the income. The silence on this subject is deafening.
A few hundred people gathered at the capitol today as part of Occupy Congress. Why so few?
Last Fall Occupy Wall Street movement sprouted 2,779 chapters around the nation and captured the attention of the 1% as well as much of the 99%. In some ways, the movement has had an impact. A number of young people and even some older people tasted the sweet nectar of political action, and there are individuals and groups still energized to take on the debilitating as well as embarrassing income inequality and political corruption that is endangering our system of government.
These issues are now on the agenda. Just today the New York Times ran a front-page story on Mitt Romney being one of the 1%. Romney, tone-deaf as usual, characterized his $374,327 income from speaking fees as "not very much" money; this was his way of justifying paying only 15% of his income in taxes because his earnings are primarily from investments.
And yet, it is undeniable that the movement has fizzled. One hears almost nothing about Occupy Wall Street these days. A long-planned day of action Occupying Congress drew barely a few hundred souls.
Democratic politicians—not to mention Republicans— around the country are resisting increasing taxes on the highest earners. Accountability on Wall Street and in Washington for the crisis is a fantasy. And serious talk of reforming our campaign finance system is barely audible. What happened? Why did a movement that enraptured the nation just a few months ago fade so quickly? What is the fate of the promise to rejuvenate politics and bring real change?
It cannot simply be the weather (unseasonably warm anyway) that has frustrated the protests. Could it be the glimmer of economic recovery that has changed the focus from protest to profits? Possibly. But still, the alacrity with which the energy and spiritedness of the protests fled from public consciousness is shocking.
I can't but think the real reason for the disappearance is disillusionment and failure. A movement that swept the nation, changed the discourse, and empowered thousands has, in the end, accomplished almost nothing concrete. No laws changed. No new candidates or leaders emerged. And the major issues that galvanized the country—income inequality and political corruption—have seemingly faded from view. With few successes to point to, many of the protesters appear ready to move on. How could this be?
The Occupy Wall Street website still promises, "The Revolution Continues." But the worry about the future is palpable on the forum page titled:
Forum Post: What the fu** has happened to occupy wall st.
There, you can find the following post by Thrasymaque that has generated enormous response.
OWS was based on an idea that was/is needed in many Arab countries: a revolution. Because of this, OWS categorically refused to make demands. They wanted to topple the government, not work with it. Because US doesn't need a revolution and most people don't want one, the energy faded away with the coming of winter. Anarchism and communism have never been very strong in America. Their protest was never expected to last very long. Anarchists always destroy there (sic) own selves.
Thrasymaque gets much of this right. Too many in the movement insisted on rejecting all goals or ends. Some of those had the fantastic goal of overthrowing the government. Others did not know what they wanted. And some really were swept up in the process of trying to figure out what they wanted. There was joy in public action and the thrill of debate and engagement. Much was beautiful and spontaneous. But the fact is that without a concrete goal and without leaders to mold and guide the passions of the people, the movement fizzled.
For those of us who hoped that Occupy Wall Street might rise to the moment and produce a leader or leaders to fill the dangerous vacuum in leadership in this country, the insistence on a leaderless revolution was a huge mistake; so too was the rejection of all issues or goals. The result is that we have seemingly squandered a movement of incredible power and promise.
The real problems we face as a country—the corruption of our political process, the decimation of the middle class, and the malaise of decline—persist. The establishment in Washington and Wall Street breathe a sigh of relief and seem more set in their ways then ever. Congress is paralyzed. Meanwhile, the wheels of finance are turning again. The failure of a popular movement that might have challenged the status quo has left those in power more secure in their privileges. From the winds of change, it seems we have settled into a desert of despair.
In my first post on Occupy Wall Street back on Oct. 5th, I quoted Hannah Arendt's reflection on the Student Protests of the 1960s:
This situation need not lead to a revolution. For one thing, it can end in counterrevolution, the establishment of dictatorships, and, for another, it can end in total anticlimax: it need not lead to anything. No one alive today knows anything about a coming revolution: 'the principle of Hope' (Ernst Bloch) certainly gives no sort of guarantee. At the moment one prerequisite for a coming revolution is lacking: a group of real revolutionaries.
The reason that a revolutionary moment will succeed or fail to turn into a real transformation is the lack of real revolutionaries; revolutionaries, Arendt writes, are people who face the reality of the present and think deeply about meaningful responses and alternatives.
I asked then: "Is there a serious and thoughtful confrontation with reality that underlies Occupy Wall Street?"
I asked from a position of hope. I fear that the answer, at least so far must be no. We are closer now to counterrevolution than revolution, but most plainly we face anticlimax. Most palpably, in the year of one of the most consequent elections in our nations history, we are missing a leader, a voice, that offers a meaningful and powerful agenda for change, let alone a revolution.
We must ask ourselves: Why is it that this crisis, and this movement, failed to produced revolutionaries?