The hyperpartisanism in American politics exists because the founding principle of “consent of the governed” has been circumvented. The US Constitution was designed with checks and balances and a consensus of three-fifths, two-thirds, or three-fourths votes to prevent moneyed interests from using the government. This is often referred to as a “super-majority.” Further, a bill would need to be passed in two houses, the House representing the a consensus of people and (before the 17th Amendment) a consensus of the states. This was to ensure the bill was in both the interests of the people and the states. The “consent of the governed” is what makes a government legitimate in the eyes of its citizens.
A System Off Its Rails
The United States system of government by consent has gone off its constitutional rails. I say “rails” because the Constitution defines the framework and boundaries of legislation. These boundaries, or rails, were established both to protect the citizens from themselves, and to prevent special interests from controlling legislation. In the United States today almost no legislation is passed by consent of the governed and nearly everything is passed by special interests. Thus the system is not considered legitimate by large numbers of citizens.
While, the Constitution created no vehicles for the representation of moneyed interests or corporations, legislators have gradually figured out ways to serve them, rather than the people who elect them. Numerous rules of legislation, laws, and even constitutional amendments have created a new set of rails for special interest legislation and political parties have become the trains that deliver it.
How Consensus is Avoided and Special Interests are Served
- Pork and Horse Trading:
- These are practices that allow items to be placed in a bill that will either enable a bill to get a vote from a reluctant legislator, or get used by a legislator to reward a financial contributor. This type of legislation can get passed, even if less than 1%, or just 1 or 2 people support it. This legislation is the furthest from consensus, and can easily be passed without the consent of the governed
- Legislators justify this practice because, strategically, it enables them to serve special interests in their district. They feel they are doing something and being useful to a constituent even though it does not serve the interest of the whole. In turn, these interests contribute to campaigns to get them reelected. Even though the bill may be filled with pork from dozens of other interests in other districts that his constituents oppose, the legislator can justify his vote based on the bacon he brought home.
- Since special interests are almost never in the general interest, and would never receive a vote from other representatives or political parties, horse trading agreements are made: “I will approve your interest if you approve mine.”
- I have seen bills passed in Minnesota that have started with one item and ended up with 130 items, one for each legislator. Such bills have appropriately been called garbage bills.
- Political parties have streamlined this process. By making legislators loyal to them and negotiating on their behalf, Republicans and Democrats have been able to combine one item for each party into a bill and get the citizens (the forgotten man) to pay for it.
- Beware of any legislator that argues for “comprehensive legislation.” This is codespeak for corrupt legislation. In the Minnesota Constitution there is a requirement that every bill be a “single subject,” but over the years more individual items have gotten packed under the label of a subject, and subjects have become so broad as to be meaningless. In 1969, 1,169 laws were passed in the regular session, compared to 65 passed in the 2019 session that contained many more items, much of it pork that escapes transparency and legislator accountability to the citizens who elect them.
- Solution: The easiest way to prevent stuffing bills with pork is to require legislation to be on a single item (not a single subject). This is what the founders intended or the process would not serve the consent of the governed.
- Simple Majority:
- A simple majority of 51%, or the highest number of votes (even less than 50%) is not a consensus. It is difficult to conceive of something as representing “the will of the people” or a “mandate” if half of the people or fewer do not support it.
- Simple majorities are justified by legislators who can muster 50% of the votes to strategically achieve a political goal that does not represent a general consensus. Harry Reid got this rule, called “the nuclear option,” to get around a standing rule in the Senate that required 60 votes (three-fifths) to close debate on a bill in the Senate. The term “nuclear” represents an option as extreme as the use of nuclear weapons in war.
- Simple majorities are easier to achieve than a consensus, and even three-fifths would be hard pressed to be considered a consensus. It is easy to dispense with an item with a simple majority, because there will always be a highest number of votes, one way or another.
- However, simple majorities in government can be as divisive as tribal warfare. This is because half the people, or even less, can use the power of a simple majority to tax and oppress everyone else. Simple majorities do not represent the “consent of the governed.”
- The founders argued that it should be hard to pass any legislation and only when there is a general consensus. One can see the wisdom of their thought in a case like abortion. A law passed by a simple majority of 51% telling the other 49% how they must act is extremely divisive. And, taking such a highly contested law to the Supreme Court does not help, for whichever way the Court decides half the people will feel it is an illegitimate decision. Abortion laws have not been passed with the consensus that the founders intended, but have been strategically been pushed through by special interest groups using rules that have gone off the constitutional rails and onto the new ones, like the nuclear option, forged by the special interests in collusion with legislators.
- The Solution is to abandon simple majority legislation and require consensus on every vote. In a government with a two-party system nothing less than 75% approval can be considered consensus, because if all of one party approved, half of the other party would have to approve. This way a majority support in both parties would help ensure the measure was really “the will of the people.”
- Two Party System:
- A two-party system of governance in which the citizens vote for political parties and “representatives” vote party lines is neither a democracy or a republic. Such a system is a form of plutocracy. or the rule by the wealthy or elites. This is largely what the United States system of governance has become.
- George Washington, in his Farewell Address, looking at weaknesses in the new system of governance, said political parties should be avoided; they will cause divisive factions and unscrupulous men will use them to undermine the government. Reading his Farewell address used to be required in many public school civics classes.
- Political parties trump the influence of individual citizens and their elected representatives. They are a method of consolidating political influence, and they primarily represent the interests of their financial supporters, even though their rhetoric usually says they want to serve the interest of society.
- By putting political parties after the names of candidates on a ballot, most voters vote for the political party and not an individual candidate.
- By providing an endorsement and funding for a candidate, political parties tend to “own” candidates, who become their patsies, rather than acting as representatives of their constituents. If a representative does not vote the party line, he will lose the party endorsement for the next election.
- Political parties tend to be substitutes for religion in that they promote doctrines of right and wrong, good and evil, and a vision of society. Since the First Amendment to the US Constitution separated “religion” and the state, but not political parties and the state, parties became secular substitutes for the Medieval relationship between Church and State. As such, their ends are money and power rather than good values.
- In a two-party system, where the parties are fairly evenly divided, the simple majority or “nuclear option” is advocated to acquire the desires of lobbyists and donors at all costs, regardless of the will of the people. Consensus is an obstacle, and social division is of little concern.
- Further, if a President runs on a party ticket, his role as a leader of the entire population is undermined. First, he will be beholden to party sponsors the way legislators are. Secondly, Supreme Court and Cabinet appointments will inevitably become based on party loyalty rather than skill in the office. This both amplifies social division and undermines government competency.
- The solution to end this plutocracy based on two political parties and restore democracy is to expand the First Amendment to separate all groups from the state, including political parties, and to restore the relation between citizens and the state through their representatives. Nearly evenly divided party-line votes can be more contentious than simple majorities where representative reflect many different positions. Parties embedded in government intensify social divisions.
- An example of this is to eliminate listing of political parties on ballots after candidates names. Religious affiliations or racial identities are not allowed on ballots, political parties should not be allowed for the same reasons.
- Political parties should enjoy freedom of association to advocate ideas of governance, but should be governed by the same restraints as other private organizations when it comes to separation from the state.
- Constitutional Amendments:
- When special interests are blocked by constitutional checks, they seek constitutional amendments to remove these blocks, or they might try to use a constitutional amendment as a substitute form of legislation.
- The 16th and 17th Amendments largely ended the participation of the states in their own union. The 16th Amendment bypassed the constitutional requirement that only the states could directly tax citizens and enabled the Federal government to tax directly. Then the Federal Government could offer funds before the states with strings attached. This is a form of extortion. The 16th Amendment was also necessary for the creation of the Federal Reserve because Federal taxes were required to guarantee interest and principal payments to the banks. The 17th Amendment removed the power of states to appoint Senators, and giving the states a constitutional check on harmful mob-based legislation. By have the same group (citizens) vote for Senators and members of the lower house, the Senate largely became a superfluous body. Together, these two amendments effectively eliminated the influence of the states on their own union, making them more like provinces of the federal government.
- Constitutional amendments have also become techniques to directly enact legislation and avoid the legislative process entirely. For example, in Minnesota, a three-eights percent state sales tax dedicated to the arts and the environment was created by a constitutional amendment when groups who wanted it could not get legislative approval. This gets around the need to have the legislature to appropriate money each session, and takes away the ability of citizens to control government spending through their elected legislators. It was a permanent funding law, rather than part of the Constitutional framework that defined the processes of governance.
- The the first solution is to only allow Constitutional Amendments to serve as the general structure of governance and not be used as an alternative vehicle for the passage of law.
- The second solution is to follow the US Founders and only allow passage of a constitutional amendment with a 75% majority ratification, so that trivial measures do not become permanently divisive through a simple majority.
- Defining Corporations as Persons:
- When the U.S. Constitution was ratified, there were no U.S. corporations. British corporations, the East India Company and the Hudson’s Bay Company were declared illegal and not allowed to do business in the U.S. These British Royal businesses had received special monopoly status, and competition from U.S. businesses was forbidden.
- In 1886, in a Supreme Court decision Santa Clara County v. Southern Pacific Railroad Co. gave U.S. corporations standing as “persons.” The decision famously implied that equal protection laws provided by the Fourteenth Amendment applied to corporations as well as freed slaves.
- This decision opened the door for corporations to act as “persons” in funding candidates and influencing legislation. And, eventually in the Burwell vs. Hobby Lobby decision in 2014, corporations were offered protection of religious belief as applies to individuals.
- Corporations by their organizational nature have more economic power to influence politicians than most individual citizens. And the US Founders who designed a system to prevent moneyed interests from trumping the will of citizens, certainly did not envision corporations as super-citizens that marginalized the influence of individuals on their own government.
- The first solution is to separate corporations from the state in the same manner religions are separated from the state, and political parties should be.
- Corporations should be treated as limited economic entities and not as individual persons with political power. As such they should be prevented from undue influence over either politics or culture. They can be considered as free economic associations under the protections of the First Amendment, while being prohibited from engaging in purposes other than commerce.
The above five ways in which special interests have hijacked the US government, as well as the governments of other countries and individual states, show the magnitude that the American governance system has been dragged off its rails and a major reason for the hyperpartisan politics that exist in the United States today.
While political parties were created by some of the founders and have been vehicles for the implementation of many of the other problems listed, they should not be outlawed. Rather, they should be separated from government, allowed to freely operate as associations, and prevented from causing harm by defining the “rails” that limit and guide their activity–just as the constitution does for the government itself.
By the same token, corporations and other organizations should be free to associate and operate, and their “rails” ought to be defined by the purposes for which they are formed. But economic corporations, non-profits, and other identity groups should be separated from governments as are religious organizations. When the U.S. was founded, “religions” were the main type of identity group that had tried to hijack government. For the evolution of the economic sphere and other free social organizations did not develop significantly until the dual rule of religion and state came to an end.
A functional democracy requires the consent of the governed. The items discussed above circumvent and prevent such consent. I have suggested ways these forms of government corruption can be addressed. They are a significant reason what has become popularly called “the swamp” can exist in Washington, D.C. When one realizes how politically difficult it would be to implement these changes that require changing a plutocracy back into a democracy, the extent to which the United States has drifted from its founding principles can become shocking.
There have been examples of such changes being made, some of them require sacrifices on the part of average people. In Ancient Rome, national strikes were required for the plebes to get representation in government. The Magna Carta in England required feudal lords to stand up to the King. Today, working people provide all the resources the government and its cronies consume. Citizens simply have to pull the right levers to begin to restore the idea of government by consent of the governed.