Tuesday, October 05, 2010

Tom Friedman can't see the elephant (or smell the rotting pig)

Sandy Levinson

Jack, among others, has commented on Tom Friedman's column in the Sunday New York Times calling for a third-party in 2012. Friedman quotes Stanford political scienitst Larry Diamond: "We basically have two bankrupt parties bankrupting the country." Friedman sounds like James Madison in condemning those now "leading" our country for a basic lack of republican virtue (as in "Republican Form of Government," not maximizing the interests of the Republican Party, which the Madison of the Federalst almost certainly would have regarded--like the Democratic Party--as a basically wicked "faction"). There is much to agree with in the column, and I think it's altogether possible that we will have a four-party election in which David Petraeus will be the Republican candidate, Sarah Palin will represent the Tea party, Barack Obama the Democrats, and Michael Blomberg (with Evan Bayh) the Friedmanite "responsible centrists."

But why can't Friedman connect the basic dots and realize that he is simply regurgitating one aspect of early 20th century Progressivism, i.e., the denunciation of wicked politicians and the valorization of elites ostensibly committed to the "common good" instead of the "interests," without recognizing what at least some Progressives, including Woodrow Wilson and Teddy Roosevelt (who are, interesting enough, very high on the enemies list of Glen Beck, who might well run as Palin's vice president), that we have a radically defective Constitution? Indeed, that period brought us a number of important constitutional amendments, including the 17th Amendment that at least some Tea Partiers are trying to repeal in order to give selection of senators back to state legislatures.

Jack's previous post altogether accurately emphasized the importance of reforming the Senate, but he is fact way too moderate if he thinks that it would be enough to stop with getting rid of the filibuster, however desirable that would be. It is idiotic, pure and simple, to continue with a system of representation that was rightly denounced in Philadelphia as "vicious" (by Rufus King of Massachusetts) and "evidently unjust" (by James Madison of Virginia). I strongly recommend that everyone read the debates as collected in the marvelous The Founder's Constitution, edited by Philip Kurland and Ralph Lerner, Volume 2, 182-239, available online thanks to the Liberty Fund, which has also reprinted it in a marvelously produced (and affordable) five-volume version. Madison described equal representation in the Senate in Federalist 62 as a "lesser evil" against the greater evil of no Constituion at all, given Delaware's (and other small states') extortionate threats to walk out and torpedo the whole project of constituitonal reformation. The "Great Compromise" that brought us the Senate was not so evil as the other "Great Compromise" that entrenched the slavocracy by offering them a bonus in the House of Representatives (and the electoral college) thanks to the 3/5 Compromise, but it is, at the end of the day, no more defensible. And we live with the consequences of both, though one might accurately say, at least some of the time, that we've made real progress on overcoming the heritage of chattel slavery even as we are being taken over the cliff by the other Great Compromise. (It did take a catastrophic war that killed 2% of the entire Ameican population to get rid of the formal institution of slavery. What will it take before even a Rhodes Scholar like Friedman is able to recognize that even the victory of a third-party in 2012, as unlikely as that may be, would be of minimal importance so long as the rest of the political structure bequeathed us in 1787 continues intact.)

Friedman concludes by calling for new leaders who are willing "to look Americans in the eye and say: 'These two parties are lying to you. They can't tell you the truth because they are each trapped in decades of special interests." Well, yes. But might not "the truth" include the information that they (and we) are trapped in a Constitution that was none too good in 1787 and is truly awful today? And, of course, the worst single feature of that Constitution is not even the Senate, but Article V, which, by basically making it impossible to amend the Constitution with regard to anything significant, creates an overwhelming incentive for smart people like Friedman to prattle on at his Georgetown and Silicon Valley and Davos dinner parties about the need for "better" and "more virtuous" people to take over our political system without ever, for even a single instant, recognizing the 800-pound elephant (or, perhaps more accurately, at least metaphorically, stinking pig) in the middle of the dining room.

Yes, I know I sound like a crank, just like Cassandra.


"Yes, I know I sound like a crank, just like Cassandra."

I guess that means that no one will believe you? Well, like Madison on the Senate, it isn't THAT bad. Small favors.

" ... to prattle on about the need for 'better' and 'more virtuous' people to take over our political system ...."

Assuming such people exist and are willing to serve, can they be elected? We are a government of laws, not of men and women. But such laws are implemented, applied, etc, by men and women. Can a virtuous man or women survive politically to take over the system? Even if, then how long would it take for politics as usual (e.g., survival, reelection) or Citizens United to taint such a virtuous person? Much of the problem may be the lack of "better" and "more virtuous" voters.

"But might not 'the truth' include the information that they (and we) are trapped in a Constitution that was none too good in 1787 and is truly awful today?"

I'm about half way through Steve Shone's "Lysander Spooner: American Anarchist" and Spooner's views on the Constitution are most interesting. (The book runs only 104 pages of text.) A research project I have been working on for much too long includes Spooner as abolitionist. Randy Barnett is an admirer of Spooner and has a website on him and his works. While Shone focuses upon Spooner as anarchist, Randy's interest seems to be Spooner as a libertarian. A major writing of Spooner deals with the unconstitutionality of slavery published in 1845. According to Shone, some of Spooner's views on the Constitution changed over the years.

"Yes, I know I sound like a crank, just like Cassandra."

The problem, of course, is that about 99 and 44/100ths percent of people who sound like cranks ARE cranks...

Sandy, the Constitution has problems. But there are other problems, too. You can't blame it all on a Constitution which is routinely being violated anyway. And if you don't recognize other sources of problems, even if you get the constitution you want, (Not bloody likely, even people who agree the Constitution has problems often don't agree with you as to what they are.) the other problems with just bring it down.

And if you don't tone down the hyperbole, even people who might agree with you won't listen. "Truly awful"? Things like that are a good way to marginalize yourself in this country, even if that's what you really think. Haven't you ever suspected that even real cranks didn't start out as cranks, but became that way as a result of the way they reacted to others not signing onto their causes?

Are you sure you don't *like* the role of Cassandra? You're certainly trying out for it hard enough.

I appreciate Brett's comment, but let me ask the following question: Is Tom Friedman, especially in his recent columns, much less of a Cassandra than I am, inasmuch as he repeatedly predicts a dire fate for the United States if it doesn't get on the right track? The difference between us, I suggest, is that he pays no attention whatsoever to the role that our formal political structures, as established by the Constitution, play, whereas I do. I surely do not believe, incidentally, that the Constitution explains everything that is problematic about our present situation. That would be absurd to argue. But I do believe it has to be taken into account in any serious analysis, which, obviously, Friedman and almost all of his co-pundits utterly fail to do.

As to Tom Friedman, some of us have determined he is a tool, and the fact you are better than him is not really a high bar.

"has to be taken into account in any serious analysis"

That's fine. The rub is how it is taken into account and what is deemed necessary to do once we do.

In my first comment under this thread, I put out Citizens United as bait. With the Tea Party, the Kochs, Murdock, Chamber of Commerce, etc, we are seeing some of the results of Citizens United developing as the November elections approach. The Supreme Court 5-4'ers look like they are looking for more cases to take to promote corporate interests. Since making my comment, I became aware of Michael Kent Curtis' article "Citizens United and Davis v. FEC: Lochner on Steroids and Democracy on Life Support" available via SSRN at:

As soon as I finish Shone's book on Spooner, I'll get to Curtis' article, which runs 101 pages double spaced. The V Conspiracy recently had posts on a Lochner revival. Eventually, if the conservatives get their way, we may see an effort to undo Brown v. Board of Education that sticks in the conservatives' craws, especially after the election of the first African American President in 2008. Part XII of Curtis' article reads: "A Revived Lochner Era." Ah, for the "good old days."

That would be absurd to argue. But I do believe it has to be taken into account in any serious analysis, which, obviously, Friedman and almost all of his co-pundits utterly fail to do.

You're a serious scholar of the Constitution. Tom Friedman is an idiot whose views aren't worth the paper they're printed on. If you want to educate the public, you can't rely on the news media at all, much less the pseudo-intellectual parts of it like Friedman. It's going to take a long period of preparation and (sadly) a crisis before anyone will act.

Sandy, I think we are, regrettably, over-endowed with problems capable of ruining the nation. But I think the dysfunctional political class is central, in that a better political class could make the current system work, or reform it. while the current political class could probably ruin ANY system. Because they've found a way to avoid having to comply with the formal system, where it annoys them.

I think, in designing a new Constitution, (And our current one is on it's last legs, IMO.) you not only have to design a system which would work well if the people running it exhibited good faith. You need to design a system difficult to undermine by people of bad faith.

And, in particular, it needs to be designed to resist the 'exploits' that have already proven to work against the current constitution. That's why I place a high priority on reforming the judiciary. Not trivial stuff like how long the terms last, but the core matter of who choses the judges. If you can nominate and confirm the judge in your own case, you have an unbeatable house advantage. That's the exploit that's allowed a federal government of enumerated powers to become today's leviathan.

Further, I'd note that constitutional reform is extremely unlikely to originate from Congress. They're people who are doing well under the CURRENT system, and they don't NEED a working constitution, it would just get in their way.

Any new constitution is going to have to originate at the state level, via a constitutional convention. Which means it's going to have to be attractive to a supermajority of states.

For this reason, I don't think you've got much chance of ditching your hated grand compromise...

I agree with Brett that the political class is dysfunctional -- I'd call it corrupt -- but I disagree strongly with his prescriptions.

Let's begin with how the political class comes into existence. Basically, it originates in the Senators and Representatives we send to Washington. They should be generally representative of us, but they aren't. There are multiple reasons for this, and multiple consequences as well.

Start with the Senate. It can't be representative because it's designed not to be. That alone warps the policies which can make it through Congress, making them often contrary to what a national majority really wants.

The same is true for the House, though to a lesser extent. While it's representative on some level, at least in design, gerrymandering by the various state legislatures eliminates a lot of this in practice. Again, we see a legislative body which doesn't represent the nation and thus can't deliver the policies which the people want.

Then there's the problem that Senators and Congressmen stay in office too long. That has a number of bad consequences, among them a sense of entitlement and privilege by those in Washington. Reasonable term limits (18 years) would help end that.

Another contributing factor to the corruption of the political class is the movement from government to lobbyist and back. We need to get former government officials out of Washington and back to private life for good periods of time. For 5 years or so after they leave office, they and their close relations should not be allowed to receive compensation of any sort from any business which lobbies or does business with the government.

Then there are the more usual sources of corruption. Sadly, the Constitution failed to stop Congress from voting privileges and benefits to itself. An amendment which restricts them to a salary alone is necessary to force them to live like people instead of a ruling oligarchy.

There are some more solutions, but that'll do for now.

I despise term limits. If there is someone in Congress that I like, and who is doing a good job, I see no reason to set an arbitrary limit on how long they can serve. It is anti-democratic.

There are 2 ways to make representatives more responsible to the voters.

1. get rid of lobbyists

I know the details may be tricky, but we have to end the special access that lobbyists get.

2. don't allow expenve campaigns

Again, the details are a problem, but long expensive campaigns serve no purpose other than to pump too much money into the process of electing representatives, and that will always cause problems. Give each candidate X hours of free tv time, Y hours of free radio time, hold Z number of debates, and then let us vote.

I agree with Mark Field (I'll not tied myself to all his discussion, but in general) and find Brett's comments here helpful, particularly his advice to the professor.

I'm wary of term limits, though for judges, it is probably a good idea. As to lobbyists, what is a lobbyist? Is the ACLU a menace? It lobbies Congress as does civil rights groups generally and so forth.

I don't know what "expensive" means. It will cost money to run a campaign. But, free air time etc. are credible ideas. I'm wary about campaign finance limits in many cases though. I think there are constitutional limits there.

Joe, it's not expensive to run a campaign if you're not allowed to spend money on tv and radio advertising. I would limit campaign spending to just enough to fund a small staff of advisors. Constitutional limits would not be a problem, because we are writing this into a new constitution.

Some thoughts on term limits:

I used to be opposed to them for the reason bartbuster states. I've changed my mind somewhat over the last 15 years. IMO,

1. Previous term limits were much too short. Research shows that it takes about 10 years or so of doing something to become an expert in it. After that, we'd like to take advantage of the expertise for a while. Two Senate terms would allow too little of the latter, so 3 would be necessary. I see no reason to limit Representatives more than Senators, hence my suggestion of 18 years.

2. While in theory it makes sense to let the voters decide, in practice the advantages of incumbency are such that the seat becomes nearly a sinecure. We need a flow of citizens into and out of Congress in order to broaden the perspectives within Congress. Districts today are plenty large enough to supply qualified candidates.

3. Staying in Washington too long changes people. It isolates them from real life and the problems of everyday Americans. My suggestions above are intended to break a vicious cycle that has led us to look more like an oligarchy than a republic.

Mark, I think that my changes to election financing would eliminate many of the advantages of incumbency. If they did not, I would be willing to reconsider my opposition to term limits. However, I have no idea how you can quantify whether incumbency is giving someone an unfair advantage.

Unless campaign finance restrictions are very carefully designed, they may have the unintended effect of favoring incumbents (who usually have a name recognition advantage). I'm leery of that as the solution simply because we've been regulating campaign finance for 35 years and the situation has gotten worse.

Yes, some of that is due to bad SCOTUS decisions, but a lot of it is the self-interest of those designing the restrictions. It's easy for the public at large to impose term limits, not easy at all to draft and approve (by what method?) complex campaign finance rules.

As for quantifying the advantages of incumbency, I agree that it's hard. My point is not that I want to see Ds replace Rs every time (nor vice versa), but that if the district is strongly D, multiple Ds can serve while the would-be oligarchs go back to live with the peasants for a while.

"An amendment which restricts them to a salary alone is necessary to force them to live like people instead of a ruling oligarchy."

This would, I assume, function somewhat like the 27th amendment? IOW, it would be swiftly circumvented by some bit of sophistry which the courts would rush to endorse? Or perhaps simply be violated, and the violation declared a "political question"?

I think reforming the judiciary is central, but it's hardly sufficient by itself. The problem of the political culture in this country is that the political class have become self-perpetuating. They've learned to game the system, so as to reduce the representative nature of our government to a minimum.

The 'leadership' of Congress, members elected from wildly gerrymandered districts, miniature one party states, are an example of this. Over time they've altered the (Non-constitutional, Sandy!) rules of Congress so as to transfer most of the power to themselves. Any regular member who challenges them is swiftly marginalized, denied committee assignments, their bills ignored, and the party establishment working against them.

As a result, popular opinion on any number of issues simply can't effectuate itself through elections anymore. Nominally we're a democracy, functionally an oligarchy.

I think it's become so messed up, the only hope is to scrap the whole system, and start from scratch. But that won't erase the lessons the political class have learned in subverting a democracy, so the ways they've done it need to be guarded against.

On the question of the Senate, let me amplify my remark:

All roads to constitutional amendment, short of simply repudiating the Constitution in toto, lead through Article V. And article V amendments must, whether they originate with Congress or the states, be ratified by a supermajority of states.

Unless you assume that the numerous small states are going to voluntarily reliquish their current position, no Article V amendment is going to lead to the Senate becoming a strictly representative body.

The only road to that is by complete repudiation of the Constitution, probably involving a breakup of the current US. And I seen no likelihood that such a break up would lead to the US being reconstituted as a single nation.

Unless that's what you're adovcating, Sandy, what's the point of talking about abolishing/reforming the Senate? What's YOUR route there, that the small states can't block?

The constitutional limits I referenced BB are basic free speech and related issues of fundamental importance I would not want to amend. As to cost, a small number of advisers, rent, travel and a myriad of other stuff costs money. Not allowing advertising will favor some over others.

Mark Field's comments on term limits are appreciated. But, I don't know if the fact members can stay longer than 18 years, I'd like numbers as to how many do, will necessarily change things much. The current senator in Alaska, for instance, was appointed by her parent, right? Biden's son was going to run. Rearranging the deck chairs on the Titanic, it seems w/o more.

The constitutional limits I referenced BB are basic free speech

People who join the military give up some of their basic rights, including free speech. I have no problem with restricting the rights of people who run for political office

Not allowing advertising will favor some over others.

I would allow advertising, with all candidates getting the same amount. How is that not fair?

"I would allow advertising, with all candidates getting the same amount. How is that not fair?"

I don't know about "fair", but "candidates" aren't the only people who have 1st amendment rights. Plenty of non-candidates want to run advertising during campaigns, too.

So, whatcha gonna do? Try to stop everybody else from advertising? Attribute advertisements made by other people to the candidate you think they favor, and so reduce their quota?

And how about the advertisements that are called "newspaper endorsements"? And the slanted coverage news outlets give as an in kind gift to candidates they like?

The whole concept of rationing advertising in the name of 'fairness' is, and always has been, unworkable.

Maybe it's time for Mourad to reintroduce us to British election procedures that run for a limited period of time, etc, and can be workable. Without some sort of limits, money talks, and who's got the money to "buy" elections? Will money solve the problems we have been discussing?

They can make a system like that work for two reasons:

1. Nothing like our robust freedom of speech.

2. Their elections aren't on a predictable schedule.

I'm not keen on losing my freedom of speech, though I notice a lot of campaign 'reformers' place little value on it. And do we really trust politicians with the power to decide when elections will be held?

A quick search tells me that the average member of the House serves about 10 years, while the average Senator about 12. However, the leadership serves much longer: in the 90s, the top leaders (Speaker, Majority Leader, etc.) had served an average of 27 years in the House, and I suspect (but couldn't find) that something similar is true for the Senate. I expect that term limits would cut both the average and this extreme variance.

If all got the same amount of advertising, that would favor incumbents and those well known. On this issue, also, I often agree with Brett. As usual, not in every case, but his comments in reply to you are generally sound.

The military has limited rights and is not really an on point model for those running for office and others involved (see Brett's post).

Perhaps limits on leadership roles then? How does it works for chief judge status? Is that for a span of years, or does someone one like Judge Kozinski serve until he takes senior status or something?

Many of the comments on this thread demonstrate C. Wright Mills' theses in his 1956 "The Power Elite." Steve Shone's new (2010) book on Lysander Spooner points to Mills for comparison of views. Perhaps there is no way to eliminate the power elite so long as money talks, especially politically. I remind myself of my characterization of "Lottery Democrats" who are convinced by the power elite that high taxes for the wealthy are abominable, voting against their own interests because when they hit the lottery, they don't want to pay taxes on their winnings. This demonstrates the real power of money talking. Repeat lies long enough and they become believable. Of course there are also poor but principled conservatives who like the snakes at Boston's Franklin Park Zoo don't have a pit to hiss in but stand with the wealthy conservatives on principle, as they are also guiled by the power elites' principal. Yes, money talks - and can lead to even greater riches for the few Daddy Warbucks out there. Perhaps "It's the Economy, Stupid" has been replaced by "It's the Economy of the Stupid Voters."

I'm a big fan of election by lot. Presumably the average member of Congress is qualified for leadership positions, if all the leadership are doing is making sure the joint runs properly. Select random members for the leadership positions.

Of course, ideally we should get rid of gerrymandering. I'd advocate a system where we replaced first past the post elections with revocable proxies. Some members might end up voting the proxies of millions of citizens, some the proxies of tens of citizens, (I suppose we'd set a threshold for actual entry to the physical chamber, and just let anybody with a proxy vote electronically.) but the shape of the districts would cease to matter, if being on the losing side of a local election didn't result in you being left unrepresented.

"Perhaps there is no way to eliminate the power elite so long as money talks, especially politically. "

I think you've largely got that backwards. We've got a power elite in this country, and they use that power to get themselves money. You know, like having spouses given zero work board positions by regulated companies? A bit of insider trading on the side? (Congressmen are remarkably prescient in their stock picks, on average...)

But the problem is the power, not the money. You may think the corporation that rents a Congressman has power thanks to their money, but it's the Congressman who's getting money thanks to their power.

Brett's point:

"I think you've largely got that backwards."

suggests he may also have the answer to the riddle "What came first, the chicken or the egg?"

Brett can't imagine an elected official with principle being seduced by the power elite with their principal. Let's go back to when campaigns were not that expensive. Were elected officials less influenced by the power elite's money that just might not have been necessary for campaigning? Today, without the money, there is no power. Long term elected officials in safe districts who sit on appropriate committees attract money that they don't need for reelection; the power elite flock to them, regardless of party affiliation.

Maybe the chicken/egg riddle could be looked at as an order of chicken hash with a poached egg on top, something to enjoy. (Here in the Boston area the preference is for corned - or roast - beef hash.)

By the Bybee, have there been studies of the financial returns achieved by the power elite on the moneys provided by them to elected officials? Surely this is a profit center greater for the power elite than the elected officials.

I have been working on for much too long includes Spooner as abolitionist. Randy Barnett is an admirer of Spooner and has a website on him and his works. While Shone focuses upon Spooner as anarchist, Randy's interest seems to be Spooner as a libertarian. I am, inasmuch as he repeatedly predicts a dire fate for the United States if it doesn't get on the right track? The difference between us, I suggest, is that he pays no attention whatsoever to the role that our formal political structures, as established by the Constitution, play, whereas I do. I surely do not believe, incidentally student aid, that the Constitution explains everything that is problematic about our present situation.

That's interesting: It looks like somebody has written a routine to take the other comments, and generate vaguely relevant appearing gibberish from them in which to embed spam.

I just finished reading Michael Kent Curtis' article referenced in an earlier comment. It is a terrific read. Curtis has written extensively on the First Amendment Speech Clause. He does not pull his punches in this article. While the article is lengthy, its spacing makes for fairly quick reading. Here's what he says at the top of page 47:

"The Constitution declares that it is created by 'We the People.' It is based on the idea that the 'people' are sovereign. The House of Representatives and now the Senate are elected by the people in their states. In practice, the people also choose the president.170"

"170 But see, Bush v. Gore, 531 U.S. 98 (2000)"

I'll long remember this footnote.

Here's what he says at page 58:

"Opponents of slavery and the 'slave power' attacked slavery and slave power hierarchy. They strongly criticized the Dred Scott decision. Indeed Abraham Lincoln did so in his first inaugural address, with Chief Justice Taney (the author of the Dred Scott decision) sitting close by. Similarly, President Obama criticized the Citizens United decision in his State of the Union address (with Chief Justice Roberts in attendance--to the consternation of some."

These teases may encourage some to read Curtis' article that includes an interesting tie-in to the Lochner Court.

Today's WaPo includes E.J. Dionne's column on corruption and Citizens United (redundant?) and Tom Toles' political cartoon on a new 'gate scandal in a similar vein.

Yes, money talks, louder and louder.

Check out Tim Rutten's column in today's (10/13/10) LATimes titled "In this election, follow the money" which closes with:

"The real architect of all this was the brilliant Ohio financier Mark Hanna, who pulled together big money's contributions to create the first truly modern national campaign on behalf of William McKinley's successful run for the presidency in 1896. Hanna once remarked: 'There are two things that are important in politics. The first is money and I can't remember what the second one is.'

"It will be a tragedy if we can't remember either."

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