The debacle of the 2000 presidential election made it clear that weare operating a badly frayed nineteenth-century democracy intwenty-first-century America. Voter participation is shockingly low anddeclining each year. At best only one-half the eligible electorateactually votes in a presidential election. Turnout for Senate and Houseelections in nonpresidential years rarely exceeds 40 percent. Localparticipation is even lower. And on the whole, those who actually voteare richer, whiter, and better educated than those who don't.
Our techniques of registration and voting are mired in the distantpast. Almost no effort is made to use advanced technology and modernprocedures to increase the base of registered voters or to make votingmore convenient. Voting machinery is badly outdated, and there areblatant inequalities in the distribution of up-to-date votingtechnology. An unacceptably high percentage of the ballots in any givenelection are not accurately counted--especially in poor and minorityareas. We disenfranchise large numbers of citizens, heavily male andminority, on the basis of youthful criminal behavior, further increasingthe electoral gap between rich and poor. The very process of choosing apresident through an electoral college instead of a direct popular voteviolates the basic democratic principle of majority rule.
At every level, our elections are run in an appallingly amateurishmanner by individuals selected for party loyalty, not merit. We refuseto acknowledge that administering a vibrant democracy is a primeresponsibility of government. Our laws governing ballot access areopenly designed to favor the candidates of the two major parties at theexpense of third-party challengers or independents.
Our elections are unduly influenced by wealthy donors in a processthat all too often looks more like an auction than an exercise inself-government. Our campaign financing system invites cynicism andcorruption while delegating the power to select candidates and set thenational agenda to a minuscule, unrepresentative segment of thepopulation. Our patterns of representation unfairly favor incumbents andturn legislatures into self-perpetuating oligarchies. Our campaigns aredominated by saturation TV advertising that inevitably spirals down intosloganeering and name-calling, thus providing immense advantages towell-financed candidates--without producing an informed electorate.Finally, the very idea of an independent judiciary functioning abovepolitics as the ultimate guardian of democracy, individual rights, andthe rule of law stands imperiled.
Failure to maintain physical infrastructure invites accidents. If, inthe face of the 2000 presidential fiasco, we do not take immediate stepsto update and repair our frayed and outdated democratic infrastructure,we will suffer more democratic accidents in the future. Votingparticipation will continue to decline. Respect for the democraticprocess will continue to erode, ultimately putting at risk the nation'sgreatest asset--respect for the law. Our nation's agenda, shaped by therich, will continue to speak to the needs of only a slice of thepopulation. Our elections will continue to be administered as amateurishexercises in partisan self-interest and our legislatures will becomeeven more oligarchic. Politics will increasingly be viewed by Americansof all ages with rueful distaste instead of heartfelt pride.
It need not be this way. Americans should begin building a democracyfor the twenty-first century. Although some necessary reforms are notlikely to win enactment anytime soon, it is important to stimulatepublic debate about what it will take to reclaim and redeem ourdemocracy. Here is the core list of urgent reforms.
Every citizen should be encouraged to vote--and every vote shouldcount. Registration and voting need not be burdensome chores. Themechanics of voting and registration must be brought up to date, withparticular attention paid to narrowing the electoral gap between richand poor.
Democracy is too important to leave to amateur patronageappointees. Election administration should be upgraded by developinga nonpartisan core of election officials who are devoted to democracyand capable of applying uniform rules that ensure equal treatment of allvoters.
Voters should be given greater opportunities to registerpreferences. Reflexive reliance on gerrymandered single-memberdistricting should give way to experiments with more representative waysto organize elections. Examples include repealing the ban on multimembercongressional districting and using nonpartisan districting commissions.
Big money should not trump electoral equality. The soft-money andissue-advertising loopholes in the current campaign finance laws must beclosed and subsidized access to the media provided until we decidewhether to adopt full public funding of the campaign process.
Beyond these measures, spelled out in greater detail below, aremore-far-reaching measures that will require the assembly of a powerfulconstituency for democratic reform--abolition of the current electoralcollege, for example, and a constitutional amendment explicitlyprotecting the right to vote. But in the short run, there are many waysto start overhauling our outdated election system and revitalizing ourdemocracy.
Increasing Voter Turnout
During the nineteenth century, about 75 percent of the eligibleelectorate actually voted. Today, after a century of steady decline,about 50 percent of the eligible electorate vote for president.Nonpresidential turnout hovers around 40 percent. When votingparticipation drops below 50 percent, elected officials lack a truemandate to govern. Worse, since the actual voting electorate is richer,whiter, and better educated, the nation's politics tilts dramaticallytoward the agenda of the haves who vote rather than the needs of thepoorer, less-educated citizens who stay home. Given the enormous effortexpended over the last 50 years in removing formal barriers to voting,why is voter participation declining?
At the end of the eighteenth century, elections in the United Stateswere casual, laissez-faire events. Interested citizens gatheredvoluntarily on election day and expressed their preferences orally orthrough ballots printed and provided by a preferred candidate orpolitical party. During the nineteenth century, the state's role in theelectoral process expanded in at least three dramatic ways. First, itfell to the state to ensure a secret ballot; this necessitatedsubstantial governmental control over the mechanics of voting. Second,in order to prevent ballot confusion and to stop fraud, the state wasgiven power to promulgate an official ballot listinggovernment-sanctioned candidates exclusively. Finally, at the beginningof the twentieth century, the state assumed responsibility formaintaining lists of qualified voters, who were obliged to register inadvance of the election.
The result of greater state involvement in the electoral process wasa decrease in fraud, and fairer, more orderly elections. But the newstate-imposed restrictions contributed to a dramatic decrease inelectoral participation. Within years of their adoption, voter turnoutin American presidential elections dropped from around 75 percent tobelow 50 percent in 1924, and it has almost never exceeded 60 percentduring the twentieth century. Political historians such as Walter DeanBurnham have demonstrated that the "reforms" that led to voterregistration schemes were not just neutral good-government measures toreduce fraud but deliberate efforts by elites to reduce mass turnout.
Despite the significant growth of state power over the electoralprocess during the nineteenth century and the corresponding increase inobstacles to voting and running for office, there has not been aparallel twentieth-century evolution in the state's affirmativeobligation to make democracy work by encouraging participation. Lowturnout and feeble politics are a chicken-and-egg problem. Low turnoutis both the symptom of democratic decay and a cause of worseningdisease. A more substantively engaging politics, of course, would invitehigher turnout. But in the meantime, investment in techniques designedto increase voter turnout would, by itself, help to revive politics.Here are some options.
A democracy day. By statute and custom, federal and most stateelections take place on a Tuesday in November, forcing most workingpeople to take time off to vote, or to shoehorn their vote into theshort period when the polls are open before or after work. Virtuallyevery other developed democracy either schedules its elections onweekends or declares election day a holiday. Why force citizens tochoose between work and voting? If Congress changed the dates forfederal elections to a weekend, the states would almost certainlyfollow. Alternatively, Congress could move election day to Veterans Day,a patriotic holiday that falls very close to existing election day. Ademocracy day on Veterans Day would help change voting from a chore to acelebration.
Extended voting. By tradition, American elections are held over aspan of hours on a single day, although Oregon has adopted an extendedprocess that allows voters to cast ballots by mail over a period ofseveral weeks. Many democracies allow voting to take place over bothdays of a weekend. At a minimum, presidential voting should be carriedout over a 24-hour period from coast to coast, thereby minimizing theimpact that publicized election returns in the East have on votingpatterns in the rest of the country.
Better voting technology. The mechanics of voting are appallinglyoutdated and unequal. Some voters have access to relativelysophisticated optical-scanning voting devices, while others vote bypaper ballot or with notoriously inaccurate punch-card machines. Votersin many cities use outdated machines that are no longer beingmanufactured and cannot be properly maintained. Inadequate votingtechnology leads to mechanical breakdowns, long lines at the polls, andthe inability to count thousands of ballots, including those of would-bevoters who give up in frustration and leave without casting theirballot. At a minimum, access to acceptable voting technology must bemade generally available to all voters on an equal basis.
We should develop technology that allows voting with at least theconvenience we now associate with banking and buying gasoline. Internetvoting has been initiated in Arizona and proposed as a general reform.So has the development of touch-screen voting machines similar to ATMs.Discussion of advanced technology for voting must, however, consider theimpact of such new methods on the electoral divide that separates richand poor. Internet voting, unless carefully supplemented, will tend toincrease the already unacceptable imbalance between rich and poorvoters. There is also the danger of new forms of electronic votingfraud.
A uniform absentee policy. Absentee ballots are important topermit the elderly and infirm to vote, in addition to ensuring thatpersons out of the district on election day, such as militarypersonnel, can vote. But our current absentee ballot procedures arehopelessly complex, with each local election board applying its ownarcane system. The resulting complexity and nonuniformity causesconfusion, reduces turnout, and provides ample opportunities for unfairbehavior, even fraud.
Congress could provide a uniform rule for absentee ballots in allfederal elections. The states would almost certainly adopt the federalstandards. Thanks to advances in telecommunications, all ballots mightsomeday be absentee, in the sense that they may be cast from a remotelocation, using advanced voting technology. Whether such decentralizedvoting would mean the loss of the civic solidarity associated withinteracting at a polling place is an important topic for discussion.
Honest and modern ballot design. Currently, the form of theballot is designed at the local level by patronage appointees withlittle or no technical expertise. Partisan interests often shape thecontent, typography, and layout as local officials jockey for favoredspots on the ballot. At a minimum, we should develop a procedure fordesigning a fair and usable ballot for all elections. Technology willplay a role, but there is no need to wait for a technological fix beforetaking steps to prevent massive voter confusion of the sort thatdisenfranchised so many voters in Florida last November.
Voting as a civic duty. Unlike many important functions ofcitizenship--such as jury service, military conscription, payment oftaxes, cooperation with the census, school attendance, and compulsoryvaccinations--we continue to view voting as wholly optional. But isn'tour common stake in a vibrant and functioning democracy sufficient tojustify not merely an opportunity but an obligation to vote? Voting isconsidered a civic duty in Australia, and turnout is 90 percent.
Some argue that it is Orwellian to coerce political participation andthat democracy may not benefit from the votes of unwilling participants.But devising a convenient "opt out" mechanism for dissenters couldaddress such objections while emphasizing the civic duty of all toparticipate in democratic governance. In effect, we could shift theinertial burden to persons who do not wish to vote by requiring them to"opt out," rather than requiring voters to "opt in."
A legally established "duty" to vote could be encouraged by mildincentives--such as recognition stickers for license plates orpreferential access to certain minor public services--instead ofimposing even mild sanctions. The mere discussion of the issuehighlights the [affirmative] obstacles to voting that should be removed.
Reforming Voter Registration
The obstacles to voter registration are wholly state-created, yetthe state takes almost no responsibility for minimizing them. The netresult is that wealthier, better-educated segments of the electoratesurmount the transaction costs in far greater numbers than their poorer,less-well-educated countrymen do. What can be done?
Government's duty to register voters. We could begin by shiftingthe burden of voter registration to the state. The United States is theonly developed democracy that places the onus of registration solely onthe prospective voter. Every other democracy acknowledges an obligationon the part of the state to assemble the list of registered voters,either by imposing a duty to register to vote or by takingresponsibility for assembling the lists. If Great Britain, Canada,France, and Germany assume the task of assembling lists of eligible voters, why shouldn't the United States adopt similar policies?
Same-day voter registration. Six states currently allow same-dayvoter registration. Not surprisingly, five of the six boast the highestlevels of voter turnout in the nation. The principal argument againstsame-day voter registration is the increased risk of fraud. But thereare easy antifraud remedies--such as requiring proof of identity,evidence of residence, sworn affidavits, and the use of segregated paperballots for same-day registrants.
Automatic voter registration. Another option is to registervoters automatically whenever they pay taxes, get a driver's license,graduate from high school, file a change-of-address form with the postoffice, sign up for the draft, register a car, buy stamps, submit aclaim for unemployment insurance, enroll in welfare programs, orotherwise interact with the state. This is merely a question ofdeveloping the technology and putting it into use.
Modernization of voting records. Many states continue to maintainvoter registration records by hand. Even those states that havecomputerized the data often maintain separate local systems that cannotcommunicate with one another. Imagine the impact if automobileregistration and licensing records were nonuniform and were processedmanually. Uniform computerization would permit rapid checks for fraudand would make it much easier to register voters and to changeregistration when a voter moves. It would make same-day registrationeven easier, and might even allow for tapping into parallel databaseslike utility, telephone, and school registration records.
Expand the Electorate
Most formal obstacles to voting left over from the eighteenth andnineteenth centuries have been abolished. Restrictions based on race,gender, wealth, and residency have been overturned by constitutionalamendment or invalidated by the Supreme Court. Two significant formalobstacles remain.
Enfranchisement of criminal offenders. A number ofstates--Florida is a prime example--continue to bar persons convicted offelonies from voting, even after they serve a full sentence. Floridathus disenfranchises more than half a million voters, including 15percent of the male Afro-American vote, often as the result of youthfulbrushes with the law that would not have been deemed felonies ifcommitted by children of privilege. It would be interesting to determinehow many African Americans in Florida are barred from voting because ofa drunk-driving conviction.
Empowerment of resident aliens. Almost no voting privileges areafforded to resident aliens, who pay taxes and serve in the military. (Afew cities allow resident aliens who are parents to vote in school boardelections.) With few exceptions, the degree of political participationfor resident aliens has not been an issue in the United States, althoughit has been the subject of careful consideration in the Europeancommunity, where many localities, including Paris, grant voting rightsto resident aliens.
Public Management of Democracy
Through agencies ranging from the Federal Election Commission tolocal boards of election, patronage appointees of the two major partiesrun the electoral process in the United States. At best, theadministration of our elections is unprofessional; at worst, it isblatantly if not corruptly partisan. In recent years, we have evolved anexcellent nonpartisan system of judicial administration. There is noreason why a nonpartisan electoral civil service, trained to operate anefficient and fair democracy, cannot be substituted for the existingpatronage system. Indeed, reforming the administration of our electoralprocess may be the single most important thing we can do to shore upAmerican democracy. Reforms in technology, improved voter registration,and enhanced turnout will be extremely difficult to achieve withoutcapable election officials.
A democracy budget. Our decaying democratic infrastructure inpart reflects a failure to acknowledge that democracy is an expensiveform of government. But we tend to adopt cut-rate solutions to running ademocracy, leaving the financing of the democratic process to thepolitical parties or to the wealthy. Every level of government shouldadd a line item to cover the costs of administering democracy. Teasingout the real cost of democracy would focus attention on repairing theinfrastructure and would create a process for debating neededimprovements.
Shoring Up the Right to Run for Office
The Constitution says nothing about the right to run for office. Infact, it was not until 1968 that the Supreme Court recognized a weakconstitutional right to appear on the ballot. Widespread confusion overrules governing ballot access affects competition for major-partynominations as well as the role of third parties and independents.National and state laws need to be reformed.
Rules for presidential primaries. When should the presidentialprimary elections take place, and who should be able to participate inthem? Currently, each state legislature determines the date of theprimary, often in consultation with national party leadership. Thealmost random order of the primaries may give undue influence to thevoters of some states while shutting out others from the nominationprocess. Some have argued that uniform presidential primary dates beset, perhaps by region, on a rotating basis. Others have urged that anational presidential primary be held on a single day.
Rules governing access to the presidential primary ballot are alsoset at the state legislative level, usually after consultation with thestate leadership of each major party. Virtually all states require thepresidential candidates to be party members. But rules varydramatically. Some states allow all viable candidates easyprimary-ballot access. Others, like New York, make ballot access sodifficult that it has taken bitter and expensive litigation in order toplace major candidates on the New York Republican presidential primaryballot in the last two elections. Given the national stake in electing apresident, shouldn't there be a uniform set of rules governing access tothe presidential primary ballot?
The role of subordinate parties. Under existing rules, athird-party or independent candidate for president must expend verysignificant resources to obtain ballot status in all 50 states. Thisdepletes funds the candidate needs for the general election. Given thenational nature of the presidential election, should we seek a uniformstandard? The goal would be to discourage totally frivolous candidaciesbut eliminate the needless draining of third-party resources. If thirdparties are viewed as fringe players who provide little more than anopportunity to cast a protest vote, ballot access rules should remainstringent. If, however, third parties are viewed as important sources ofnew ideas and as crucial competition for the two major parties, ballotaccess should be provided on liberal terms. Until we have a seriousdiscussion about the role of third parties, ballot access rules will bedriven mainly by the desire of the major parties to protect themselvesfrom competition.
Primaries and challenges to incumbents. Last year, DemocratHilda Solis of Los Angeles successfully challenged incumbent CongressmanMatthew Martinez in the party's primary election. It was front-page newsin California, and it put other incumbents on notice. How easy should itbe to launch a primary challenge in one of the major parties? Must theinsurgent candidate be a party member? For how long? How many signaturesshould be required on the nominating petition? Should decisions aboutprimary rules be made by the political party or be imposed by the state?Should the state be entitled to mandate a primary when the party wantsto use other forms of nomination?
And who should be entitled to vote in a party primary? Even morefundamental, who should make the decisions about whether to have a partyprimary and who should be allowed to vote in it? The party leadership?The state legislature? The electoral majority through a referendum?Courts through constitutional adjudication? Congress through uniformrules for federal elections? Whatever the remedy, current procedureswork to give incumbents something close to lifetime tenure. Term limitsare a poor substitute for contested primaries. We need a broad nationaldebate and consistent rules.
Repairing Representative Government
The inevitable growth of large, complex political units doomed theexperiment with pure, direct democracy that flourished in the NewEngland town meeting. In our representative democracy, the electoratechooses legislators to act as proxies reflecting the will of the people.But our current structure of representation is inadequate to the task.
For one thing, incumbents rarely lose. The re-election rate for theHouse of Representatives is usually well above 90 percent and oftenapproaches 100 percent. In the 2000 election, every legislativeincumbent running for re-election in New York State was successful. Whyis it so hard to unseat an incumbent? One potent tool protectingofficeholders is their ability to gerrymander electoral-districtboundary lines (and such incumbent-protection deals are oftenbipartisan). New computer technology allows extremely fine judgmentsabout where to draw precinct borders which sometimes even slice throughmultifamily buildings. Ironically, because it is impossible togerrymander Senate lines, it is now easier to unseat a Senate incumbentthan a member of the House.
The 1962 Supreme Court decision mandating a "one person, one vote"standard for the apportionment process cured one significant evil butleft open ample opportunities for electoral manipulation. The Courtrecognizes a cause of action protecting the political minority from thegrossest forms of electoral gerrymandering, yet it has proved impossibleto enforce the right. In fact, the high court has actually made thingsworse by explicitly allowing incumbency protection as a validjustification for districting. Traditional requirements of contiguityand compactness provide some check on political gerrymandering, but theymay hinder efforts to establish interest districts that do not coincidewith a geographical unit. Unless we can devise methods for returning adegree of competition to the electoral process, voters will rationallystay home.
How can we ensure that the political proxies chosen through theelectoral process actually reflect the society at large? No consensusexists about how to decide what groups or interests deserve legislativerepresentation. While the Supreme Court has insisted that the principleof "one person, one vote" be respected and that race not play adisproportionate role, we have no guidelines about who or what should berepresented. American democracy has tended to ignore the problem byconcentrating on geographical representation. But geographical districtsreflect only one form of political representation. What about economicinterest, such as agriculture or manufacturing; economic status, such asrich or poor; age; political affiliation; gender; race; religion; sexualpreference; marital status; parenthood (or nonparenthood); educationalstatus; and a host of other possible interest groupings?
Certain groups have historically been excluded from fullparticipation in the electoral process--first through formal exclusion,and then by informal techniques. Race, gender, and poverty have been thethree most obvious bases for exclusion. Even after the removal of formalrestrictions, the actual "representation" of racial minorities, women,and the poor in the nation's legislatures remains woefully inadequate.
The Supreme Court has imposed an almost impossible burden on effortsto draw lines to enhance the political power of racial groups that havehistorically been excluded from participation in American democracy. TheCourt has forbidden the drawing of lines when race is the dominantmotivation, but has permitted race to be a factor in the process. Andthe Court's current margin of support even for this ambiguous doctrineis a precarious five to four. It is important to put forth more vigorousforms of minority representation, racial and otherwise.
Then again, it has been argued that "packing" large numbers ofminority voters into a given district to enhance minority representationactually dilutes the political power of minorities by wasting minorityvotes in "safe" minority districts while draining the votes fromsurrounding districts that might elect nonminorities sympathetic tominorities. One option is to rely on "influence" districts, whereminority voters can affect the outcome and thus compel the candidates topay serious attention to minority voters' concerns. But influencedistricting is not likely to produce more minority representatives. Andit is possible to draw geographical lines with predictable racialcontent yet not give influence to other political minorities, includingwomen.
Enriching Democratic Choice
American elections are almost exclusively winner-take-all contests:single-member-district, first-past-the-post exercises in which thewinner of an electoral plurality is awarded the seat and is vested withresponsibility for representing both the winners and losers. When fusedwith a regime of political gerrymandering, the American system may actto disenfranchise both winners and losers. In a legislative districtwith a 65-35 political gerrymander, the political minority consisting of35 percent of the electorate are, literally, incapable of electingofficials who share their views. Unless their disenfranchisement isbalanced by a reciprocal disenfranchisement of their opponents in someother district, the minority are out of political luck. Similarly, evenmembers of the political majority are marginalized, since the electionis a foregone conclusion. Such a process is made to order for reciprocalgerrymandering, which leaves real electoral power in the hands ofpolitical elites who choose the candidates.
Efforts to enrich voter choice by experimenting with proportionalvoting systems have generally been rejected in the United States becausethey are thought to threaten electoral stability. But there are severalways to enrich voter choice without sacrificing stability. For example,modern technology makes possible an instant-runoff system that allows avoter to cast both a first- and a second-choice ballot. If a voter'sfirst choice is not among the top two vote getters, the ballotautomatically reverts to the second choice. Such a system is currentlywidely used in Ireland, and to elect the mayor of London.Experimentation at the local level with such an instant-runoff techniquecan tell us whether it is a device to enrich voter choice with no lossin stability.
Cross-endorsements and fusion tickets. Laws in most states forbidcross-endorsement of candidates by more than one political party. Thesearchaic regulations could be repealed, thus allowing a voter to cast aballot for a candidate with a chance to win and also express apreference for the platform of a third party. While the Supreme Courthas upheld the ban on cross-endorsement as a matter of federalconstitutional law, the practice may well violate many stateconstitutions. In any event, its role as a device to protect the twomajor parties against competition could be stressed as part of agrass-roots campaign to repeal the existing cross-endorsement bans, allof which date from the beginning of the twentieth century.
Multimember districting and cumulative voting. Moving away fromuniversal adherence to single-member-district, first-past-the-postconstituencies toward multimember constituencies should be considered,both to provide more accurate representation and to enrich voter choice.When multimember constituencies are linked to voting procedures such ascumulative or "bullet" voting that permit voters to target their votesto particular candidates, minority voters gain a richer method ofexpressing political choice. The Congressional Black Caucus advocatesrepeal of the federal statute banning use of multimember constituenciesin congressional elections precisely because, if properly used,multimember constituencies linked to cumulative or bullet voting providericher choices for many minority voters.
Proportional representation. Many democracies allocatelegislative seats in proportion to the share of the popular voteobtained by each political party. Although this approach has beenassociated with coalition governments and political instability, it ispossible to link proportional representation with traditionalfirst-past-the-post systems to create hybrids that provide voters withgreater choice while preserving stable democratic majorities.
A Constitutional Right to Vote
The essence of democracy is the right to vote. But the United StatesConstitution--the most successful democratic charter in humanhistory--does not guarantee the right to vote, even for presidentialelectors. Over the past 50 years, the U.S. Supreme Court, confrontedwith the lack of a broad protection of the franchise in theConstitution, has usually resorted to the 14th Amendment's equalprotection clause when struggling to find constitutional grounds forupholding the right to vote. Congress has also provided importantprotection to voters who were once excluded from the franchise becauseof race. But as the Supreme Court's decision in the Florida presidentialelection case made clear, the equal protection clause is not an adequatesubstitute for an express constitutional guarantee of the right to vote.Indeed, as the Court's unfortunate ruling demonstrates, in the hands ofhostile or insensitive justices, a federal constitutional right to voterooted solely in the equal protection clause can be deployed as anobstacle to the effective protection of the right to vote by the generalpopulation. Thus, although it is clearly a long-range project, we shouldconsider pursuing a federal constitutional amendment protecting theright to vote.
The amendment process at the state constitutional level tends to beless demanding than at the federal level. A parallel strategy at thestate level, pursuing a state constitutional protection of the right tovote, would be an important reinforcement of democracy and would providea grass-roots organizing strategy.
Money and politics. If Florida had never happened, the 2000presidential election would have been a failure because it was financedby enormous contributions from wealthy interests, often with nolimitation or disclosure of the source or amount of the funds. Theloopholes and omissions in our existing campaign finance laws haverendered the existing regulatory regime wholly inadequate.
Improved disclosure. The least controversial aspect of campaignfinance regulation is disclosure. But two principal flaws underminecurrent disclosure rules: the failure to collect and publish theinformation in a format likely to inform the electorate, and the hugeloophole that permits massive campaign spending to occur with nodisclosure at all.
Most data for federal elections is processed effectively and quicklyby the Federal Election Commission and made available on the Internet.But most states have not attempted to computerize the contribution data,much less make it readily available to the electorate. For disclosure tobe useful, it must occur quickly, and in a format likely to come topublic attention.
Enormous sums are expended to influence elections via so-called issueads that skirt contribution limits and disclosure laws by avoidingcertain magic words (such as "vote for") while delivering anunmistakable campaign message favoring or attacking a particularcandidate. Such black-market spending may well exceed the amount spentopenly by candidates and supporters. While serious First Amendmentissues would be raised by an across-the-board challenge to the right ofpolitical anonymity, compelled disclosure of the source of funds thatpay for ads clearly aimed at affecting the outcome of a particularelection would probably pass First Amendment muster.
Limiting campaign contributions. A rough consensus holds thatlimits may be placed on the sources of campaign donation. Under existingrules, corporations and labor unions are not permitted to contributedirectly to candidates. The Supreme Court has even held thatcorporations may be barred from expending corporate money to influenceelections. Similarly, the Supreme Court has upheld limits on how muchindividuals can contribute to a candidate. But the regulatory system hascollapsed because of enormous loopholes that permit corporations, laborunions, and wealthy individual donors to pour virtually unlimitedamounts of money into the campaign through phony issue ads andsoft-money contributions to political parties--and to do so under thefiction that the parties will not divert the money to politicalcampaigns. Unless these loopholes are closed, wealth will continue todrive out participation by ordinary people. But as I have indicated, thedecay of our democracy goes far beyond the malign influence of money.
No one can predict the long-term implications of the 2000presidential election for American democracy. While public reaction tothe election may lead to greater voter participation based on a renewedbelief that every vote matters, it could also lead to greater voterapathy based on the belief that voting can't make a difference. Whichcourse is ultimately chosen depends in substantial part on whethereffective action is taken to address the many problems that infect ourdemocratic infrastructure. In order to seize this moment, three stepsare necessary: First, we must catalog the wide range of interconnectedproblems hobbling American democracy. Second, we must identify pragmaticsolutions that can be implemented with reasonable dispatch. Third, oncewe have agreed on an agenda for structural reform, we must developstrategies to turn ideas into action--through nothing less than anationwide pro-democracy movement.
