On Intersections of Land, Law, and Literature, from Primitive Territories to the Post-National Future

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Indirect US Democracy and Current Primary Anxieties (April 27, 2016)

In reflecting on the almost mind-numbingly long (and still ongoing) 2016 US Presidential primaries, I have been struck especially by the apparent surprise with which many participants and observers describe the essentially private and therefore undemocratic nature of political parties. My simultaneous fascination with territorialism and American citizenship has made me both sympathetic with the longing for direct democracy behind such surprise—and aware that our territorial history has always precluded anything resembling direct democracy.

Firstly, as to the primary election complaints (and I feel no need to provide links here, as there has been saturating media coverage of these elections over the past year). Various players involved and their supporters have argued about unfairness in the primary process as being undemocratic—whether it be accusations that party leaders are trying to rig the election through arcane rules (such as the Democrats’ “superdelegate” system, which allots votes for individuals that are added to a pool of delegate votes based on intra-state voting, or the Republicans’ incorporation of some state procedures that do not involve direct voters) or through voter disenfranchisement (such as complaints about some Democratic state elections being “closed” to non-party members or complaints that Republicans will vitiate the majority of a front-runner by enabling secondary ballot votes that can allow virtually any individual to win its nomination).

Political parties have absolutely no basis in the US Constitution. However, both American history and current US governmental practice make it seem as if political parties are essential to government. Historically, political parties emerge very early in US history, despite George Washington’s intentional aloofness from such a system: as these excellent Wikipedia articles on early US political parties makes clear, Hamilton and James Madison’s efforts in the Federalist Papers  9  and 10  to argue against political parties not only backfired, but these very individuals became associated with, respectively, the Federalist and Democratic-Republican parties that made a binary partisan political system a norm that has continued, in various forms, to this day. Moreover, political parties permeate our government, eating up massive public resources to further their own monopoly on the civic process. The Democratic and Republican political parties are deeply embedded in virtually all levels of government in virtually every part of the United States, with partisanship inflecting not just nominations for the executive, legislative, and judicial branches at all jurisdictional levels, but also woven into the very electoral process itself: political parties’ primary elections typically take place in the very same places as regular elections and with the same public funding.

It is therefore not surprising that people are surprised that political parties are not actually part of our democratic foundations—for they in history and in current governmental institutions are practically inseparable from our democratic process.

At the heart of these complaints about the primary process is the conviction that a democracy should be direct, with each citizen having a single vote in every election. It is worth pointing out that even a fully “direct” democracy under such definitions (allowing for some reasonable limitations based on, say, age of entering into adulthood) would presumably be mostly confined to electing representatives who would then engage in their own actions within various governing institutions—that is to say, few seem to be advocating votes on every single action of government, considering how unwieldy such a system would be (intriguingly, the proposition process in a state like California seeks to bring more issues to more direct voter results). Even a fairly extreme form of direct democracy, then, would most likely still be of the “representative” form we have, making the idea of directness really just a formal marker of consent by a majority, fostering the illusion that elected individuals act on the behalf of their voters.

There are some obvious ways in which there is indeed massive disenfranchisement of voters in the United States—though it is vital to point out that political parties, as private entities that have no constitutional basis, are not in any way subject to US voting rights regulations. I think it is crucial to point out actual voter disenfranchisement, particularly insofar as it is so often directed against ethnic minorities and the poor. Many state legislatures’ efforts to enforce Voter ID laws, for example, are understood by many as designed to limit the participation of ethnic minorities and the poor, who are less likely to have such identification. As I have written of before on this blog, the most striking disenfranchisement of voters comes with those who have been convicted of felonies in the past, and who remain without voting rights even after serving out their sentences. (Happily, a very positive development has occurred in Virginia, where (as you can read in Sari Horowitz and Jenna Portnoy’s Washington Post reporting) Governor Terry McAuliffe has been instrumental in restoring voting rights to potentially hundreds of thousands of such citizens). Other examples of direct voter disenfranchisement include efforts to discourage university students from registering in many localities. Chillingly, such disenfranchisement can be compared to earlier disenfranchisement of US citizens—most obviously, that of women, which was only ended (along with some other forms of disenfranchisement) with 1919’s Nineteenth Amendment to the US Constitution.

However, we hardly need to look at the private nature of political parties and such open disenfranchisement of voters to question whether direct democracy actually exists in any way, shape, or form in the United States—for our constitutional foundations explicitly prevent direct democracy.

The most obvious and well-known example of the fundamentally indirect nature of US democracy is in the US Constitution’s creation of an electoral college—a body of “electors” who alone bring about the election of a United States (the process is nicely described in this National Archives and Records Administration site ). While the electoral college body is traditionally tied to the results of state votes, the electoral college could in theory consist of members voting any way they want. Most likely introduced as a kind of escape clause in the case of the popular election of a dangerous demagogue (worries about the election of foreign invaders is handled elsewhere in the US Constitution (Article II, section 1)by the curious limitation of the Presidency (alone among all other positions) to a “natural born Citizen”), the electoral college shows that there is an explicitly indirect basis of US democracy. Indeed, the very way in which the US Presidential election process counts votes is, due to the incorporation of states as relatively independent agents in our political process, profoundly indirect at the mathematical level: rather than being elected by a majority of the popular vote, US Presidents acquire vote totals in (usually) winner-take-all contests in each states, which make the mathematics of state totals trump that of a true majority. As is well known, a number of US Presidents have been elected while having fewer votes than their primary opponent (for the list of these four, including, most recently, George W. Bush, see D’Angelo Gore’s FactCheck article). Other elements of indirection, such as the use of the House of Representatives to elect Presidents in the case of an “indecisive” election, are woven into our process (see the US House’s article on this).

Indirectness in our electoral process is hardly limited to the Executive. US Senators were not directly elected until 1913’s Seventeenth Amendment to the US Constitution, with Senators having before then been elected by state legislatures. http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html Another obvious area of indirect democracy is the US Supreme Court: despite the fact that citizens regularly vote for judges in local elections (often with partisan tags attached), the members of the US Supreme Court (along with a number of higher federal courts) are only indirectly appointed.

It is the US Senate—that originally non-democratically elected, often profoundly anti-democratic institution whose “Standing Rules” allow, for example, one Senator to anonymously hold up a legislative bill, which includes the ability of a single filibustering Senator’s ability to hold off all Senate business (except for listening to the fililbuster) for as long as she or he can last, and which currently assumes that sixty percent (rather than a simple majority) of Senators must agree for a bill to even be heard in its chamber—that offers the clue to the most importantly indirect aspect of US democracy. As I have written of before on this blog, the history of the territorial growth of the United States, combined with the balancing of federal and state rights that is central to US government, absolutely precludes anything resembling direct democracy. The US Constitution’s creation of a bicameral legislature, with one house (the House) based on a representational model tied (relatively) to the number of voters (through the districting system) and a Senate whose membership was utterly detached from population numbers and instead keyed to states was clearly designed not just to have a “checks and balances” system harmonizing federal and state rights—it was also clearly designed to allow for the addition of new states. Most states that came into the United States after the original union of former colonies that had been bound together under the Articles of Confederation began as territories, and these were often in large areas with thin populations. The only way to lure these territories—typically forged by a combination of massive settlement into the lands of indigenous peoples, with the US Government intervening in the process through a combination of federal treaty processes and direct military engagement—was to ensure them that they would be represented significantly in the US political process, despite their thin numbers. Direct democracy must be sacrificed in such a regionalist model (an issue that is also deeply affecting current politics in the United Kingdom, about which I have written extensively in this space, such as here and here).

Personally, I hope that all the angst about the alleged unfairness of the US political party primaries in this election cycle will lead to some more general reflection on the profoundly anti-democratic stranglehold two private groups have on our democratic process. As I have indicated above, I think it is vital that those considering the issue not make the mistake of assuming that there is an actually direct US democracy hiding beneath the veils of the two parties that have grown so powerful as to seem indistinguishable with it.