Can a Constitutional Convention Reclaim Democracy?

"This is corruption," thunders Lawrence Lessig in the cover story of this week's Nation, "Not the corruption of bribes, or of any other crime known to Title 18 of the US Code. Instead, it is a corruption of the faith Americans have in this core institution of our democracy" He's describing Congress's "pathological dependence on campaign cash," the reason why "it answers -- as Republican and Democratic presidents alike have discovered -- not to the People, and not even to the president, but increasingly to the relatively small mix of interests that fund the key races that determine which party will be in power." Lessig's attack on the "Fundraising Congress" is remarkable for being nonpartisan and non-ideological in essence. You get the idea from what I've quoted already. The problem isn't that a progressive agenda desired by Nation readers is blocked, but that Congressional dependence on and deference to fundraisers prevents radical or necessary reform of any kind, whether desired by liberals or conservatives, from getting enacted. This dependence, Lessig claims, is the reason why liberals can't push through health care reform, and the reason why social and fiscal conservatives can't push through the reforms they desire. Entrenched interests who resist pressures for change from "left" and "right" alike are the true conservative force in American politics, and they've rendered Congress incompetent to fulfill its role in the federal government.

Lessig attempt to refute apologists who claim that fundraising doesn't corrupt politicians because donors support those who already agree with them. His first answer is a little sophistic. "Even if...the money doesn't corrupt the soul of a single member of Congress," he writes, "it corrupts the institution -- by weakening faith in it, and hence weakening the willingness of citizens to participate in their government." But when he imagines an apologist arguing, "Maybe we should work hard to convince Americans that they're wrong," Lessig's response is more forceful.

Here a second and completely damning response walks onto the field: if money really doesn't affect results in Washington, then what could possibly explain the fundamental policy failures--relative to every comparable democracy across the world, whether liberal or conservative--of our government over the past decades? The choice (made by Democrats and Republicans alike) to leave unchecked a huge and crucially vulnerable segment of our economy, which threw the economy over a cliff when it tanked (as independent analysts again and again predicted it would). Or the choice to leave unchecked the spread of greenhouse gases. Or to leave unregulated the exploding use of antibiotics in our food supply--producing deadly strains of E. coli. Or the inability of the twenty years of "small government" Republican presidents in the past twenty-nine to reduce the size of government at all. Or... you fill in the blank. From the perspective of what the People want, or even the perspective of what the political parties say they want, the Fundraising Congress is misfiring in every dimension. That is either because Congress is filled with idiots or because Congress has a dependency on something other than principle or public policy sense. In my view, Congress is not filled with idiots.

In Lessig's view, ideology is trumped by money. In some cases, he claims, money throws up ideological smoke screens to disguise naked self-interest, exploiting the ideological divide of the American Bipolarchy. "Every issue gets reframed as if it were really a question touching some deep (or not so deep) ideological question," he writes, claiming that drug companies, for instance, convinced right wingers that the current Democratic health care reform plan would include "death panels" and the like. I think that Lessig may underrate the pervasiveness of sincerely felt ideology, or the possibility that entrenched corporate interests can be ideological in their own right. But he needs to argue against the idea that "it is ideology rather than campaign cash that divides us" because the solution he proposes to the impasse will require at least early collaboration across ideological and partisan lines.

The solution is twofold. It includes a package of such predictable reform proposals as public financing of elections. This is an issue on which liberals are often tone-deaf to how the proposal sounds to people who aren't liberals. To them, it can only sound like setting up the state (and implicitly the party in power) as the gatekeeper who determines which candidates (after "clearing certain hurdles," Lessig writes vaguely) will be granted funds. Such suspicions may seem irrational to liberals or progressives, but I like to think that the objection could be addressed in a manner satisfactory to all people by striving to eliminate money as a factor in politics so that candidates are dependent on neither the state nor corporations. My ideas along this line are rather draconian (e.g. eliminate TV campaign advertising) but I'd be glad to entertain alternate proposals.

The first priority for Lessig is finding a way around Congress (and around the Supreme Court) to enact those reforms. His answer is a constitutional convention, which can be called by two-thirds of the states. All those states need to agree on, he notes, is the need for a convention; "those applications need not agree on the purpose of the convention." That means that conservatives and liberals, progressives and libertarians, etc., can work separately yet in concert to make the convention happen, deferring their differences until the convention itself. Each group will have to risk the others winning in order to have its own chance to influence the nation's future, and in any event the amendments proposed at such a convention would still have to be ratified by the states the same way they are when they come out of Congress.

Lessig sums up:

Whether on the left or the right, there is an endless list of critical problems that each side believes important. The Reagan right wants less government and a simpler tax system. The progressive left wants better healthcare and a stop to global warming. Each side views these issues as critical, either to the nation (the right) or to the globe (the left). But what both sides must come to see is that the reform of neither is possible until we solve our first problem first--the dependency of the Fundraising Congress. This dependency will perpetually block reform of any kind, since reform is always a change in the status quo, and it is defense of the status quo that the current corruption has perfected.

Whether this leaves it to self-styled moderates to make a principled case for gridlock is a question for another time. For now, it seems that the mere existence of apparently intransigent ideological conflict in the country is cause enough to have a convention so the rival ideologies can hash out a new set of first principles for government, or discover that they're not such ideologues as they thought themselves to be.