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ladybusinessWelcome to part two of my political books roundup! last time I talked about four of the five books I read. Today, I will cover the last of the set, The Great Suppression by Zachary Roth, in detail.
As I said last time, if Ratfucked enraged me, The Great Suppression terrified me. It succeeded in making me think there really was a concerted effort underpinned by a toxic core belief in democracy being undesirable:
Central to the book's argument is the idea that all of the tactics conservatives are using now have long roots in our country's political and legal systems, often dating back to the Founders themselves. The book is divided into one chapter for each tactic. I'm going to briefly go over each chapter before returning to the book as a whole.
The Great Suppression starts at a similar place as Ratfucked: with the GOP freakout after Obama's first victory. Obama's victory turned out record numbers of voters — but what kind of voters were they? One popular strain of conservative thinking was that these voters elected Obama out of ignorance. "Conservatives had always believed that elections work — or at least should work — a certain way: people make a sober analysis of which candidate can best govern, then vote accordingly. The masses who had turned out for Obama, though, didn't seem to act that way. In the eyes of many conservatives, we were witnessing the rise of the stupid voter." What to do, then, about these ignorant voting masses? The conservative answer is to make it harder to vote.
In June of 2013, the Supreme Court ruled in Shelby County v. Holder that Section 5 of the Voting Rights Act was no longer needed. Essentially, the five conservative justices decided, despite mountains of evidence to the contrary, that the South was no longer racist and should no longer be singled out for special scrutiny of its voting laws. This was a huge conservative victory, but was actually only part of a movement that had been gaining momentum for a long time, and dated back to the Founders. The book summarizes:
In fact, conservatives dating back to the Founders have not seen voting as a fundamental right, or democracy as a net positive. Voting was originally reserved for landed white men, who, it was felt, could best exercise "sober voting" — and, not incidentally, protect private property rights. Every advance in enfranchisement has led to rounds of conservative hand-wringing about ignorant voters and the tyranny of the masses. Shelby County is merely the crowning achievement of half a century's efforts to undermine the Voting Rights Act. The Supreme Court itself noted in its ruling on the Florida recount that there is no constitutionally guaranteed right to get to vote for electors to select the President.
It seems obvious, having read the Constitution, but I had honestly never thought about it this way, or realized what a concerted effort conservatives have made throughout the history of this country to undermine universal suffrage. It was a sobering chapter.
The next chapter was on the attacks on campaign finance laws. Everyone knows about Citizens United, but the story starts long before that. In 1976, the Supreme Court ruled in Buckley v. Valeo that "preventing corruption was the only permissible rationale for laws that limit political money, meaning the goal of ensuring rough political equality was forbidden." In 1971, conservative Yale Law professor Ralph Winter wrote, "A limit on what a candidate may spend is a limit on his political speech." This would become the core of the argument in Citizens Untied. The First Amendment had historically been used to protect minorities and unpopular groups. Now, Winters was attempting to use it to "defend the right of the wealthy and powerful to spend as much money as they want to influence elections." But this new argument overlays an older idea: that, just as richer, better-informed citizens deserve more voting power, so too would granting powerful corporations a bigger role in government would benefit society.
Money in politics had not really been an issue until the late 19th century, as campaigns relied largely on volunteer manpower drawn from government and party employees. However, in 1883 Congress passed a ban on political contributions that parties had hitherto required of government workers. Then things got complicated:
From that point onward, conservatives "began to developing a positive argument for why corporations actually should play a central role in politics and government: essentially, because business leaders, like those elite elected officials envisioned by Hamilton and Madison, were better than ordinary Americans." This idea, of course, is deeply offensive to me. But the book substantiates this claimed approach with a panoply of quotes and examples. Of course, the people weren't necessarily buying this argument either, and campaign finance laws gained ground throughout the turn of the century, later spurred in the late 20th century by the Watergate scandal. However, by the time Winter made his free speech argument, conservatives were turning it around. Winter's argument was central to winning the Buckley case. Under the logic of that decision, the Supreme Court began to further chip away at campaign finance laws, dismantling the powerful apparatus that the post-Watergate laws had put together.
In response, ordinary Americans mobilized, and in 2002 Congress passed the McCain-Feingold law barring soft money and taking several other steps to lessen the influence of big money on campaigns. And then Citizens United happened. What I was surprised to learn was that the case was initially very narrowly argued, focused only on getting Citizens United's anti-Hillary movie to be able to be aired on-demand. Justice Roberts instead decided that the case should be expanded, and ordered that Citizens United be reargued with a much broader set of questions presented. The arguments again relied on First Amendment rights. Most of McCain-Feingold was struck down, and corporations could now spend unlimited amounts of money on politics. But it didn't stop there:
The only kind of corruption lawmakers could limit was the direct exchange of official acts for money. Other, less direct ways monied interests could affect politics were deemed off-limits to regulation. The book then goes on to detail what kinds of influence the rich have on politics now.
The next chapter is about something called preemption: state legislators ruling that local governments couldn't pass various types of laws. These laws are usually health regulations, anti-discrimination laws, minimum wage laws, and environmental regulations. However, these present a threat to corporate profits, and ALEC (American Legislative Exchange Council), the powerful and secretive conservative lobby group, has led a push to ban localities from passing these laws. This trend began with Big Tobacco:
While these antismoking bans were mostly eventually repealed, the strategy itself took hold. The NRA used it in the 1990s to get 46 states to enact gun control preemption laws after several big cities began passing stricter gun laws. Other industries soon joined them. By the time of the Obama era, these industries weren't doing it alone: they had the help of ALEC.
After the Republican and Tea Party wave of 2010, progressives had turned to local government to enact their agenda, seeking measures "that would, among other things, improve conditions for workers, curb pollution, and bar discrimination." In response to the wave of progressive local legislation, ALEC realized the threat to its members bottom lines, and, like Big Tobacco in the 1980s, realized that the fight would now be won or lost at the local level. Preemption was the way to get around this.
Of course, by "get around this", I mean "circumvent one of the few places where democracy is still functional and progressive." Of course, progressives will oppose preemption when local government is trying to protect workers and the environment. But progressives didn't wring their hands about preemption when conservative localities were forced to go along with state laws and court rulings legalizing marriage equality. Here is how The Great Suppression explains it:
So again, conservatives have a very different vision of democracy. Voting was originally structured to protect property interests. Corporations are now given the same rights as people, further protecting the accumulation of wealth. And local democracy is being undermined by those who want to protect free enterprise at the cost of other rights. The chapter concludes:
The next chapter is about conservatives exploiting structural weaknesses in our political system to give the GOP an advantage. Part of this chapter goes over territory covered in Ratfucked: the GOP used dark money and the way redistricting works to give themselves majorities in both state legislatures and the US House. This book, too, pulls out the breathtaking example of Pennsylvania, where 48.8 percent of the vote went to Republicans, but this translated into 13 of the state's 18 seats, or over 72%. It's appalling.
But if the House is now structured to favour the GOP at least into the next decade, the slant in the Senate is even more permanent. The Senate gives two votes to each state, and this vastly privileges less populous states — where conservatives are more likely to live — over more populous states. Here are the numbers:
The effects of this imbalance are far from random. It means that rural interests have more representation than urban interests, and since people of colour tend to live in larger population centers, this also means the Senate slants white by default. This is also where the Big Sort comes up again: as we've sorted ourselves into like-minded communities, urban areas are becoming increasingly Democratic and rural areas increasingly Republican. So Democrats tend to come from more populous states — the ones underrepresented in the Senate — while Republicans come from less populous states. As the book says, "[t]he imbalance gives the GOP a major leg up in the fight for control of the Senate: even though Republicans senators received twenty million fewer votes than did Democrats and the independents who caucus with them, Republicans hold a 54-46 majority."
Of course, there's one more antidemocratic feature to the Senate: the filibuster. What I didn't know, and what The Great Suppression taught me, was that the filibuster was created entirely by accident. In 1805 Aaron Burr, in his capacity as vice president, decided the Senate had too many duplicative rules and urged senators to scrap some. But in getting rid of some of these, senators failed to provide for a way to restrict debate. The first filibuster didn't even take place until 1837, and there was no way to stop it: it simply wasn't in the rules. It wasn't until 1917 that a cloture rule was added, which allowed debate to be cut off if two-thirds of senators supported a motion to end debate. Today's rule was not in place until 1975, when the two-thirds requirement was reduced to three-fifths, or 60 votes.
Still, what was born as a tactic of extremes and desperation has been turned into a tool of regular obstructionism by the GOP. We can measure this by the number of cloture motions (that is, motions to cut off debate) at any given point, which is a good indicator that a filibuster is threatened or happening. To do this, we look at the times when both the White House and the Senate were controlled by the same party, which are the times a minority party would deploy the filibuster. Between the start of 1963 to the end of 1968 (Presidents John F. Kennedy and Lyndon B. Johnson, with Democratic control of the Senate), there were only 17 cloture motions. It reached 130 during George W. Bush's four years enjoying Republican control of the Senate. But under Obama, this practice absolutely exploded. During the 6 years that Democrats controlled the Senate under Obama, there were 505 cloture votes — incredible. This obstructionism blocked a lot of progressive legislation, like the public option under Obamacare. And then the GOP has the gall to complain that Obama hasn't done enough to help the country recover!
This is how The Great Suppression sums it up near the start of the chapter:
And then, at the end:
So much for the legislature. But there's another way that conservatives are finding to advance their agenda. The next chapter is on conservative judicial activism, referred to in conservative circles as "judicial engagement". We've all heard conservatives railing about judges legislating from the bench and ignoring the will of the people. But as conservatives are finding it increasingly difficult to make progress by winning elections, they're seeking to bypass the democratic process altogether by "urging the same unelected judges whose influence they once decried to rein in legislative majorities."
But despite the recent history of conservatives bemoaning judicial activism, "the idea that judges should strike down morelaws, not fewer, in fact has deep historical roots on the right. [...] Proponents of this approach often proudly perceived themselves to be acting explicitly in opposition to democratic values, and their rhetoric was in sync with the broader backlash to democracy that took shape during the late nineteenth century." In fact, the book provides a quote from Christopher Tiedeman, who was one of the foremost advocates of this early judicial activism. He wrote in 1886: "the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man — the absolutism of a democratic majority."
So what does judicial engagement protect from the tyranny of the majority? If you guessed property rights, you're correct! Roth writes: 'This era saw the development of a conservative jurisprudence based on the view that the Constitution bars the government from taking a wide range of steps aimed at regulating businesses or transferring wealth." Judges went on to strike down hosts of laws that would boost pay, improve conditions for workers, and protect easily exploited women and children. This approach reached a high point — or a low one — during the era of the New Deal, during which the Supreme Court nixed administrations and acts aimed at dragging America out of the Great Depression. Two of these major rulings "rested on a strikingly narrow interpretation of what counts as economic activity under the Commerce Clause. Even coal mining — a vast industry stretching from Montana to Pennsylvania — did not qualify as interstate commerce, according to another ruling, putting it, too, beyond the reach of regulation by Congress." These rulings came from the court despite Roosevelt and Congress acting with strong public support to fix a once-in-a-century economic crisis. But that didn't matter.
But it was also the end of an era. After that, fifty years of liberal judicial activism from the Supreme Court, especially during the 1950s and 1960s, "turned conservatives into ardent defenders of the sanctity of the popular will." But in recent years, as popular will has turned against conservatives, they have begun looking to judicial activism to once again save insulate them — and property rights — from democracy. Or, to use one of the arguments conservatives themselves make, to rely on the will of an earlier majority — the majority that ratified the Constitution. Of course, that this majority was made up exclusively of white male property owners goes unmentioned
Suzanna Sherry, a law professor at Vanderbilt University, wrote in a 2013 essay: "When the Court fails to act — instead deferring to the elected branches — it abdicates its role as guardian of enduring principles against the temporary passions and prejudices of popular majorities." This neatly encapsulates the approach of the right to judicial activism today. And Chief Justice Roberts has presided over some of the most antidemocratic rulings to come out of the court, in Shelby County (from the voting chapter) and Citizens United. And even when Roberts upheld the individual mandate of Obamacare, Roberts approved a more restrictive view of the Constitution than the Court has endorsed since before the New Deal.
But conservatives are trying to go further yet. In a chapter titled "Pushing the Boundaries," Roth writes about a 2011 paper that has become very popular in conservative circles. It's by Rob Natelson, a legal scholar based in Montana, and it examined something called an Article V Convention. This is a way of amending the Constitution that requires two-thirds of the state legislatures to call for a convention of state lawmakers. Here's the state of this movement now:
But isn't amending the Constitution an extreme measure? Don't conservatives love the Constitution? Roth argues, "To its most avid proponents, Article V is a way to use the Constitution to protect the Constitution, which they consider under threat from both the decades-long growth of the federal government and from the president's unapologetic use of his executive power on issues like immigration, gun control, and climate change. Indeed, the campaign has gained strength at a time when Constitution-worship is everywhere on the right." Of course, Roth also notes something else: "it's hard not to notice that for many on the right, our founding documents are primarily a device for short-circuiting democracy — and an alternative source of political authority that seems more likely to support the end goal of limited government."
This underlines once again the right's opposition to majority rule at a time when the majority is slipping away from them. Roth summarizes:
Article V is not the only movement conservatives have gotten behind to change the rules: they want to take away the people's ability to elect senators, too. Of course, senators were not directly elected until 1912 with the passage of the Seventeenth Amendment. Before then, they were selected by state legislatures, which, again, were basically propertied white men. Madison, for example, wrote that the "Senate should come from, and represent, the wealth of the nation." The idea is that senators are supposed to represent the states as sovereign entities within a federal union, not their citizens. This movement hasn't gained as much momentum, but is still something the right is pursuing, and many conservatives have never made peace with the Seventeenth Amendment.
In response to this amendment, conservatives pushed "a zealous fetishing of the Constitution", campaigning to more and more Constitutional instruction in schools, holidays to celebrate it, and other measures. While this may seem ideologically neutral and civics-based, the goal was to present the Constitution as "a defense against all the problems of the age." U.S. solicitor general James Beck wrote in a 1924 essay (with a foreword by President Coolidge) wrote that the Founders' "main purpose was to defend their property rights from the excesses of democracy." This is the view of the Constitution the right was pushing.
And then there is the Electoral College. If the Founders didn't trust regular people to elect their senators, they certainly didn't trust them to elect the president. Thus the two-step, antidemocratic Electoral College, in which state legislatures choose presidential electors and then these enlightened souls would choose the president. Of course, the development of a party system meant that the most undemocratic parts of the Founders' vision for the Electoral College were never realized, as electors soon began running on party slates, and almost all states soon let voters rather than state legislators choose electors.
However, the system that remains is still convoluted and deeply problematic. All but two states award their electoral votes on a winner-take-all basis, so whether you win by one vote or one million doesn't matter. Then there is the fact that the allocation of votes isn't even proportional to the size of the states: every state gets at least three, creating a bias, like in the Senate, towards smaller states. This system has handed the presidency to the candidate who got fewer votes four times since the Founding, or one out of fourteen elections.
To combat this, liberals and good-government types have been promoting a push to effectively end the Electoral College without changing a word of the Constitution. This is called the National Popular Vote (NPV), and the idea is to get states to pass legislatures pledging that they'll award their electoral votes to the winner of the popular votes. It's simple, elegant — and constitutional. Not only would this mean the people's choice truly would become president, but it would end the distinction between swing states and safe states. Candidates would have to campaign across the whole country.
But among conservatives, there has been a mirrored push to protect the Electoral College. As Roth states, "It's a campaign that underscores perhaps better than any other issue how, for many conservatives, the Constitution's antidemocratic features are those most worth fighting for. And it highlights just how weak the right's commitment to democracy really is." But some Republicans aren't content to just defend an undemocratic system: they want to skew it even more towards the GOP.
After having read Ratfucked, I can't even imagine the terror of this plan. The district maps — bought by dark money, won by lies, drawn in secrecy and sometimes illegally — would decide the presidential election, too. It's obscene.
And finally, the last tactic showcased in this chapter is straight up lawbreaking. Giving up on democracy entirely, Charles Murray advocates for the existence of what he calls a "Madison Fund." This fund would defend Americans — typically business owners — who decide to simply ignore government regulations. You read that right. Roth explains: "The idea is that if thousands of people insisted on drawing out these cases rather than simply paying fines and moving on, the government wouldn't have the resources to enforce the law." Charles Murray is best known among liberals for positing that genetic factors (as well as environmental ones) explained racial differences in IQ scores, as stated in his book The Bell Curve (1994). It's almost hilarious that a flaming racist advocates civil disobedience, of all things, to combat the rise of federal power.
The last chapter of The Great Suppression is more optimistic: it's about liberal efforts to push back against this agenda. But honestly? After reading Ratfucked and The Great Suppression back to back, I'm angry and terrified. Yes, there are liberal efforts to fight back. But the case laid out in these two books is simply too compelling: conservatives are fucking over this country. As Roth sums up: "Far from being a universally accepted American value, democracy in the United States has always been contested and contingent."
So what's the moral of the story? I can think of nothing else but: keep fighting. VOTE.
Coming back to the earlier books in this series: Game Change and Double Down gave me hope for the 2016 election. The 2008 and 2012 elections had their dire moments. It was chaos behind the scenes. But Obama won, and I think Hillary Clinton can win. Big Girls Don't Cry showed me a whole feminist history to Hillary Clinton and helped me accept her as my candidate. And Ratfucked and The Great Suppression showed me the importance of staying engaged and staying informed.
I would recommend all of these books, to various degrees, as they have each been vastly informative in their own ways. But I would perhaps recommend the latter three books — Big Girls Don't Cry, Ratfucked, and The Great Suppression — very strongly. They expanded my political horizons, and galvanized me to become more involved in local politics.
Democracy is under threat right now, assaulted on all sides by conservatives as they rig the system in their favour. Trump threatens to roll back centuries of progress. Whatever else you do in 2016, do this:
As I said last time, if Ratfucked enraged me, The Great Suppression terrified me. It succeeded in making me think there really was a concerted effort underpinned by a toxic core belief in democracy being undesirable:
Scratch beneath the surface of the arguments for voter ID laws, and you often discover a core belief [...] that voting isn't really for everyone. Look closely at the push for more assertive judges, and you can't help but notice a striking dismissiveness, at best, about the democratic process. Examine the effort to eviscerate campaign finance laws, and you'll find a scathing contempt for the principle of political equality.
In other words, these fights aren't just isolated spats over process, or self-interested interparty skirmishes. They reflect fundamentally divergent worldviews. One sees democracy as a normative good in itself, and as crucial to any claim to political legitimacy. The other sees it as at best a method for achieving effective government, and at worst a blueprint for chaos.
That leads to a troubling conclusion: Most of us like to think that although Americans might disagree profoundly on many issues, and even on values like how to balance liberty with the common good, we all share a commitment to democracy as the best way to resolve these differences. In fact, that consensus may be far more fragile than we'd like to think.
Central to the book's argument is the idea that all of the tactics conservatives are using now have long roots in our country's political and legal systems, often dating back to the Founders themselves. The book is divided into one chapter for each tactic. I'm going to briefly go over each chapter before returning to the book as a whole.
The Great Suppression starts at a similar place as Ratfucked: with the GOP freakout after Obama's first victory. Obama's victory turned out record numbers of voters — but what kind of voters were they? One popular strain of conservative thinking was that these voters elected Obama out of ignorance. "Conservatives had always believed that elections work — or at least should work — a certain way: people make a sober analysis of which candidate can best govern, then vote accordingly. The masses who had turned out for Obama, though, didn't seem to act that way. In the eyes of many conservatives, we were witnessing the rise of the stupid voter." What to do, then, about these ignorant voting masses? The conservative answer is to make it harder to vote.
In June of 2013, the Supreme Court ruled in Shelby County v. Holder that Section 5 of the Voting Rights Act was no longer needed. Essentially, the five conservative justices decided, despite mountains of evidence to the contrary, that the South was no longer racist and should no longer be singled out for special scrutiny of its voting laws. This was a huge conservative victory, but was actually only part of a movement that had been gaining momentum for a long time, and dated back to the Founders. The book summarizes:
In all, since 2006, twenty-one states have passed laws — voter ID measures, cuts to early voting, strict registration rules, and a host of other devices — that have made it harder for millions of Americans to cast a ballot. All these laws disproportionately affect racial minorities, the poor, or the young. Most have been justified by citing the threat of voter fraud, despite no evidence whatsoever that such fraud exists on a significant level or could be stopped by the laws at issue. [...]
Taken as a whole, this shocking offensive has threatened to upend the consensus on all-but-universal suffrage that was forged half a century ago [...]
In fact, conservatives dating back to the Founders have not seen voting as a fundamental right, or democracy as a net positive. Voting was originally reserved for landed white men, who, it was felt, could best exercise "sober voting" — and, not incidentally, protect private property rights. Every advance in enfranchisement has led to rounds of conservative hand-wringing about ignorant voters and the tyranny of the masses. Shelby County is merely the crowning achievement of half a century's efforts to undermine the Voting Rights Act. The Supreme Court itself noted in its ruling on the Florida recount that there is no constitutionally guaranteed right to get to vote for electors to select the President.
It seems obvious, having read the Constitution, but I had honestly never thought about it this way, or realized what a concerted effort conservatives have made throughout the history of this country to undermine universal suffrage. It was a sobering chapter.
The next chapter was on the attacks on campaign finance laws. Everyone knows about Citizens United, but the story starts long before that. In 1976, the Supreme Court ruled in Buckley v. Valeo that "preventing corruption was the only permissible rationale for laws that limit political money, meaning the goal of ensuring rough political equality was forbidden." In 1971, conservative Yale Law professor Ralph Winter wrote, "A limit on what a candidate may spend is a limit on his political speech." This would become the core of the argument in Citizens Untied. The First Amendment had historically been used to protect minorities and unpopular groups. Now, Winters was attempting to use it to "defend the right of the wealthy and powerful to spend as much money as they want to influence elections." But this new argument overlays an older idea: that, just as richer, better-informed citizens deserve more voting power, so too would granting powerful corporations a bigger role in government would benefit society.
Money in politics had not really been an issue until the late 19th century, as campaigns relied largely on volunteer manpower drawn from government and party employees. However, in 1883 Congress passed a ban on political contributions that parties had hitherto required of government workers. Then things got complicated:
The 1896 presidential election was the turning point. Democrat William Jennings Bryan's unapologetic populism terrified the powerful banking industry, and Mark Hanna, the shrewd campaign manager for Republican William McKinley, took advantage by raising an estimated $3 million from New York donors.
From that point onward, conservatives "began to developing a positive argument for why corporations actually should play a central role in politics and government: essentially, because business leaders, like those elite elected officials envisioned by Hamilton and Madison, were better than ordinary Americans." This idea, of course, is deeply offensive to me. But the book substantiates this claimed approach with a panoply of quotes and examples. Of course, the people weren't necessarily buying this argument either, and campaign finance laws gained ground throughout the turn of the century, later spurred in the late 20th century by the Watergate scandal. However, by the time Winter made his free speech argument, conservatives were turning it around. Winter's argument was central to winning the Buckley case. Under the logic of that decision, the Supreme Court began to further chip away at campaign finance laws, dismantling the powerful apparatus that the post-Watergate laws had put together.
In response, ordinary Americans mobilized, and in 2002 Congress passed the McCain-Feingold law barring soft money and taking several other steps to lessen the influence of big money on campaigns. And then Citizens United happened. What I was surprised to learn was that the case was initially very narrowly argued, focused only on getting Citizens United's anti-Hillary movie to be able to be aired on-demand. Justice Roberts instead decided that the case should be expanded, and ordered that Citizens United be reargued with a much broader set of questions presented. The arguments again relied on First Amendment rights. Most of McCain-Feingold was struck down, and corporations could now spend unlimited amounts of money on politics. But it didn't stop there:
And it wasn't just corporations. Based on the broad antiregulation philosophy that Kennedy laid out, a federal court ruled two months later in SpeechNow.org v. FEC that individual wealthy Americans could make unlimited contributions to super PACs in support of candidates — a ruling whose immediate impact was perhaps even more earth-shattering than that of Citizens United. The conservative justices weren't finished, either. [...] Then, in McCutheon v. FEC in 2014, the Court scrapped limits on the total amount one person can give to multiple candidates or committees, again finding that those limits can't be said to deter corruption.
Perhaps more important, the Roberts Court narrowed the definition of the kind of corruption that lawmakers can legitimately try to stop.
The only kind of corruption lawmakers could limit was the direct exchange of official acts for money. Other, less direct ways monied interests could affect politics were deemed off-limits to regulation. The book then goes on to detail what kinds of influence the rich have on politics now.
The next chapter is about something called preemption: state legislators ruling that local governments couldn't pass various types of laws. These laws are usually health regulations, anti-discrimination laws, minimum wage laws, and environmental regulations. However, these present a threat to corporate profits, and ALEC (American Legislative Exchange Council), the powerful and secretive conservative lobby group, has led a push to ban localities from passing these laws. This trend began with Big Tobacco:
Back in the mid-1980s, Big Tobacco grew worried about the spread of local antismoking ordinances, which were being pushed by a powerful citizens' movement. The industry feared that the [...] "patchwork quilt" of local laws [...] would hugely complicate its lobbying efforts, making it fight hundreds of small-scale skirmishes and potentially building momentum for broader regulations.
Soon the tobacco industry hit on a solution. In 1986 it successfully lobbied the Florida legislature to pass a law that took away the authority of local governments to institute antismoking ordinances. [...] From there, the strategy went nationwide. WIthin a few years, the industry would push legislation to ban local smoke-free ordinances in virtually every state in the country. Twenty states ultimately passed such laws. "While we're not married to any particular form of pre-emption language, we're dead serious about achieving pre-emption in all 50 states," a Philip Morris executive wrote in an internal memo in 1994.
While these antismoking bans were mostly eventually repealed, the strategy itself took hold. The NRA used it in the 1990s to get 46 states to enact gun control preemption laws after several big cities began passing stricter gun laws. Other industries soon joined them. By the time of the Obama era, these industries weren't doing it alone: they had the help of ALEC.
After the Republican and Tea Party wave of 2010, progressives had turned to local government to enact their agenda, seeking measures "that would, among other things, improve conditions for workers, curb pollution, and bar discrimination." In response to the wave of progressive local legislation, ALEC realized the threat to its members bottom lines, and, like Big Tobacco in the 1980s, realized that the fight would now be won or lost at the local level. Preemption was the way to get around this.
Of course, by "get around this", I mean "circumvent one of the few places where democracy is still functional and progressive." Of course, progressives will oppose preemption when local government is trying to protect workers and the environment. But progressives didn't wring their hands about preemption when conservative localities were forced to go along with state laws and court rulings legalizing marriage equality. Here is how The Great Suppression explains it:
The reality is, few of us believe local governments should get to decide everything for themselves. Most progressives think certain rights — the right to be protected from discrimination based on race, gender, or sexual orientation, for instance — supersede the democratic process. But that's exactly what many conservative supporters of preemption argue, too — they just have different rights in mind. Echoing John Adams and his allies, they see private property rights, and more broadly, the right to free enterprise, as similarly nonnegotiable.
So again, conservatives have a very different vision of democracy. Voting was originally structured to protect property interests. Corporations are now given the same rights as people, further protecting the accumulation of wealth. And local democracy is being undermined by those who want to protect free enterprise at the cost of other rights. The chapter concludes:
Local government is where the voices of ordinary people still stand a chance of being heard, because citizens are much closer to the decision makers, while special interests, no matter how powerful, can't monitor thousands of city or county councils across the country. It's the last remaining place where a key promise of our political system still holds reasonably true: that a motivated, organized group of everyday Americans has a decent shot at exerting influence.
That's why by explicitly taking power away from local government, advocates for preemption are undermining not just local democracy, but democracy writ large.
The next chapter is about conservatives exploiting structural weaknesses in our political system to give the GOP an advantage. Part of this chapter goes over territory covered in Ratfucked: the GOP used dark money and the way redistricting works to give themselves majorities in both state legislatures and the US House. This book, too, pulls out the breathtaking example of Pennsylvania, where 48.8 percent of the vote went to Republicans, but this translated into 13 of the state's 18 seats, or over 72%. It's appalling.
But if the House is now structured to favour the GOP at least into the next decade, the slant in the Senate is even more permanent. The Senate gives two votes to each state, and this vastly privileges less populous states — where conservatives are more likely to live — over more populous states. Here are the numbers:
Even at the Founding, this setup created a stark imbalance in representation. Virginia, then the largest state, had roughly twelve times as many people as Delaware, the smallest. But since then the difference has exploded. Today California, with a population of nearly 39 million people, is roughly sixty-six times as large as Wyoming, population 584,00 — meaning a Californian has only one-sixty-sixth the amount of representation in the Senate as a Wyomingite. Or think of it this way: A majority of Americans now live in just nine states. That majority has eighteen votes in the Senate, while the minority has eighty-two.
The effects of this imbalance are far from random. It means that rural interests have more representation than urban interests, and since people of colour tend to live in larger population centers, this also means the Senate slants white by default. This is also where the Big Sort comes up again: as we've sorted ourselves into like-minded communities, urban areas are becoming increasingly Democratic and rural areas increasingly Republican. So Democrats tend to come from more populous states — the ones underrepresented in the Senate — while Republicans come from less populous states. As the book says, "[t]he imbalance gives the GOP a major leg up in the fight for control of the Senate: even though Republicans senators received twenty million fewer votes than did Democrats and the independents who caucus with them, Republicans hold a 54-46 majority."
Of course, there's one more antidemocratic feature to the Senate: the filibuster. What I didn't know, and what The Great Suppression taught me, was that the filibuster was created entirely by accident. In 1805 Aaron Burr, in his capacity as vice president, decided the Senate had too many duplicative rules and urged senators to scrap some. But in getting rid of some of these, senators failed to provide for a way to restrict debate. The first filibuster didn't even take place until 1837, and there was no way to stop it: it simply wasn't in the rules. It wasn't until 1917 that a cloture rule was added, which allowed debate to be cut off if two-thirds of senators supported a motion to end debate. Today's rule was not in place until 1975, when the two-thirds requirement was reduced to three-fifths, or 60 votes.
Still, what was born as a tactic of extremes and desperation has been turned into a tool of regular obstructionism by the GOP. We can measure this by the number of cloture motions (that is, motions to cut off debate) at any given point, which is a good indicator that a filibuster is threatened or happening. To do this, we look at the times when both the White House and the Senate were controlled by the same party, which are the times a minority party would deploy the filibuster. Between the start of 1963 to the end of 1968 (Presidents John F. Kennedy and Lyndon B. Johnson, with Democratic control of the Senate), there were only 17 cloture motions. It reached 130 during George W. Bush's four years enjoying Republican control of the Senate. But under Obama, this practice absolutely exploded. During the 6 years that Democrats controlled the Senate under Obama, there were 505 cloture votes — incredible. This obstructionism blocked a lot of progressive legislation, like the public option under Obamacare. And then the GOP has the gall to complain that Obama hasn't done enough to help the country recover!
This is how The Great Suppression sums it up near the start of the chapter:
What it all amounts to is that Washington is broken. But the reason is not a lack of bipartisanship or a failure to compromise. Rather, thanks to a combination of aggressive Republican tactics and design flaws in the system that increasingly work to the party's advantage, Congress isn't representative of the views of the American people, and the GOP is making it even less so. The result is that both election results and legislative outcomes skew much more conservative than most Americans want. This "democracy deficit" has meant that for much of Obama's presidency, pressing legislation meant to solve genuine problems and supported by a clear majority of both the American people and of their representatives has died in the cradle. And it looks set to allow the GOP to continue to exert enormous influence even during a period when it's unlikely to command a national majority.
And then, at the end:
Of course, what's an opposition party to do, if not oppose the president? If Republican leaders genuinely believed the policies advanced by Obama and the Democrats would hurt the country, they were right to do everything they could to stop them. Despite what some Beltway pundits seem to believe, bipartisanship is not an end in itself.
But the GOP's opposition to Obama has been characterized by an unprecedented level of coordination, discipline, and policy cynicism. As we've seen, it has at every stage relied on reducing the level of democracy on offer. And in doing so, it has worsened a genuine structural crisis that threatens to all but paralyze our system of government.
So much for the legislature. But there's another way that conservatives are finding to advance their agenda. The next chapter is on conservative judicial activism, referred to in conservative circles as "judicial engagement". We've all heard conservatives railing about judges legislating from the bench and ignoring the will of the people. But as conservatives are finding it increasingly difficult to make progress by winning elections, they're seeking to bypass the democratic process altogether by "urging the same unelected judges whose influence they once decried to rein in legislative majorities."
But despite the recent history of conservatives bemoaning judicial activism, "the idea that judges should strike down morelaws, not fewer, in fact has deep historical roots on the right. [...] Proponents of this approach often proudly perceived themselves to be acting explicitly in opposition to democratic values, and their rhetoric was in sync with the broader backlash to democracy that took shape during the late nineteenth century." In fact, the book provides a quote from Christopher Tiedeman, who was one of the foremost advocates of this early judicial activism. He wrote in 1886: "the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man — the absolutism of a democratic majority."
So what does judicial engagement protect from the tyranny of the majority? If you guessed property rights, you're correct! Roth writes: 'This era saw the development of a conservative jurisprudence based on the view that the Constitution bars the government from taking a wide range of steps aimed at regulating businesses or transferring wealth." Judges went on to strike down hosts of laws that would boost pay, improve conditions for workers, and protect easily exploited women and children. This approach reached a high point — or a low one — during the era of the New Deal, during which the Supreme Court nixed administrations and acts aimed at dragging America out of the Great Depression. Two of these major rulings "rested on a strikingly narrow interpretation of what counts as economic activity under the Commerce Clause. Even coal mining — a vast industry stretching from Montana to Pennsylvania — did not qualify as interstate commerce, according to another ruling, putting it, too, beyond the reach of regulation by Congress." These rulings came from the court despite Roosevelt and Congress acting with strong public support to fix a once-in-a-century economic crisis. But that didn't matter.
But it was also the end of an era. After that, fifty years of liberal judicial activism from the Supreme Court, especially during the 1950s and 1960s, "turned conservatives into ardent defenders of the sanctity of the popular will." But in recent years, as popular will has turned against conservatives, they have begun looking to judicial activism to once again save insulate them — and property rights — from democracy. Or, to use one of the arguments conservatives themselves make, to rely on the will of an earlier majority — the majority that ratified the Constitution. Of course, that this majority was made up exclusively of white male property owners goes unmentioned
Suzanna Sherry, a law professor at Vanderbilt University, wrote in a 2013 essay: "When the Court fails to act — instead deferring to the elected branches — it abdicates its role as guardian of enduring principles against the temporary passions and prejudices of popular majorities." This neatly encapsulates the approach of the right to judicial activism today. And Chief Justice Roberts has presided over some of the most antidemocratic rulings to come out of the court, in Shelby County (from the voting chapter) and Citizens United. And even when Roberts upheld the individual mandate of Obamacare, Roberts approved a more restrictive view of the Constitution than the Court has endorsed since before the New Deal.
But conservatives are trying to go further yet. In a chapter titled "Pushing the Boundaries," Roth writes about a 2011 paper that has become very popular in conservative circles. It's by Rob Natelson, a legal scholar based in Montana, and it examined something called an Article V Convention. This is a way of amending the Constitution that requires two-thirds of the state legislatures to call for a convention of state lawmakers. Here's the state of this movement now:
As of January 2016, twenty-seven states, most of them controlled entirely by Republicans, have passed resolutions calling for an Article V Convention to consider a constitutional amendment requiring a balanced budget. They're been helped along by ALEC, which has provided draft legislation. If seven more states sign on, Congress will, in theory, be required to call a convention for considering such an amendment. Four red states — Georgia, Florida, Alabama, and Alaska — want to go even further. They've passed resolutions calling for a broader Article V Convention that would let states propose amendments on whatever they liked, from making it easier to nullify federal laws to requiring photo ID to vote.
In other words, the campaign for Article V has moved well beyond the fringe.
But isn't amending the Constitution an extreme measure? Don't conservatives love the Constitution? Roth argues, "To its most avid proponents, Article V is a way to use the Constitution to protect the Constitution, which they consider under threat from both the decades-long growth of the federal government and from the president's unapologetic use of his executive power on issues like immigration, gun control, and climate change. Indeed, the campaign has gained strength at a time when Constitution-worship is everywhere on the right." Of course, Roth also notes something else: "it's hard not to notice that for many on the right, our founding documents are primarily a device for short-circuiting democracy — and an alternative source of political authority that seems more likely to support the end goal of limited government."
This underlines once again the right's opposition to majority rule at a time when the majority is slipping away from them. Roth summarizes:
Not content to stop at more conventional strategies, like voting restrictions and preemption, they're delving deep into constitutional minutiae in search of yet more creative ways to limit the power of the people and their elected representatives. Central to this project is a view of the Constitution as not just a guarantor of liberty but a check on democracy.
Article V is not the only movement conservatives have gotten behind to change the rules: they want to take away the people's ability to elect senators, too. Of course, senators were not directly elected until 1912 with the passage of the Seventeenth Amendment. Before then, they were selected by state legislatures, which, again, were basically propertied white men. Madison, for example, wrote that the "Senate should come from, and represent, the wealth of the nation." The idea is that senators are supposed to represent the states as sovereign entities within a federal union, not their citizens. This movement hasn't gained as much momentum, but is still something the right is pursuing, and many conservatives have never made peace with the Seventeenth Amendment.
In response to this amendment, conservatives pushed "a zealous fetishing of the Constitution", campaigning to more and more Constitutional instruction in schools, holidays to celebrate it, and other measures. While this may seem ideologically neutral and civics-based, the goal was to present the Constitution as "a defense against all the problems of the age." U.S. solicitor general James Beck wrote in a 1924 essay (with a foreword by President Coolidge) wrote that the Founders' "main purpose was to defend their property rights from the excesses of democracy." This is the view of the Constitution the right was pushing.
And then there is the Electoral College. If the Founders didn't trust regular people to elect their senators, they certainly didn't trust them to elect the president. Thus the two-step, antidemocratic Electoral College, in which state legislatures choose presidential electors and then these enlightened souls would choose the president. Of course, the development of a party system meant that the most undemocratic parts of the Founders' vision for the Electoral College were never realized, as electors soon began running on party slates, and almost all states soon let voters rather than state legislators choose electors.
However, the system that remains is still convoluted and deeply problematic. All but two states award their electoral votes on a winner-take-all basis, so whether you win by one vote or one million doesn't matter. Then there is the fact that the allocation of votes isn't even proportional to the size of the states: every state gets at least three, creating a bias, like in the Senate, towards smaller states. This system has handed the presidency to the candidate who got fewer votes four times since the Founding, or one out of fourteen elections.
To combat this, liberals and good-government types have been promoting a push to effectively end the Electoral College without changing a word of the Constitution. This is called the National Popular Vote (NPV), and the idea is to get states to pass legislatures pledging that they'll award their electoral votes to the winner of the popular votes. It's simple, elegant — and constitutional. Not only would this mean the people's choice truly would become president, but it would end the distinction between swing states and safe states. Candidates would have to campaign across the whole country.
But among conservatives, there has been a mirrored push to protect the Electoral College. As Roth states, "It's a campaign that underscores perhaps better than any other issue how, for many conservatives, the Constitution's antidemocratic features are those most worth fighting for. And it highlights just how weak the right's commitment to democracy really is." But some Republicans aren't content to just defend an undemocratic system: they want to skew it even more towards the GOP.
Currently, every state except Maine and Nebraska awards all its Electoral College votes to the winner of the state's popular vote. But Republican state lawmakers in Michigan, Wisconsin, Florida, Pennsylvania, and Virginia — all states that went twice for Obama — have in recent years advanced legislation that aims to change that. One relatively typical version of that plan, proposed in Pennsylvania, would have given just two electoral votes, to the winner of the state's popular vote, then awarded the rest according to the winner of each congressional district — taking advantage of the House gerrymander to boost Republican presidential candidates, too. If that had been done in 2012, it would have given Mitt Romney thirteen of the state's twenty electoral votes, even though Obama won 52 percent of the popular vote.
To some proponents of the idea, it's a way to boost the influence of rural voters and reduce that of urban ones — reflecting that age-old conservative fear of the city-dwelling masses.
After having read Ratfucked, I can't even imagine the terror of this plan. The district maps — bought by dark money, won by lies, drawn in secrecy and sometimes illegally — would decide the presidential election, too. It's obscene.
And finally, the last tactic showcased in this chapter is straight up lawbreaking. Giving up on democracy entirely, Charles Murray advocates for the existence of what he calls a "Madison Fund." This fund would defend Americans — typically business owners — who decide to simply ignore government regulations. You read that right. Roth explains: "The idea is that if thousands of people insisted on drawing out these cases rather than simply paying fines and moving on, the government wouldn't have the resources to enforce the law." Charles Murray is best known among liberals for positing that genetic factors (as well as environmental ones) explained racial differences in IQ scores, as stated in his book The Bell Curve (1994). It's almost hilarious that a flaming racist advocates civil disobedience, of all things, to combat the rise of federal power.
The last chapter of The Great Suppression is more optimistic: it's about liberal efforts to push back against this agenda. But honestly? After reading Ratfucked and The Great Suppression back to back, I'm angry and terrified. Yes, there are liberal efforts to fight back. But the case laid out in these two books is simply too compelling: conservatives are fucking over this country. As Roth sums up: "Far from being a universally accepted American value, democracy in the United States has always been contested and contingent."
So what's the moral of the story? I can think of nothing else but: keep fighting. VOTE.
Coming back to the earlier books in this series: Game Change and Double Down gave me hope for the 2016 election. The 2008 and 2012 elections had their dire moments. It was chaos behind the scenes. But Obama won, and I think Hillary Clinton can win. Big Girls Don't Cry showed me a whole feminist history to Hillary Clinton and helped me accept her as my candidate. And Ratfucked and The Great Suppression showed me the importance of staying engaged and staying informed.
I would recommend all of these books, to various degrees, as they have each been vastly informative in their own ways. But I would perhaps recommend the latter three books — Big Girls Don't Cry, Ratfucked, and The Great Suppression — very strongly. They expanded my political horizons, and galvanized me to become more involved in local politics.
Democracy is under threat right now, assaulted on all sides by conservatives as they rig the system in their favour. Trump threatens to roll back centuries of progress. Whatever else you do in 2016, do this:
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Date: 2016-11-12 03:15 am (UTC)This is as depressing as fuck, of course, but having it all laid out clearly is the first step to fixing it. So, again, thank you for reading and taking the time to share.