Chapter 1
The Unrepresentative âThemâ
THE FRAMERS OF OUR CONSTITUTION GAVE US âA REPUBLIC.â BY THAT term, they meant not a simple democracy, but a ârepresentative democracy.â1 The idea of the people ruling directly was anathema to themâand should be to us. The idea of government unconnected to the will of the people was anathema to themâand should be to us. Instead, the framers mapped a space that stood between these two extremes. They imagined a government guided by representatives selected either directly (the House of Representatives) or indirectly (the Senate and, initially at least, the president). Yet it was representatives who were to govern, not the people or the states.
Their constitution was not, however, a philosopherâs brief. James Madison had crafted the basic design. He was forced to accept compromises that he desperately wanted to avoid. Most fundamental among those compromises was the United States Senate. It killed Madison that at the core of this constitutional republic was a conflict with principle, necessary to the end of winning over the small states. For a while, he insisted that he would reject that âcompromiseâ in the name of âjustice.â âThe proper foundation of [the government],â he warned, would be âdestroyed by substituting an equality in place of a proportional Representation.â2 But when it was clear there would be no constitution without a Senate representing each state equally, Madison swallowed, and a new nation was born. The people would be represented for sure. But as well as the people, so too would the states be represented.
From our perspective, this mixed system is odd. Why complicate what could be represented simplyâthe peopleâby adding a layer of representativesâthe statesâone step removed from the people? But from the framersâ perspective, this was not strange at all. They were used to the idea of a government representing different interests, together. The British government was the obvious example: the House of Commons representing the people, the House of Lords representing an aristocracy, and the king representing the monarchy, and hence the nation. All three were equally present in the British system, even if their power was not, over the arc of British history, equal.
America revolved away from the British design, at least with the ideas of monarchy and aristocracy. But it did not reject the idea of a mixed system of representation. Indeed, in the Constitution of 1787, many believed they had perfected the mix. In it, each thing representedâthe people and the statesâwould be represented equally. The House would be âdependent on the People alone,â as Madison described it, where by âthe Peopleâ he meant ânot the rich more than the poor,â3 and with each representative representing the same number of people. The Senate would be âdependent on the States,â4 at least for its appointment, with each state sending an equal number of senators. Proportionality was thus at the core of this constitution, even if the things to which the institution was to be proportional were to be different. Madison wanted one thing represented equallyâthe people. The framers resolved to represent two things equallyâthe people and the states. No doubt, there is a contradiction here: To represent the states equally means not representing the people within those states equally. But however we understand this conflict, within each domain, the intent was clear: representative institutions representing equally.5
That core principle of equality has been corrupted within our Republic. At least within the domain of âthe People,â the institutions of our democracy do not represent us equally. That fact presses an obvious question into the fore: Why do we accept unrepresentativeness in a representative democracy? Why do we allow a corruption of the core idea of a republic?
In this chapter, I map that corruption along five dimensions. We do not have (1) an equal freedom to vote; we do not have a vote that weighs the same, in either (2) Congress or for the (3) President. The (4) Senate does not represent the states equally. And the way we fund campaigns means we as (5) voters are not represented equally, anywhere. In every dimension, the core principle of a representative democracy has been compromised. Is it any surprise that having broken its parts, the machine of government no longer works?6
1: VOTERS
In 2014, a cofounder of one of Silicon Valleyâs greatest venture capital firms caused a stir. Not because he announced the next Google. Or Facebook. Instead, this titan of venture capital created a commotion because of an idea that he promoted as a principle of democracy, an idea that practically every American would find just bizarre. According to Tom Perkins, cofounder of Kleiner, Perkins, the right to vote in America should be tied to the payment of taxes. In his view, you shouldnât âget to vote unless you pay a dollar of taxes. [And if] you pay a million dollars in taxes, you [should] get a million votes.â7
Perkinsâs idea is not actually completely nuts. Many democracies have had some form of plural voting. In Britain, for example, people affiliated with a university could vote where the university was and where they came from. Same thing with property ownersâa vote where their property is and where they live.8 And Perkinsâs idea is precisely how democracy works with corporations. Shareholders get as many votes as they own shares (with some shares worth more than others, and some, sometimes, worth no votes at all). Perkinsâs suggestion simply extended that principle from the corporate boardroom to the ballot box.
Yet as an ideal for democracy, the notion was ridiculed by leaders from across the political spectrum.9 Whether or not it is good for GM, no one believes it is good for America. In America, everyone gets an equal vote, regardless of the taxes that he or she has paid. This much, at least in principle, is clear.
Indeed, the principle can be stated more generally. All citizens in America, except for felons (in some states) and those not yet eighteen, regardless of income (there canât be a poll tax) and without discriminatory tests (or so the Voting Rights Act requires), have, in effect, the right to vote. The right to vote has become a right of citizenshipânot absolute, because never expressed directly as a right within our Constitution, and not defended enough, but bundled within the package that comes with being called an American.
It was not always like this. Voting was not a right of citizenship originally. In the history of its development, it has been limited or conditioned for reasons external to the personâwhether he has property, or whether he has paid taxesâand reasons internal to the personâwhether heâs a he, or white, or a resident.10 From the beginning, the states defined the scope of the right. Until 1868, they had a pretty free hand. The states could include women or not (New Jersey had done so since 1776, expressly indicating that the right included women in 1790, but then withdrawing it in 1807). They could include black people or not. They could restrict the vote to people holding property or not (as many states did11). The Constitution expressly stated that the qualifications to vote for members of Congress (originally senators were selected by state legislatures) was to be the same as the âElectors of the most numerous Branch of the State Legislature.â That means it was the states that got to set those qualifications.12
At least until the Constitution began to say otherwise: In 1868, the Fourteenth Amendment expressed a soft bias against denying African American males the right to vote (a stateâs representation in Congress was reduced if it did). In 1870, the Fifteenth Amendment banned that discrimination completely (if fatally imperfectly13). In 1920, the Nineteenth Amendment banned discrimination on the basis of sex. In 1964, the Twenty-Fourth Amendment banned the poll tax in federal elections (the Supreme Court extended that ban to state elections two years later14). In 1971, the Twenty-Sixth Amendment banned discrimination against people on the basis of age (at least if you were eighteen or older).
These rules mean identity doesnât determine whether or not you can vote. And in this sense, the right to vote was the first fight of identity politics, as the struggle throughout American history has been to erase franchise exclusions based on identity.
But what about how much your vote counts? Even if everyone must be given a vote, do those votes all have to weigh the same? Can some be, in the words of George Orwell, more equal than others? Could some count for two, or ten, or as Perkins suggested, a million?
For most of American history, the answer to that question was effectively, if indirectly, yes. Even if who you are could affect less and less whether you had the right the vote, how much your vote weighed could depend fundamentally on where you lived, or how the districts were drawn. No one ever adopted Tom Perkinsâs idea, granting votes based on the amount of taxes one paid. But states systematically allocated representatives so that people living in rural areas had a weightier vote than people living in cities.15
The reasons for this difference were many, the most obvious linked to race. African Americans concentrated in cities (slavery didnât end with every slave being given âforty acres and a mule,â so property ownership was not common among African Americans). A state desiring to minimize the electoral power of black people could then weight the votes of rural voters, and thus tilt the legislature against the cities.
Many claimed that racism was not theâor the onlyâreason for unequal votes. In many states, the rural areas were agricultural. It seemed fair to some to give rural voters more power, since the corn and wheat fields would otherwise have weak representation in legislatures. Especially where a state believed that âthe valuesâ of rural America should be preserved, the state had a reason to put a thumb on the scale to benefit rural voters over urban.
Yet whatever the reasonâbenign or notâin the 1960s, the Supreme Court put an end to this inequality. Southern states had allowed differences in the population between districts to balloon; it was not hard to understand that inertia as being driven by animus. Rather than forcing courts to suss out the cases of inequality that were racially motivated from the cases that were not, the Supreme Court adopted a pretty simple ruleâone person, one vote. Districts within states had to be drawn to equalize the population between those districts.16
We forget today just how controversial that result was. âFew Supreme Court decisions,â as the New York Timesâ Anthony Lewis wrote in 1964, âhave stunned this hardened capital city as has yesterdayâs ruling that state legislative districts must be substantially equal in population.â17 An amendment to reverse the Courtâs decision was introduced within six months of the decision and came within seven votes of passing the Senate.18 Many believed that the framers of our Constitution would have rejected the idea of âone person, one vote.â And many were quick to recognize that the principle that the Court had imposed on the states was not imposed equally on the federal government. The United States Senate, unlike state senates, was exempted from the rule, as was the Electoral College. This was, the critics insisted, judicial activism on steroidsââmaking upâ a principle found nowhere in the Constitution and applying it differently to different institutions of government.
But the controversy quickly died and the slogan âone person, one voteâ came to seem so obvious that few could even imagine a different system. We have come to take the idea for granted (at least as applied to citizens in a democracy): we now assume that voting is a right, and that votes are to be equal.
THAT, AT LEAST, is the theory. But democracy is not a theory. Democracy is a set of practices, embedded within institutions, which themselves have enormous effect on whether its ideals are its reality. The ideal may be that voters are to be equal. The reality in America is plainly and radically different. In no sense is it true that we all have an equal freedom to vote in America. Even within particular states, the freedom to vote is radically unequally distributed.
These differences manifest themselves in the details. How many voting machines does a precinct have? More machines, faster lines. How many poll workers? Or phones to verify challenged votes? Is there parking at the polling place? Is it near public transport? How long are the lines? Are there lines?
Those questions get answered differently, everywhere. How theyâre answered will determine the burden in voting. Yet burdens alone are not grounds to complain. Voting will always impose a burden. If that burden is equalânot in some academically theoretical way, but in a practical, actual sense, equalâthen there is little to complai...
