One possible explanation for the ‘false consciousness’ that the historian Thomas Frank chronicled in his book What’s The Matter With Kansas? is the phenomenon of cognitive dissonance: Millions of ordinary Americans are unable to reconcile what they have been taught about the professed values of American democracy with the reality that the political system is rigged against them in almost every possible way.
The Founders feared that a powerful central government would pose a threat to their liberty, and they agreed with John Locke that the protection of property rights was of singular importance. Hence, they crafted a constitution that dispersed power horizontally through checks and balances across the federal government and vertically to the states. Congress was given the sole power to declare war; the House of Representatives was given the power to initiate money bills; the Senate to ‘give its advice and consent’ to confirm presidential appointments, including federal judges. The executive was given the power to veto legislation, but that veto could be overridden by a two-thirds vote of each house of Congress. Powers not specifically given or implied to the federal government were reserved for their exercise by the states — or to the people — under the Tenth Amendment.
The Founders also created a cumbersome process to amend the constitution. Since its ratification, the constitution has only been amended twenty-seven times. The process of amending was deliberately made to be onerous and time-consuming. An amendment may be proposed by a two-thirds vote of both Houses of Congress or, if two-thirds of the states request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the state legislatures or three-fourths of conventions called in each State for ratification. In modern times, amendments have traditionally specified a time frame in which this must be accomplished, usually a period of several years.
At the federal level, as a consequence, the government has been divided into three very unwieldy branches. Although each branch has been declared by the text of the constitution to be co-equal, the three branches have very different mandates and in actual practice – as evidenced by number of employees, the resources allocated, and the points of access – they are quite unequal. For those reasons, the exercise of political power, because it is so diffused, is often also unaccountable. In addition, because the process of amending the constitution was intentionally made so cumbersome by the founders, meaningful structural change at the federal level is virtually impossible to effect.
Impediments to meaningful reform include the U.S. Senate’s arcane, anti-majoritarian rules that are religiously enforced by the current fifty GOP members of the U.S. Senate, who have been elected by only 43.5% of the total U.S. electorate, and a gerrymandered voting system that disenfranchises millions of minority, urban, disabled and younger voters. The Supreme Court’s gutting of the 1965 Voting Rights Act has also made a mockery of its prior ‘One person, one vote’ decision in Baker v. Carr and its progeny and the court’s professed commitment to impartial justice.
If not addressed, these structural problems will inevitably continue to magnify and further consolidate the power that the über wealthy and mega corporations already exercise over almost every aspect of this country’s politics, economics, and culture.
The U.S. Senate is a prime example. The concept of a Senate — whose members before the adoption of the Seventeenth Amendment in 1913 were appointed by the state legislatures — was created by the framers of the Constitution as a device that would serve as a check to control the popularly-elected House of Representatives. Article 1, § 3 of the U.S. Constitution guarantees each state two senators, irrespective of population. This peculiar and patently undemocratic provision was originally included in the constitution as a compromise to protect the interests of property owners in the original slave-holding colonies and to persuade them to accept the constitution.
James Madison defended the idea of a Senate and disguised his personal investment as a slave owner in that ‘peculiar institution’ by addressing his appeal for a new constitution to the broader interests of commerce as he explained in The Federalist No. 62: “….great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements… What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? No government, any more than an individual, will long be respected without possessing a certain portion of order and stability.”
During the past two hundred and thirty-five years since the Connecticut Compromise was negotiated at the Constitutional Convention, the composition of the Senate has become increasingly less representative. Presently, voters in rural America and in the less urbanized areas of the country exercise disproportionate political influence over this country’s policies and priorities. To cite only one extreme example of the kind of institutional gridlock that now exists in the Congress, each of the fifty states is entitled to two United States senators, irrespective of population. The result of this constitutional arrangement means that today voters in rural America and in less urbanized areas of the country exercise disproportionate political influence over this country’s policies and priorities. Hence, for example, the rural and monochromatically white state of Wyoming, with some 578,000 citizens, has the same number of United Senators as the ethnically and economically diverse state of California, which, as of 2023, had a population of about 39, 500,000 citizens.
The Senate’s arcane and anti-majoritarian rules have further contributed to the dysfunction of that body. The ability of a small minority of senators to impose their will to prevent colleagues from voting on proposed legislation is illustrated by former Massachusetts U.S. Senator Scott Brown. In 2010, in his first vote as a newly elected senator, Brown voted to sustain a filibuster that prevented the Senate from taking a vote on one of President Obama’s nominees to the National Labor Relations Board, Craig Becker. Becker, a former lawyer for the AFL-CIO, was chosen to fill one of the two open seats that, as a matter of policy, only a member of the Democratic Party could hold. Becker’s nomination was opposed by the U.S. Chamber of Commerce and the National ‘Right To Work Committee’, which claimed that he was too pro-labor. Later, in 2014, Tea Party supporters, Senators Rand Paul and Ted Cruz, respectively, were each able to tie the Senate up in knots as they held the floor to demonstrate their opposition to the Affordable Health Care Act. Today, the Senate, despite the adoption of the Seventeenth Amendment, is a deeply dysfunctional entity that most often serves the moneyed interests and the army of lobbyists who work at their behest.
The House of Representatives, because of gerrymandering by state legislatures, has also become increasingly more partisan and less collegial. The use of computer-generated information that defines voter preferences in precise detail has enabled legislators to create Congressional and state voting districts that lock in the partisan advantages enjoyed by the party that controls each state legislature. According to Ben Levinson of Al-Jazeera America, partisan gerrymandering explains why the GOP was able to win a 34-seat majority in the U.S. House of Representatives in 2012 despite losing to Democrats by approximately 1.4 million votes overall during an eelction in which, President Barack Obama carried Pennsylvania with 52 percent of the vote and Democratic Sen. Bob Casey Jr. won more than 53 percent.
In Federalist Number 52, the author — either Hamilton or Madison — expressed the Founders’ skepticism about a popularly-elected legislative body and their intention to hold it in check. Hence, the House of Representatives “…will possess a part only of that supreme legislative authority which is vested completely in the British Parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well-founded maxim that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side and will be doubly watched on the other.”
The growing influence of lobbyists provides additional evidence that the diffusion of power at the federal level, instead of protecting or promoting the interests of ordinary American citizens, has often had the opposite effect from that which Jefferson, Madison and Hamilton imagined: it has permitted the ascendancy of an influence-peddling elite who enjoy virtually unimpeded access to the legislative as well as the executive branches of the government. In 2007, during the last years of the second Bush administration, 14,826 registered lobbyists spent $2.86 billion to shape policies and legislation favorable to the interests of their individual clients. By 2018, four hundred and twenty-five former congressmen and senators were employed as lobbyists and more than eleven hundred former congressional staff members.
The second branch of the government – the Executive – is equally hobbled by the constraints imposed upon it by the Founders. Other than the powers expressly granted to the President under Article 2, § 2, as commander-in-chief, and, under § 3 of that same article, to appoint ambassadors and to implicitly conduct foreign policy “with the advice and consent of the Senate,” the President’s powers over domestic issues are exceedingly limited. Beyond the enumerated powers, and those which some presidents may have arrogated to themselves because of the acquiescence of a timid and craven Congress, “Presidential power is the power to persuade,” as presidential scholar Richard Neustadt argued.
The primary domestic duty of the executive is to enforce the laws of the United States. However, this mandate has often been meaningless in those cases where individuals who were chosen to serve as the executive were opposed to the enforcement of laws which were enacted to promote civil rights, or that are designed to reign in the worst excesses of business through administrative regulations.
In 2007, New York Times Correspondent Eric Lipton reported one appalling examples from the second Bush administration that illustrates the harm to American citizens that is caused when a political agenda based upon the concerns of corporations and other private, wealthy interests – as opposed to the public good – are acted upon without consideration of their public consequences. The Consumer Product and Safety Commission was established by the United States Congress in the 1970s in response to complaints concerning consumer safety first revealed by Ralph Nader.
In March of 2005, the Commission called together the nation’s top safety experts to confront the data which showed that 44,000 children who drove all terrain vehicles were injured the previous year, including 150 fatalities. Based upon her analysis, the agency’s hazard statistician, Robin L. Ingle, recommended that sales of these vehicles be banned to children under 16 years of age. However, her recommendation was overridden by the agency’s director of compliance, a former lawyer for the ATV industry, John Gibson Mullen, who had been a member of the law firm of the Whitewater and Clinton Special Prosecutor, Kenneth Star. Mr. Mullen is quoted as having said,: “My own view is the situation is not necessarily deteriorating. We would need to be very careful about making any changes.”
The federal judiciary, as the third, unelected branch of the federal government, is also a significant part of the problem. In contrast to the unique eras of the Marshall and the Warren Courts, since the onset of the Reagan administration, the federal courts have done little except to mirror and to ratify the increasing distance between ordinary citizens and their government. Since the 1970s, led by an increasingly reactionary Supreme Court, the federal judiciary has expressed pronounced hostility toward government regulation, civil rights, and legislation in the public interest. The net effect of this jurisprudence has been to empower corporations and the disproportionately influential while ratifying the status quo.
The doctrine of “original intent,” as conceived by some of these jurists, is especially destructive since that it has been invented solely to thwart the continued evolution of American politics and jurisprudence – by imposing a requirement that all laws must be analyzed within the framework of an eighteenth century worldview. In the guise of a purported respect for the understanding and interpretation of the U.S. Constitution which the Founding Fathers evinced, this doctrine is, in actuality, a most radical form of judicial activism, It ignores the explicit language of the “necessary and proper clause ” of Article 1,§ 9, c.18 of the U.S. Constitution and it imposes the dead hand of the past, in the form of a fossilized litmus test, upon an instrument which, since the time of John Marshall, had been viewed as a living, evolving document.
Since the beginning of the 1970s, a majority of the Supreme Court judges have not hesitated to impose their personal political preferences for free-market, anti-regulation policies through the judicial feat of federal preemption of state laws and regulations to the contrary. Most of the laws and regulations pre-empted were designed by state legislatures to protect the rights of workers and consumers. Hence, for example, in 1978, in the case of Marquette National Bank of Minneapolis v. First of Omaha Service Corp.,439 U.S. 299 (1975) the U.S. Supreme Court declared state usury laws to be unavailing against credit card companies engaged in interstate commerce. The effect of that decision, therefore, was to permit credit-card companies to exact whatever interest rates they wanted, to the detriment of ordinary Americans.
Equally unsettling, the U.S. Supreme Court’s decision in the matter of Buckley v. Valeo, 424 U.S. 1 (1976), as one of its effects, severely undermined public confidence in the political system. In that decision, the court upheld some modest limits imposed by the U.S. Congress upon individual campaign contributions. More importantly, however, the court held that the campaign contributions by corporations and other large entities were protected by the U.S. Constitution. Congressional attempts to impose restrictions on the financial contributions by corporations and other organizations, because they conflicted with First Amendment guarantees of free speech, would, henceforth, invite strict scrutiny by the court and would require that a compelling state interest had to be shown to pass judicial muster.
Thirty-four years after the Buckley decision, an even more reactionary court declared any restrictions upon campaign financing by corporations violate the free speech provision of the First Amendment. In the matter of Citizens United v. Federal Elections Commission, 30 S.Ct. 876 ( 2010), Justice Kennedy, writing for the majority in 5-4 decision, reversed two previous precedents which had upheld modest campaign finance regulations. Justice Kennedy opined that the Court had previously recognized that First Amendment protection extended to corporations and that “Under the rationale of these precedents cited, political speech does not lose First Amendment protection ‘simply because its source is a corporation;” further “corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”
Finally, at the state and local level, political power in the United States is exercised through fifty state legislatures and executives, and thousands of administrative agencies, commissions and departments. In 2002, there were reported to be 87,525 units of local government.
In so very many respects, from the separation of powers and checks and balances to the gerrymandering of Congressional districts, state-sanctioned efforts to suppress voting by ordinary citizens, and the roles that unlimited sums of money and influence-peddling now play in American politics, the government of United States increasingly resembles a banana republic, ill-equipped to meet the needs of its citizens in the twenty-first century. The existence of so many competing and overlapping spheres of political power creates a kind of modern-day feudalism which ensures that the influence of a few, powerful and connected interests, usually monied, will be carefully considered and acknowledged while the ability of ordinary citizens to influence these poltical entities is virtually nill.