SESSION 2

To these socio-economic and historical factors a technical factor must be added: the electoral system. I expressed its effects in 1946 in the formulation of three sociological laws: (1) a majority vote on one ballot is conducive to a two-party system; (2) proportional representation is conducive to a multiparty system; (3) a majority vote on two ballots is conducive to a multiparty system, inclined toward forming coalitions….

The brutal finality of a majority vote on a single ballot forces parties with similar tendencies to regroup their forces at the risk of being overwhelmingly defeated. Let us assume an election district in which 100,000 voters with moderate views are opposed by 80,000 communist voters. If the moderates are divided into two parties, the communist candidate may well win the election; should one of his opponents receive more than 20,000 votes, the other will be left with less than 80,000, thereby insuring the election of the communist. In the following election, the two parties with moderate views will naturally tend to unite. Should they fail to do so, the weaker party would gradually be eliminated as a dual consequence of “under-representation” and “polarization.”

Under-representation is a mechanical phenomenon. Elections determined by a majority vote on one ballot literally pulverize third parties (and would do worse to fourth or fifth parties, if there were any; but none exist for this very reason). Even when a single ballot system operates with only two parties, the one that wins is favored, and the other suffers. The first one is over-represented–its proportion of seats is greater than its percentage of the votes-while the party that finishes second is usually under-represented–its proportion of seats is smaller than its percentage of the votes…

When there is a third party, it is even more under-represented than the second. The gap is generally quite large, with the proportion of seats far below the proportion of the votes received. In 1964, the British Liberal party received 11.2 per cent of the votes cast, but only 1.4 per cent of the parliamentary seats. This under-representation tends to eliminate the effects of any votes cast for a third party.

But voters are aware of this phenomenon. They also know that a division of votes between two parties holding similar views favors their common adversary. In the case mentioned before, the moderate voters would see clearly that a split between the moderate candidates guarantees a Communist victory: in a subsequent election they would drop the weaker of the two moderate candidates. Thus it is that voters tend to abandon the third party in order to concentrate their votes on the two strongest parties. This tendency toward polarization, a psychological phenomenon, strengthens the mechanical factors conducive to a two-party system…

We can be sure that the relationship between electoral systems and party systems is not something mechanical and automatic. A given electoral regime does not necessarily produce a given party system; it simply exerts an influence in the direction of a particular type of system; it is a force, acting in the midst of other forces, some of which move in an opposite direction.

It is also clear that the relationship between electoral and party systems is not a one-way phenomenon; if a one-ballot vote tends toward a two-party system, a two-party system also favors the adoption of a single-ballot voting system.

The exact role of the electoral system seems, in the last analysis, to be that of an accelerator or that of a brake. An election by a majority vote on a single ballot has a dual effect: first, it poses an obstacle to the appearance of a new party, although this obstacle is not insurmountable (the role of a brake); secondly, it tends to eliminate the weakest party (or parties) if there are more than two (the role of an accelerator). The braking effect was noticeable in Great Britain at the end of the nineteenth century, in the face of a socialist drive, and again after World War 1, in the face of communist and fascist movements. The accelerating effect was even more apparent in the case of the Liberal party, which was practically eliminated in fifteen years (1920-35), although it retains a certain number of supporters who are compelled by the electoral system to choose between Conservatives and Labourites. Deciding by a majority vote on one ballot accelerated in Great Britain the substitution of a two-party system for any other kind.

Political speech is “indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Bellotti, 435 U. S., at 777 (footnote omitted); see ibid. (the worth of speech “does not depend upon the identity of its source, whether corporation, association, union, or individual”); Buckley, 424 U. S., at 48–49 (“[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment ”); Automobile Workers, 352 U. S., at 597 (Douglas, J., dissenting); CIO, 335 U. S., at 154–155 (Rutledge, J., concurring in result). This protection for speech is inconsistent with Austin’s anti-distortion rationale [Austin, the case that Citizens United would overturn, held that corporate money unduly distorted their role in elections].

Austin sought to defend the anti-distortion rationale as a means to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659 (quoting MCFL, supra, at 257). But Buckley rejected the premise that the Government has an interest “in equalizing the relative ability of individuals and groups to influence the outcome of elections.” 424 U. S., at 48; see Bellotti, supra, at 791, n. 30.

Buckley was specific in stating that “the skyrocketing cost of political campaigns” could not sustain the governmental prohibition. 424 U. S., at 26. The First Amendment’s protections do not depend on the speaker’s “financial ability to engage in public discussion.”

The Court reaffirmed these conclusions when it invalidated the BCRA [The Bipartisan Campaign Reform Act, known commonly as “McCain-Feingold”] provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. See Davis v. Federal Election Comm’n, 554 U. S. ___, ___ (2008) (slip op., at 16) (“Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, §2, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices”). The rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity….

The censorship we now confront is vast in its reach. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” McConnell, supra, at 257–258 (opinion of Scalia, J.). And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result). By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B. Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false.

The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public. This makes Austin’s antidistortion rationale all the more an aberration. “[T]he First Amendment protects the right of corporations to petition legislative and administrative bodies.” Bellotti, 435 U. S., at 792…

When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption… The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: “Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.” McConnell, 540 U. S., at 297 (opinion of Kennedy, J.). Reliance on a “generic favoritism or influence theory . . . is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle.” Id., at 296.

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate…The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “ ‘to take part in democratic governance’ ” because of additional political speech made by a corporation or any other speaker…

When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical pre-election period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.

But the attack on “corporate personhood” reflects both a misconception of Citizens United and the problem with current First Amendment law. The problem is not that corporations are “persons” under the law. Corporations have always been “persons”—that is and always has been, in fact, the definition of a corporation, a “fictive person” able to own property and enter into legal agreements. Also, the problem is not the idea that corporate “persons” have free-speech rights. Of course they do. The idea that corporations have some of the free-speech rights that people have is essential to important Court decisions like New York Times Co. v. Sullivan (1964) and New York Times Co. v. United States (1971), which removed the threat of government censorship from American media. Nor is the problem the idea that “money is speech”; the First Amendment would be toothless if government could prohibit anyone from paying to publish thoughts or being paid to publish them.

The profound problem with our current law is the idea that free speech has neither nuanced variations nor underlying values. The Court in Citizens United claimed that corporations either must have no free-speech rights or must have precisely the same free-speech rights as natural persons do. There is a middle position. Retired Justice John Paul Stevens explained it to TV host Stephen Colbert in January. “For some purposes, corporations are persons,” he said. “As with natural persons as well as corporate persons, some have different rights than others do. The same rights don’t apply to everyone in every possible situation…”

As Roberts recognized, our laws treat many kinds of “persons” differently for various purposes—citizens are treated differently from non-citizens, minors differently from adults, members of professions differently from nonmembers. Each group’s rights—even important rights like free speech—are treated differently for some purposes. Union officials, for instance, are closely restricted in how they use union funds for political purposes. Lawyer advertising can be restricted in certain contexts to prevent coercion of potential clients. Tax-exempt organizations must agree not to endorse candidates in exchange for their special status. Even this Supreme Court in January 2012 affirmed a lower-court decision that noncitizens residing lawfully in the U.S.—who do have most other First Amendment rights—cannot engage in “electioneering” in U.S. elections.

There is no reason the First Amendment cannot make a similar distinction in assessing the free-speech rights of corporations. That a corporation is a “person” does not mean that its participation in politics has to be free of regulation. The right to form corporations puts a powerful tool in private hands. A corporation can amass huge sums of cash; its management, in most views of the law, must use that money for one purpose only—to increase profits for shareholders. Fictive person or not, a corporation need never “die.” Corporations are meant to be more resilient and more dynamic than any individual can be. The law of free speech, to be anything other than a mockery of democracy, needs to take that imbalance of power into consideration…

At least a dozen proposed amendments to the Constitution have been introduced in Congress. Cities and counties around the country have passed resolutions protesting the decision. Unfortunately, too many of the proposed amendments and protest resolutions focus on the red herring of corporate personhood.

What we need is advocacy and discussion aimed at reviving the idea of speech as an essential component of equality and self-government. Most of the amendments proposed so far don’t even mention the idea of “leveling the playing field” or include the most important language—language that would permit the government to institute mandatory public-finance systems with no buyout provision and uniform limitations on independent expenditures by corporations and wealthy individuals.

Amending the Constitution is a difficult and chancy project. We should undertake it—but only around an amendment that addresses civic equality.

February 23, 2010

Dear Colleague:

During my half-century of service in various leadership posts in the U.S. Senate – including Minority Leader, Majority Leader, Majority Whip and now President Pro Tempore – I have carefully studied this body’s history, rules and precedents. Studying those things leads one to an understanding of the Constitutional Framers’ vision for the Senate as an institution, and the subsequent development of the Senate rules and precedents to protect that institutional role.

I am sympathetic to frustrations about the Senate’s rules, but those frustrations are nothing new. I recognize the need for the Senate to be responsive to changing times, and have worked continually for necessary reforms aimed at modernizing this institution, using the prescribed Senate procedure for amending the rules.

However, I believe that efforts to change or reinterpret the rules in order to facilitate expeditious action by a simple majority, while popular, are grossly misguided. While I welcome needed reform, we must always be mindful of our first responsibility to preserve the institution’s special purpose. The occasional abuse of the rules has been, at times, a painful side effect of what is otherwise the Senate’s greatest purpose – the right to extended, or even unlimited, debate.

If the Senate rules are being abused, it does not necessarily follow that the solution is to change the rules. Senators are obliged to exercise their best judgment when invoking the right to extended debate. They also should be obliged to actually filibuster, that is go to the Floor and talk, instead of finding less strenuous ways to accomplish the same end.

If the rules are abused, and Senators exhaust the patience of their colleagues, such actions can invite draconian measures. But those measures themselves can, in the long run, be as detrimental to the role of the institution and to the rights of the American people as the abuse of the rules.

I hope Senators will take a moment to recall why the devices of extended debate and amendments are so important to our freedoms. The Senate is the only place in government where the rights of a numerical minority are so protected. Majorities change with elections. A minority can be right, and minority views can certainly improve legislation. As U.S. Senator George Hoar explained in his 1897 article, “Has the Senate Degenerated?”, the Constitution’s Framers intentionally designed the Senate to be a deliberative forum in which “the sober second thought of the people might find expression.”

Extended deliberation and debate – when employed judiciously – protect every Senator, and the interests of their constituency, and are essential to the protection of the liberties of a free people.

With kind regards, I am

Sincerely yours

(signed)

Robert C. Byrd

In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion.

That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking. That was the moment the Senate created the filibuster. But nobody knew it at the time. It would be three more decades before the first filibuster was mounted — which meant it was five decades after the ratification of the Constitution. “Far from being a matter of high principle, the filibuster appears to be nothing more than an unforeseen and unintended consequence of the elimination of the previous question motion from the rules of the Senate,” Bondurant [a prominent constitutional lawyer] writes.

And even then, filibusters were a rare annoyance. Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130. But that’s changed. Today, Majority Leader Harry Reid says that “60 votes are required for just about everything.”

At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.”

In Federal 58, James Madison wasn’t much kinder to the concept. “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”

In the end, the Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. And as Bondurant writes, “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

That majority vote played into another principle, as well: the “finely wrought” compromise over proper representation. At the time of the country’s founding, seven of the 13 states, representing 27 percent of the population, could command a majority in the Senate. Today, with the filibuster, 21 of the 50 states, representing 11 percent of the population, can muster the 41 votes to stop a majority in the Senate. “The supermajority vote requirement,” Bondurant argues, thus “upsets the Great Compromise’s carefully crafted balance between the large states and the small states.”

Establishing that the Founders intended Congress to operate by majority vote is different than saying that it’s unconstitutional for Congress to act in another way. After all, the Constitution also says that Congress has the power to “determine the Rules of its Proceedings….”

There’s precedent for the Supreme Court to review congressional rules: In 1892, in United States v. Ballin, the Court held that while “the Constitution empowers each house to determine its rules of proceedings,” it “may not by its rules ignore constitutional restraints or violate fundamental rights.” And while some may argue that the filibuster has, at this point, been around for well over a century, the Supreme Court has previously held that the fact that “an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date.”

Bondurant makes a strong case. Will the Supreme Court buy it? I have no idea. But perhaps it’s a moot point. There’s evidence that some of the Senate’s most powerful members are preparing to take reform into their own hands. On Thursday, Reid, who has traditionally been a defender of the filibuster, took to the Senate floor to apologize to all the reformers he had stymied over the years.

“The rest of us were wrong,” he said. “If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused and abused.”