Larry Lessig argues (disagreeing with Rick Hasen) that there’s nothing wrong with the anonymity of the people behind the Americans Elect non-partisan third-party initiative.
I’ve come around to support Americans Elect now, but only because I believe it could be a platform for a real reform candidate. If it doesn’t produce such a candidate, I won’t support supporting the candidate it produces. But in this spin, I have never been too worked up about “their transparency problem.” …When we hear that an anonymous contributor has given $10 million to a superPac supporting a particular candidate, we are and should be concerned about that contribution. But that’s because of two distinct, and independent reasons: We assume that even though we don’t know who the contributor is, the candidate will, AND We assume that the contributor’s contribution will lead the candidate to be responsive in ways that we won’t understand. If those two conditions are not met, however, our concern about anonymity should be different, and, in my view, much less significant. … What could the contributor be getting if the candidate couldn’t know who the contributor was? … If there is no plausible way in which the contributions would affect the work or the positions of the candidate, the cost of anonymity is different. … This second point is why I don’t think #AmericansElect has a “transparency problem.” I can’t begin to imagine how the identity of the contributors could possibly matter to the positions that any candidate would take on any of the issues. AE is building a platform to select candidates. They are promising a process to get access to the ballot in all fifty states. Whether a candidate is selected to be on that ballot depends upon his or her winning in the primary/caucus process. A candidate’s alignment with or against the substantive issues of one of the anonymous contributors isn’t going to affect that candidate’s ability to get nominated by AE at all.
I don’t think that this response does justice to Hasen’s position, which is, in fact, that the donors’ views on the substantive issues will affect candidate alignment. See this op-ed of his from a few months ago.
While it is providing voters a path to choose a presidential ticket through the democratizing force of the Internet, the process can, in fact, be overruled by a small board of directors, who organized the group. This board is to have unfettered discretion in picking a committee that can boot the presidential ticket chosen by voters if it is not sufficiently “centrist” and even dump the committee if it doesn’t like the direction it’s heading. … One of the group’s leaders, Elliot Ackerman, told The Christian Science Monitor that the committee will allow only a “centrist” candidate to be chosen. … Perhaps one reason Americans Elect is hiding the names of its donors is that people might draw conclusions about the group’s interests based on the contributors — especially given the rumor that most of its money comes from the hedge fund industry.
… only those who can provide sufficient voter identification that will satisfy the organization — and, of course, who have Internet access — will be allowed to choose the candidate. These will hardly be a cross section of American voters. … Under the group’s bylaws, [the vetting] committee, along with the three other standing committees, serves at the pleasure of the board — and committee members can be removed without cause by the board. The board members were not elected by delegates; they chose themselves in the organization’s articles of incorporation.
In short – Hasen suggests that it’s not so much Americans Elect as America’s Elect. And if the preterite are so impertinent as to disagree with the stated preferences of their betters, the Elect will take away their ball and go home. Perhaps Hasen is wrong on the substance (although he’s an election law specialist) – but if not, it suggests that the problems go rather deeper than Lessig acknowledges in his post.
There are some broader conceptual issues here too. Lessig has done, and is doing, a lot of good work on the problem of corruption in American politics. But he also seems to agree with Americans Elect that the problems of the current system are bound up in partisanship.
As AE becomes more and more relevant, there will be an increasing clamor from both parties to delegitimize it. Partisans get very angry when you question the two party system.
The problem that Lessig seems partly insensible to is that Americans Elect plausibly reflects a kind of purportedly non-partisan corruption that is more subtle but also more damaging than direct graft, or even the implicit quid-pro-quo relationships that he rightly excoriates. Mark Warren gets at this nicely.
If corruption professionals look upon democracy as an ambiguous force at best, one reason may be found in our received conception of political corruption—the abuse of public office for private gain. … This conception is by no means irrelevant, not least because of the enormous weight of administration within modern democracies …[but it] marginalizes the political dimensions of corruption -in particular, corruption of the processes of contestation through which common purposes, norms, rules are created; the institutional patterns that support and justify corruption; and the political cultures within which actions, institutions, and even speech might be judged corrupt.
…The norm of democratic political equality follows: democracy requires that every individual potentially affected by a collective decision should have an opportunity to affect the decision, proportionally to his or her stake in the outcome. The corollary action norm is that collective actions should reflect the purposes decided under inclusive processes. In short, the basic norm of democracy is empowered inclusion of those affected in collective decisions and actions. … In a democracy, meanings of political corruption gain their normative traction by reference to this basic and abstract norm of democracy. Political corruption in a democracy is a form of unjustifiable exclusion or disempowerment, marked by normative duplicity on the part of the corrupt. Corruption is marked not only by exclusion — there are many modes of exclusion — but also by covertness and secrecy, even as inclusive norms are affirmed in public. Stated otherwise, the norm of inclusion is not denied, but rather corrupted. Corruption within a democracy is thus a specific kind of disempowerment that I shall call duplicitous exclusion. Thus, in addition to the substantive harms often associated with corruption in democracies—inefficiencies, misdirected public funds, uneven enforcements of rights, etc.— we can think of corruption as damaging democratic processes.
Hasen’s critique suggests that Americans Elect is corrupt in just this sense. Even as it publicly affirms norms of inclusion, it provides a tiny and unaccountable group with a veto power that will be exercised to ensure that a ‘centrist’ candidate is chosen. And what exactly does ‘centrism’ mean in this context? Harold Meyerson tells us
While almost all the other donors remain anonymous, Americans Elect includes on its Web site a “leadership” list, and of the 69 people named who are not the organization’s staffers or consultants, fully 20 either head or hold senior executive positions with financial institutions, chiefly hedge funds or private-equity firms. The leaders of Americans Elect know what they’d like in a candidate. Maine politico Eliot Cutler, who sits on the group’s board of nine directors, says he wants a ticket “that looks like the Bowles-Simpson Commission in terms of approach — people who reflect my own biases toward social progressivism and fiscal discipline.”
One of the ways in which American politics is corrupt in Warren’s sense is that voices (typically belonging to, or funded by, people who’ve made their money on Wall Street) calling for more fiscal austerity, the ‘rationalization’ of Social Security etc are massively overrepresented in public debate. Americans Elect is quite transparently and explicitly a vehicle for continuing, and, if possible, extending this overrepresentation. Furthermore, there is a strong prima facie case that its funders’ allergic reaction to transparency has a lot to do with the fact that they are the kind of people who would discredit the initiatives if their true identities were known. The chances of Americans Elect pushing a candidate who is genuinely interested in freeing up American politics through e.g. the kinds of funding reforms that Lessig would like are low-to-zero (if money were to count less, Wall Street billionaires would have considerably less clout than they do). The chances of it pushing a candidate with ‘centrist’ preferences that in fact represent and perpetuate the corrupting force of money in American politics is extremely high. I don’t think that it will come to anything, if for no other reason than that it is an exercise in astroturf politics. But I don’t think that lefties or progressives should be supporting it either.
Update: I should note that there are some parallels between Lessig’s idea of ‘dependence corruption’ and Warren’s ideas expressed above – the interesting question for me is why he sees Americans Elect as part of the solution rather than the problem.
Update 2: Title updated to improve atrocious pun