The fallacy of absolute electoral equality

By Steve Farrell
web posted February 14, 2000

Two weeks ago, the Supreme Court, upheld a Missouri state law which imposed strict dollar limits on campaign contributions, reaffirming the Courts long standing view, enunciated in Buckley v. Valeo (US 1976), that such restrictions do not assail free speech.

The Missouri law in question, nearly identical to the federal campaign finance law, bars individuals from giving more than $1,075 to a candidate per election.

The reason: protect a relative equality of input from private citizens into the Federal government. Simply: campaign finance democracy.

The Supreme Court held in Buckley v. Valeo that contribution caps "are appropriate legislative weapons against the reality of improper influence stemming from the dependence of candidates on large campaign contributions."

Accordingly, "the ceilings imposed . . . serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion."

So they say.

The problem is, such restrictions presuppose that the Founders thoughts on equality were that every man should exercise an equal influence in political affairs.

This supposition is false.

Equality, in the electoral process, as previously understood by our Founding Fathers, was that every citizen might possess one vote, and that no citizen might be excluded from the electoral process by reasons of faith or national origin.

Later, as the definition of citizen expanded from head of household and or property owner, to every adult, the underlying precept remained the same - the equal right of every citizen to participate in the political process.

This equal right to participate did not imply, however, that each individual would apply himself equally to the political process, nor that such a utopian idea would be desirable. The Founders knew it was against human nature, common sense, and free speech.

To force an equality of political involvement, by equalizing the contribution of the energetic and intelligent with that of the inert and the idiotic, would be to foolishly inhibit, discourage, and discard the efforts of your best citizens, and exalt the efforts of your worst citizens. A goal of socialism.

The Founders opposed this. The interesting and intricate system of representation they placed in the U.S. Constitution, which details - who could be elected, how they were to be elected, and for what purpose they were to be elected - reveals one overarching theme - the qualifications, modes, and expectations, were different not equal.

Inequality of Age

Members of the House had to be at least 25 years of age, members of the Senate at least 30 years of age, and the President had to be at least 35 years of age.

Likewise members of the House had to be US citizens for at least 7 years; members of the Senate for at least 9 years; and the President for at least 14 years.

The Constitutional Convention’s sentiment, attached to these inequalities, was this: As the scope of a job enlarges, so does the potential for evil. The greater the responsibility, the more stringent the requirements, and thus the smaller the group that could participate directly in that area of government. This was common sense! Maturity, and personal acquaintance with the American system and culture, were basic differences, which separated legitimate candidates from dangerous ones.

Were all citizens equal in their opportunity to participate directly in the government as candidates? The answer is NO!

Inequality of Expectations

In both "Madison's Notes On the Constitutional Convention," and in "The Federalist Papers," the expectations concerning the character, learning, and abilities of the candidates to these same three offices, were described in sharply different terms.

The future members of the House were predicted to be turbulent, ambitious, less learned than Senators, immature, ruled by passion and faction. (Note please: The founders didn't want this type of character, but they understood from history that the more democratic nature of the House would, as a general rule, encourage this type of behavior.)

Members of the Senate, on the other hand, were expected to be senior statesmen, scholars, and believe it or not, rich men.

Future presidents were predicted to be great communicators, of superior skill and intellect, capable of viewing the nation and the world in sweeps, of established moral integrity, and in short, a cut above the rest.

Were these various candidates for office expected to be equal in character and ability? NO!

Inequality of Roles and Powers

The founders assigned roles to each area of government that recognized differences in each political office, and differences in society - which differences were to be protected, not homogenized, by a complex system of representative government.

Generally,

* Individual members of the House represented citizens of particular geographic districts.

* Members of the Senate, (elected originally by State Legislatures) represented the States, commerce, and wealth.

* The President represented the people at large, or the interests of the nation.

* The Supreme Court represented the law or the Constitution.

Each had different constituents. Each had different terms in office. Each had different powers. One legislated law, one enforced law, and one judged the law. They were by design, distinct and separate (though they shared some powers).

In one sense they were equal. Equal to try to influence the law. In another sense they were unequal, for each branch could only operate within the confines of their delegated powers.

Were their roles and their legal opportunities to influence the law equal? NO!

Inequality in the House of Representatives

Contribution caps operate on the premise that each individual, in terms of representation, is a mathematical equal. But since we are not a democracy, but a Republic, it is well to remember that Republics are far more complex and ingenious than that. The idea was to promote a vigorous competition of ideas from competing power centers, not give every person, or every group, an exactly equal influence.

While the Constitution provided a mathematical rule as to how many representatives would be awarded to each state, drawing district lines was not done (originally) by an exact mathematical formula.

District lines historically were drawn, said Supreme Court Justice Frankfurter (Baker v. Carr, 1962), based upon a variety of considerations such as:

"geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others.”

He added, “[equality] respective of population" was only one of many considerations, "others, forsooth, more appealing.”

Near the top of the list was urban-rural conflict. It was not untypical, both on a national, and especially on a state level, that a sparsely populated rural district would receive the same single vote in congressional proceedings as a densely populated city district. In such an arrangement, the rural lifestyle (which Jefferson described as the moral backbone of our country) was equally protected in Congress, even though their representation was a numerical inequality, and a seeming injustice to city dwellers.

The battle over this aspect of Republicanism continues today, as political groups battle to redraw district lines along racial, political, and economic lines. But the main thing they are all looking for is group representation, which is part of what a republic is supposed to give us.

Every person cannot vote. Every interest, class, and culture is not the same. And since government cannot be administered by a mob of 260 million individuals (for a variety of reasons), republican government deals in sweeps which try to give all individuals and classes of individuals access to the debate through the inexact science of representation.

In this sense, purely private lobbying (not government subsidized lobbying like we have today - which distorts the political picture by artificially propping up interests that are more isolated than they appear), from corporations, associations, unions, watchdog groups, ethnic organizations, and churches, all have a legitimate place in helping bring to the attention of lawmakers a healthy medley of interests. In Madison’s view, nothing could be finer. The more competing forces, he argued the harder it is for forces to combine all governmental powers into one head and produce an absolute tyranny.

Inequality in the Senate

The last example of the rejection of absolute mathematical equality by the Founders, which we will consider, is the US Senate.

The chief excuse, often sited, for a $1,000 cap on individual donations is the desire to prevent the (evil) rich from obtaining an undemocratic/unequal advantage in the political process.

But think about it! Let’s suppose we kept that law in place, and also equalized and limited to $1,000, soft contributions (those funds which are used not to say “Vote For Bob,” but to debate issues) .

That done. Let’s ask ourselves if the rich, as a class, are in the majority or minority in society?

They are a minority.

Then, in theory, if the government was successful in preventing the rich from levying the influence they desire (even though they likely have a higher stake in preserving economic and political order than does the average citizen), would this not trivialize the political influence of the prosperous?

The answer is yes.

Did the Founders want this? NO! This is one of the reasons they gave us the Senate.

The Senate, as already alluded to, was prior to 1913, elected by the State Legislatures. The intent was that the Senate would be a check on several groups, (most especially a check against the hegemony of the Federal Government over the states, and the hegemony of large states over small states). They were, also, designed to be a check and a buffer zone in favor of the interests of private property, commerce, and the rich, against the covetousness of the less prosperous classes - whose interests would manifest themselves, in time, in the US House.

Sometimes we forget that the President, the Senate, and the House, each represented three different types of governments: the President, the government of Kings; the Senate, the government of the Rich and Noblemen; the House, the government of the People. Any one of these, by themselves were a prescription for tyranny. Our Republic, under the Constitution, solved this problem, by striking a safe and inspired balance between the three.

Therefore, contrary to the spirit and letter of campaign finance laws which make it a sin for the rich, for industrialists, and for mammoth corporations to protect their interests, the Founders established the US Senate, to do that very thing.

Not only should campaign finance laws be without caps for private citizens and corporations, but the election of the Senate should be once again conducted by state legislatures rather than by the people, so that the interests of the states, the rich, and commerce will again find representation in one branch of Congress. Without it, socialism, which pure democracy produces, is thrust into the system.

We were forewarned on this issue, by our Founding Fathers, 213 years ago. Elbridge Gerry, during the Constitutional Convention, arguing against the direct election of US Senators by the people, warned:

“The people have two great interests, the landed interest, and the commercial, including the stockholders. To draw both branches from the people will leave no security to the latter interest; the people being chiefly composed of the landed interest, and erroneously supposing that the other interests are adverse to it [that is that they tend to embrace the Marxist notion that the rich despise and exploit them].”

Madison too, understood that pure democratic tendencies produced socialism and that special access for the rich to one branch of Congress was a check against this.

He stated: “No agrarian (socialist) attempts have yet been made in this country; but symptoms of a leveling spirit . . . have sufficiently appeared in a certain quarter to give notice of the future danger.”

The cure, Republican government, with one of its chief features, the statesmen of the US Senate, more attached to “wisdom, virtue, . . . and justice,” then the democratic House.

Doctors of Absolute Equality

Those doctors of absolute equality today, who would try to equalize the political output of every American, display loyalty, whether they realize it or not, to socialism, not to American liberty.

It would be better that they rediscover that America’s Founders gave us a Constitution that produced an equal right to participate, not a demand or expectation that we participate equally.

The rich, the prosperous, or the corporation, like any other person or group, have an equal right to participate as their interests, inclinations, abilities, and finances permit them.

To limit the contribution of a class of people who have learned the value of hard work, who have learned how to lead, and who have learned how to save; and to exalt the output of those who have not, is to turn our back on the American dream of liberty and to embrace the European vision of socialism.

Steve Farrell is widely published research writer who specializes in Constitutional Law. His column is carried by CalNews, Liberty Caucus, Ether Zone, Enter Stage Right, Spin Tech Magazine, OpinioNet, ConEye and NewsMax.com. Projects include his upcoming book Democrats In Drag: Another Look at the Republican Party. Please email your comments and/or media requests to Steve at Cyours76@hotmail.com

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