Night of the Old Republic

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Benjamin Franklin is famously quoted as saying, at the close of the Constitutional Convention in 1787, that Americans had adopted “a Republic, if you can keep it.” It took almost 230 years, but we are doing our best to throw our Republic away.

In November 2016, America might elect as president Hillary Clinton, the wife of an impeached and disbarred former president, who herself is under FBI investigation. Alternatively, we might select Donald Trump, whose notion of presidential comportment is to lead a campaign rally in racist sneering at the federal judge overseeing a fraud lawsuit against him.

One choice moves America ever closer to an aristocracy – two Bushes and two Clintons out of five presidents, and we are not that far removed from the three-brother Kennedy phenomenon. The other choice will replace Barack Obama’s cult of personality with something akin to Vladimir Putin’s Russia, an even more wretched strongman government centered around xenophobic nationalism.

Whichever of these candidates wins, our democracy will be diminished because of it.

Perhaps predictably, blame for this state of affairs can, at least in part, be laid at the feet of democratic reformers. There were not even primaries to nominate presidential candidates until the early 20th century, when such elections were advocated by progressive reformers to curb the power of “party bosses.” Campaign finance reform, intended by progressives to reduce the influence of “big money” donors in elections, followed a half century later.

The combined result has been to give a double advantage to candidates with preexisting name recognition among the primary electorate and personal wealth to fund early campaigning. An election between a billionaire realty television star and a former first lady who, with her husband, has earned more than $150 million in speaking fees since 2001, is the logical culmination of the reformists’ zeal. As we contemplate the hell of a Clinton-Trump election, we can see the road to it paved with many ill-considered good intentions.

Unfortunately, in the future we are likely to see even more meddling, with even more negative implications for our democracy. For example: The Democrats remain incensed by the Supreme Court’s 5-4 decision in Citizens United, in which the Court held that the government can regulate corporate political speech to some extent, but cannot forbid such speech altogether. Clinton has vowed to insist, as a litmus test, that her Supreme Court nominees (and if elected, she will have many) agree to overturn the decision.

Beyond their simplistic “corporations aren’t people” attack on the decision, how many of its critics even understand what Citizens United held? Under Citizens United, a North Carolina business angered that the transgender bathroom bill is hurting its tourist revenue is free to campaign against the politicians who voted for it. Clinton has vowed to put coal companies out of business and coal miners out of work; the company can campaign against her, and the miners themselves can create a corporate entity to advocate for pro-mining candidates. What is the problem with any of that, on either side of the political divide?

The Left’s fervor for banning corporate political speech (other than by media conglomerates, which were exempted from the law at issue in Citizens United) is at war with the classically liberal position, embodied in the First Amendment, that more speech is a good thing. Limiting the ability of corporations – or any other set of speakers – to engage in political speech also will only further intensify the trends supporting wealthy, well-known individuals that have brought us Clinton and Trump.

For the foreseeable future, American politics at the presidential level are going to be defined less by a struggle between Democratic and Republican values – is either party’s base really happy with its candidate on that score? – and more by a struggle between already wealthy and powerful families to establish and maintain lucrative political dynasties.

Sometimes, as in 2008, an outsider may break through and capture the nation’s attention sufficiently to overcome a lack of preexisting wealth or fame. That, however, was an extraordinary year: The Financial Crisis was brewing and the nation was entering its eighth year of war. Yet Obama still barely managed to beat Clinton, an Iraq War-voting, Goldman-cozying, establishment candidate, in the Democratic primary.

I wish I had a realistic solution to this mess. I don’t. Maybe it’s time to end this experiment in self-government and crawl apologetically back to the British. Consider the irony: Their constitutional monarchy has produced a series of prime ministers of relatively humble origin, avoiding the oligarchical trap into which we descendants of the American revolutionaries have fallen. That prime ministers are not directly elected by the people may be the most likely explanation for the difference.

Kevin P. Martin

Kevin P. Martin

Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm. You can read his past columns here.