Poor People’s Economic Rights: The Lack of Legal and Historical Precedent in American Law by Lisa Baird – posted 10/19/2013
This piece was written in Spring 1985 by my sister, Lisa Baird. Lisa was in her last year at Rutgers (Camden) Law School and she wrote the paper for her American Legal History class. I have carried the essay around with me for years and I have long thought it deserved to see the light of day. October 21 is the 4th anniversary of Lisa’s death. I thought a nice way to remember and honor Lisa would be to share this essay. The points she made 28 years ago still resonate and seem as valid now as they did then, maybe more so. Jon
We are living in a time when the federal government is dramatically decreasing its allocation of funds to social welfare programs which serve poor, as well as in some cases, middle-income Americans. Food Stamps, General Assistance, Aid to Families with Dependent Children (AFDC), Medicaid, Social Security, Supplemental Security Income, Legal Aid and higher education-low interest loans and grants are all examples of government subsidies which have already been cut back or have been targeted for significant reduction in the name of budget balancing.
Public benefit programs such as the ones mentioned above constitute the income – and livelihood – of millions of Americans. Still, the right of citizens to receive these benefits uninterrupted, and to rely on them as a sure means of subsistence is tenuous and constitutionally vulnerable. While public benefit recipients are assured the right to notice and an opportunity to be heard prior to their termination from a benefits program, they are not assured the right to continue receiving benefits despite the fact that those benefits may be the only income available to them at that time. Economic assistance from the government is not a fundamental right guaranteed by the constitution nor do poor people constitute a suspect class. Thus, the legal protection provided to welfare recipients is minimal : the legislature needs simply to show a rational reason for amending or even dissolving a program and the courts will approve the state’s action.
Price v Cohen 715 F. 2d 87 (3rd Cir 1983), a recent Federal case, demonstrates the legal insecurity of social welfare programs. The Pennsylvania legislature amended the state welfare code to exclude as recipients all persons between the ages of eighteen and forty-five except for three months of each year when they were deemed “transitionally needy”. Thus, these people theoretically able to work regardless of the availability of jobs or job training could no longer collect general assistance as a source of income. The Third Circuit Court of Appeals reversed the District Court’s finding and determined that 1) the class of people (between 18 and 45) affected was not a “suspect class” protected by a “strict scrutiny” analysis under the Equal Protection Clause and 2) that the “right to subsistence” (which in this case the court equated withthe right to receive welfare benefits) has neither an explicit or implicit source in the Constitution.
The State’s burden was indeed light in this case. It had only to show a rational basis for its distinction between transitionally needy and chronically needy (those entitled to year round benefits). Rationality is the easiest test to meet in determining constitutionality and simply by invoking the problems of “scarce resources”, the need to create incentives to promote employment and discouraging welfare fraud, the state won its case. Obviously, the fact that the rationality test requires nothing more than stating theoretical justifications for an action without an examination of the factual basis for these justifications made the state’s argument an easy one. The court did not question scarcity of resources, pauperization as employment incentive or the statement in dicta that welfare fraud was most prevalent among the age group affected. Rather, it accepted the reasons and the premises upon which they were made.
The plaintiffs’ burden was conversely very difficult to meet. They could win only by rebutting the rationality of the reasons presented by the state. Rationality is and was shown to be in this case difficult to disprove since it needn’t have any relationship to the truth of the matter asserted. Remarkably enough, thousands of people lost the only money they had to live on because the state was able to assert a plausible rationale for its action which made logical sense, actual sense aside.
This essay is an effort to identify and discuss some of the reasons why economic rights for people with limited or no resources are not guaranteed or secure under the American system of justice. While it is clear that most if not all areas of civil law and criminal law as well serve to protect the wealth of well endowed people, this is not true for people without means. Practiced prudently, contract law, tort law, tax law, corporate law can preserve funds, recover funds or expand funds when resources exist to finance adequate legal representation. Criminal liability attaches when for example embezzlement occurs within a corporation, thus under legally sufficient circumstances, it provides further protection and remedy for those whose wealth is endangered. However, public entitlements have not been deemed personal property nor as mentioned above have poor people been identified as a suspect class. So, the rights which do exist in relation to poor people and benefits (and sometimes services) are procedural and not substantive. That is, the benefits themselves are not guaranteed but a hearing must be granted if the state intends to take them away.
Why are the economic rights of poor people procedural and not substantive? Substantive economic due process is a constitutional doctrine dating back to the era of Reconstruction. In the years following the Civil War, federal judges were faced withe the decision whether to broadly interpret the due process clause to include the right of merchants as in the Slaughterhouse Cases to challenge state-created economic monopolies. Justice Samuel Miller reasoned that neither the 14th Amendment’s privileges and immunities clause, equal protection clause or any due process clause was intended to supply citizens with a constitutional basis to secure economic rights. Miller’s opinion in the Slaughterhouse Cases cited the purpose of the privileges and immunities clause as protecting citizens of the United States in their exercise of fundamental rights as opposed to dictating to the various States what the rights of its own citizens should be. Further, he interpreted the equal protection clause as solely aimed at equalizing the status of Blacks to that of other Americans. Finally, he attached only procedural meaning to the due process clause, following the lead of Judge Taney in Dred Scott v Sanford. Louisiana was therefore able to impose monopolies and limit competition accordingly.
Twenty-seven years later the Supreme Court took a broader look at the 14th Amendment in Lochner v New York when the issue in question was the constitutionality of a New York statute limiting the right of a private employer to contract with a laborer for an excess of sixty hours work in one week. Despite dissents from a number of justices, including Holmes, the Court ruled that the New York statute did impinge upon the constitutional rights of the employer and employee to freely enter into a contractual relationship with one another.
Justice Holmes argued that a state’s infringement on a constitutional liberty must be judged on an ad hoc basis and weighed against the seriousness and validity of the legislature’s purpose in passing the statute in question. He cautioned against an approach which would blanketly pave the way for federal interference with state sovereignty or, conversely, elevate the power of a state legislature beyond the reach of rational, well-founded objection.
The doctrine of substantive economic due process conferred rather broad rights of economic freedom and autonomy on individual citizens. It should be noted however, that as it was articulated in (although not recognized) in the Slaughterhouse Cases and later recognized in the Lochner case, it was a doctrine which supported the laissez-faire ethic of non-regulation aimed at profit maximization. Like its cousin, procedural due process, substantive due process did not become a legal weapon of the poor and property-less, although there is no indication in any of the key substantive due process cases that it could not have doctrinally supported poor people’s entitlements.
In the modern legal era, the doctrine of substantive due process has been largely eroded and the United States Supreme Court has specifically contradicted the notion “that the due process clause authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely”. See Ferguson v Skrupa 372 U.S. 726 (1963) Presently citizens who wish to contest the unconstitutional effect of a state law rely on other doctrines to do so. If the challenge is procedural in nature, the objection can be framed under the due process clause.
If the situation involves discrimination against a class of people, the outcome most surely depends on the nature of the discrimination alleged and what level of scrutiny the court attaches to an injury to the class in question. As we saw in Price v Cohen , a category of persons who shared in common both a designated range of age and an impoverished economic status triggered a minimal level of constitutional scrutiny, not enough to strike down the law.
Poor people and their advocates are thus left with huge gaps in constitutional doctrine that can be used to safeguard and extend their economic rights.
This essay began by identifying the problem of the lack of economic rights for poor people as well as the lack of legal doctrine in American law to support these rights. There are a number of ways to consider this problem in an effort to begin to unravel its origin and meaning. In the following section of this paper, I will propose various tensions present in American legal history which may help to shed light on the issue of poor people’s economic rights.
Natural Rights vs Positive Rights
Do poor people have a “natural right” to subsistence income? Has such a natural right been recognized in American jurisprudence? The United States Constitution codified natural rights and protected those rights, particularly after the passage of the 14th Amendment. Positive rights embodied in statutes passed by legislatures at times conflict with natural rights when positive law is seen as infringing upon natural law. Seen from the perspective of John Marshall concerned as he was with the tension between the two sources of law, the existence of natural rights provided a context in which government sometimes had to limit and regulate in order for other rights to be protected. The social contract whereby citizens consented to be governed enabled government when necessary to limit individual liberty.
The right to economic well-being was not however deemed a natural right. While “vested property rights” and the right to contract were identified by Marshall as falling within the realm of natural rights, the right to some semblance of a secure income did not. The welfare system finds its source in positive law created by legislatures and because this is the state, legislatures are likewise empowered to amend or rescind the system. This was evidenced by the Pennsylvania legislature’s amendment of the welfare law which gave rise to Price v Cohen .
Judicial Action vs Legislative Action
Judicial review of state legislative actions is an idea which was further articulated and clarified when John Marshall decided McCulloch v Maryland . In the case of Price v Cohen however, the judiciary found no constitutional defect in the statute. Here, the legislature took rights away from the poor and the court determined after review that it had been within its rights to do so. It is interesting to note that the District Court which decided the case favorably for the plaintiffs did so in part on the basis of evidence presented in the trial alleging that age had no relation to employability. The Third Circuit ruled that although the District Court was the fact finder in this case, it was not “authorized” to “resolve conflicts in the evidence against the legislature’s conclusions”.
This approach seems to give the upper hand to legislatures where a court is reviewing controversial legislative determinations about which there’s been some dispute. It suggests that the only facts which the court may find are those which have not been part of the rationale for the legislation in the first place. It is “speculation”, says the Third Circuit to disagree with a legislative conclusion. Thus, the Circuit Court gave complete deference to the legislative process, disregarding the possibility that perhaps factual errors were made and relied upon during the debate and enactment of the statute in the legislature. The power and sovereignty of the legislature in Price was indeed a stumbling block to the plaintiffs’ recovering their benefits.
Another way of looking at the problem of the lack of economic rights is the conflict between state sovereignty and federal power i.e. federalism. This approach isn’t entirely satisfying in that we lack a nice, neat polarized situation where state power comes down on the side of limiting or abolishing welfare programs and the federal courts rise to those program’s defense. As stated earlier, much in the way of welfare monies is the result of state legislative action but the power of the federal courts lies in their ability to police the constitutionality of legislative action.
As we have seen in Price , the court found that depriving persons between 18 and 45 of welfare benefits was constitutional. The check of the judicial branch of government over the legislative branch amounted to review and consent by the court. Hypothesizing a scenario where the legislature rescinds a welfare statute entirely so that no one is entitled to benefits any longer, one questions what then would be the action of the court. Would there be a successful, constitutional challenge? It is clear that the federalist system allows the state to act relatively freely in accord with its own stated aims and resources. The check of constitutional scrutiny is we have learned not necessarily a safeguard against sweeping legislative action which brings grave results to the health and well-being of many citizens. Since constitutional doctrine will not support poor people’s economic rights, poor people have a tremendous stake in the quality and political and social outlook of their state legislatures. Herein, the system of federalism could theoretically be of service.
Law vs Politics
Legislatures are composed of elected representatives who achieve their status through some combination of money, contacts, ability and fate. Party politics and the interest of self preservation play big roles in how legislators vote on bills presented to them. Since we have noted that constitutional law does not guarantee economic rights for the poor, the politics and priorities of legislatures holds special importance. Legislatures can and have passed laws which have been profoundly beneficial to the health and well being of indigent people just as they have done the opposite. But they function in the political realm. They are flighty, swayed by monetary interests, seeking re-election and often unreliable. Can state legislatures be a reliable ally of the poor? Here the key word is reliable and because of their transient and political nature, the answer is doubtful.
Individualism vs Collectivism
We are left with the perplexing question of why the value of collective well being is not fundamentally a part of our system of justice. We have seen that legislatures cannot be either the guardian or defender of the poor. And we have likewise seen that there is no constitutional mandate to provide for those in need. The conflicts mentioned on previous pages play themselves out with no affirmative duty on the part of any branch of government to provide for those in need. In fact, the basest interpretation of welfare laws is that they are a gratuitous gesture which can be done away with when other fiscal demands arise.
Why doesn’t our system of justice value the collective good? The Preamble of the Constitution does state that the People, among other things “…in order to form a more perfect Union, …promote the general welfare”. But “general welfare” has not come to mean guarding against hunger or starvation. The 14th Amendment prohibits states from depriving any person of life, liberty or property without due process of law but we have seen that due process has not thus far evolved into a doctrine that guarantees more than procedural fairness. Here, the interest of collectivism, embodied by the state law limiting work hours per week, gave way to the interest of individualism and the unfettered right to contract.
Perhaps now the deprivation of life without due process is becoming more substantive-oriented as courts more frequently intervene to order medical treatment and prevent death of severely and hopelessly retarded infants. Still, the value of life for groups of people as measured by the value attached to the right to subsistence for poor people has not been given protection by the courts under the due process clause. To the extent that the law addresses the collective good, it does so in the context of enhancing the environment, making the system run smoothly and promoting pluralism in the interest of harmony and production.
The American preference for and preoccupation with the individual, his/her opportunities, mobility, liberty over an interest in social welfare is an historical and legal reality. In a world where individual liberty is the highest ideal and the test of good government has often been its ability to maximize individual freedom, it is not surprising that collective freedom has come to imply only the freedom of a collection of individuals. The answer is in part rooted in capitalist ideology, in part in the pragmatism implicit in that ideology, in part in the way the law has evolved to reflect the values of the system it represents and supports.
Perhaps the closest we have come to the promotion of economic rights for poor people was during the era of the National Welfare Rights movement. The movement took hold in the mid 1960’s becoming institutionalized and in decline by 1980. It explicitly attacked the ideology which equated welfare with individual failings and lack of initiative. Rather, the welfare rights movement and organizations sought to popularize why poor people had a right to welfare: lack of jobs, lack of job training, barriers of racial and sexual discrimination. The movement demanded adequate welfare subsidies at the same time it demanded jobs. It was the cry for social reform from those who needed it to survive. Welfare activists demanded income as a right to which they were entitled. Contrast this point of view with that of political leaders in history who advocated welfare benefits as a means of social control or with courts who have recognized no constitutional right to receive benefits for the purpose of relieving poverty.
The current reversals of that era underscore the problem of a lack of American legal doctrine and political ideology to support and safeguard economic well being for all. Until that doctrine is developed and recognized, poor people and their advocates must continue to use the many legal and political tools available to them. As the courts narrow their interpretations of the U.S. Constitution, we move farther away from the hope that the law will develop in the direction of affirming and feeding rather than depriving and casting out.
Soon our New Hampshire Legislature will be voting on the matter of Medicaid expansion. While I know the Legislature agonized over the decision and could not decide it last session, I must say I do not see it as a hard call. The benefits to the state are too great to pass on this deal.
In a state obsessed with saving general fund dollars, this is like the ultimate business deal for New Hampshire. The state can insure a huge group of the uninsured for three years at no cost in state dollars. After three years, the state would never pay less than 10% of the cost. In my opinion, that is great value obtained at a bargain price.
In so much of the media coverage, I do not think there has been adequate appreciation for the value of insuring the uninsured. It is estimated that 50,000 New Hampshire residents will obtain affordable health care through the Medicaid expansion.
Maybe it is obvious to say but having quality health insurance is a big deal and can afford some peace of mind. When you walk through most medical facilities, it is like the cash register starts ringing. All too often, if the patient lacks insurance, there is little or no access to health care. The only options are the emergency room, charity care if any exists in a particular locale, or going without health care.
Millions of people in our country and tens of thousands of people in New Hampshire are simply going without. They are rolling the dice, hoping for the best, and not going to the doctor when they are sick. They do not have the money to pay out of pocket and they do not want to incur the cost.
Medical debt acts as a major disincentive to seeking health care. Unaffordable medical bills and inadequate income are a toxic brew. I would not deny that underinsured people, not just the uninsured, might avoid health care. If you already have significant unpaid medical bills, the idea of going to the doctor and adding to an existing debt is unpalatable.
The choice not to go to the doctor may work out in some situations. If the problem is less serious, the cost might only be the discomfort of enduring pain or some increased anxiety and depression. However, the choice not to go to the doctor can also result in some catastrophic outcomes.
The cancer diagnosed too late, the stomachache mistaken for food poisoning which was a ruptured appendix, the undiagnosed heart disease – these are examples of what can happen when symptoms are ignored because people are so worried about hospital expense they avoid care. Delay in seeking care can also be the difference between a serious problem and a total nightmare.
Families USA has studied the consequences of going without coverage. In a report entitled “Dying for Coverage” released in June 2012, they estimate that between 2005-2010, 134,120 people between the ages of 25 and 64 died prematurely due to a lack of health insurance. They say there were 339 such deaths in New Hampshire during that time period. Families USA based their estimate on a methodology devised by the Institute of Medicine.
Some of the findings Families USA mentions:
— the uninsured are less likely to have a usual source of care outside of the emergency room > — the uninsured often go without screenings and preventive care
— the uninsured often delay or forego needed medical care
— uninsured Americans are sicker and die earlier than those who have insurance
— the uninsured pay more for medical care than the insured
I think it is unconscionable in a country as wealthy as the United States that we allow so many to remain uninsured. I personally think health care should be a right of every American. It is not some kind of privilege. Access to health care should not depend on a person’s income.
Just to be clear, I am not an uncritical supporter of Obamacare. I personally would have preferred a universal single payer, Medicare-for-all type system. That did not happen though. Obamacare with its Medicaid expansion is a positive step forward since so many more will obtain coverage.
One can only marvel at the reactions of the opponents of Medicaid expansion and Obamacare. To say they have been over the top does not do justice. Leading the charge was former New Hampshire House Speaker Bill O’Brien who claimed Obamacare is as bad as the Fugitive Slave Act of 1850. That law let slaveowners get their runaway slaves back!
Then there is Texas Governor Rick Perry who called Obamacare “a criminal act”. And not to be outdone Congresswoman Michele Bachmann who compared Obamacare to crack cocaine and said it will kill people. Bill O”Reilly just said Obamacare is “a vicious motorcycle gang threatening your daughter”. You really cannot make this stuff up and there is plenty more where it came from. Opponents have spent far more time demonizing than offering any credible alternative plan.
Obamacare was extensively debated; it passed Congress, was signed by the President and it was upheld by our very conservative U.S. Supreme Court. The Court gave states an option on Medicaid expansion. I would also note that the President ran, in part, on his health care policies and he was reelected. The hyperbolic overreaction to a law that is barely out of the starting gate is a form of political hysteria. Calling a new law a train wreck before it has gone into effect is both unfair and premature.
Part of the reason for the hysteria may be fear that, once implemented, the program will be successful. As Texas Senator Ted Cruz put it on Fox News, he worries that people will become hooked on Obamacare. I do believe there is a recognition that it would be much harder to repeal the program once many Americans have benefitted from it. There is a similar history with opposition to Social Security and Medicare when those programs were starting up. Once those programs got off the ground, they became extremely popular with the American people. There is a similar fear from opponents that that will happen again with Obamacare.
Our Medicaid expansion commission has initially voted this last week to support the expansion. The Commission is now drafting a final report with recommendations specific to New Hampshire. The Commission will vote on the final report on Tuesday. The Commission worked hard to develop a plan that reflects New Hampshire tradition and values. Once the report is produced it will have to be translated into legislation and then it must go through the legislative process.
Even if legislators were required to reconsider this voluntary program after three years, that could still be reasonable. At least there would be a body of experience to evaluate whether the Medicaid expansion should continue. I think our Medicaid expansion commission deserves credit for its bi-partisanship. At a time when partisan fever is running wild, it is positive that both Democrats and Republicans in our state could work cooperatively to craft a Medicaid expansion that serves our citizens.
I am reprinting a fine piece written by John Judis that appeared earlier this week in the New Republic. I thought it offered historical perspective on the current government shutdown. Jon
The current government shutdown threatens to stall the already slow economic recovery from the Great Recession. But more is at stake here. Political philosophers from Aristotle to Locke have defined the nation-state as the highest form of political community. Locke, whose views are embedded in America’s Declaration of Independence, saw government as a result of a communal compact—a social contract—among peoples. What is happening in America is that this social contract is being voided, largely through the initiative of rightwing Republicans from the deep South and rural Midwest. America is not likely to become Afghanistan, but it could easily become Italy or Greece or even Weimar Germany.
There is no simple explanation for why this is happening now, but there are precedents in American history for the kind of assault on government that the Republicans are mounting. First, there is the South of John Calhoun, which Sam Tannenhaus wrote about in The New Republic. Calhoun developed the doctrine of nullification—that states, claiming a higher Constitutional authority, could refuse to obey federal laws—in order to justify South Carolina’s opposition to tariffs adopted in 1828 and 1832. Calhoun’s doctrine became the basis of the state’s rights argument against attempts by the federal government to limit the expansion of slavery and a century later to enforce racial desegregation.
Secondly, there is the rise in 1937 of a conservative coalition of conservative Southern Democrats and rural Midwestern Republicans to block and repeal the New Deal through parliamentary maneuvers and investigations, which I wrote about two years ago. Calhounist nullification anticipates the anti-federal tactics of today’s Republican right. The conservative coalition of the late 1930s anticipates the composition of today’s Republican coalition and its grievance: the expansion of the federal safety net. Both of these older movements cited the United States Constitution as their authority for attempting to defy or dismantle the federal government. Like today’s Republican rightists, both older movements claimed to represent tradition and morality against a decadent modernity. They looked backwards. They were reactionary rather than conservative movements.
What happened to these movements gives some indication of what could happen to today’s Republican intransigents. The Calhounists precipitated a civil war, in which over 600,000 Americans died. The conservative coalition, on the other hand, faded temporarily from view and only reemerged in the last decades. That was because in 1941 Americans went to war against Nazi Germany and Japan. World War II unified Americans. In modern wars, the national government has to call upon all its citizens to do their part and to submerge their differences. Business made peace with labor; blacks served alongside whites. And that spirit of national unification lasted for 15 years after the war. It helped to give rise—although not without conflict—to a social compact between business and labor, an end to racial segregation and the preservation and expansion of New Deal programs like social security. If World War II had not intervened, it’s very likely that the conservative coalition would have grown stronger, and would have been able to stop the expansion of, if not undermine, social security.
The current political crisis—and the challenge presented by right-wing Republicanism—can be traced to the unraveling of this consensus. That began in the Sixties and then accelerated after the end of the Cold War. It took its final political form from the realignment of the parties, which, reaching a climax in 1994, brought conservative Democrats in the South into the Republican party. What had earlier been a coalition between Republicans and their conservative Democratic counterparts became a partisan effort entirely within the Republican party, which surfaced with a vengeance after the Republicans took control of Congress in November 1994. The next year, Republicans shut down the government, and in Bill Clinton’s second term, they tried to impeach the president on spurious grounds of sexual misconduct. (These events should be kept in mind before attributing the current fervor of the radical right entirely to the election of a black man as president.)
I wouldn’t expect the current crisis, which was precipitated by the descendants of Calhoun, to result in a civil war. The civil war, as Marx once wrote, was a revolutionary clash that pitted one mode of production against another. Nothing so momentous is at stake today. It also pitted one region against another, and it was fought with rifles and men on horseback. The largest effect is likely to be continued dysfunction in Washington, which if it continues over a decade or so, will threaten economic growth and America’s standing in the world, undermine social programs like the Affordable Care Act, and probably encourage more radical movements on the right and the left. Think of Italy, Greece, or Weimar Germany. Or think about what the United States would have been like if World War II had not occurred, and if Europe, the United States, and Japan had failed to pull themselves out of the Great Depression.
What is the alternative? How can the United States escape this quagmire? There seem to me be two kinds of things that have to happen—one having to do with political movements and the other with structural changes in American politics. Politically, the Republican far right has to be marginalized. That can happen either through ordinary conservative Republicans like Tennessee Senator Bob Corker or California Congressman Devin Nunes bolting the party or by the conservatives and moderates reclaiming control of the party and forcing the far right to create its own party along the lines of the old Dixiecrats or George Wallace’s American Independent Party. In the former case, you would have the emergence of an FDR-strength Democratic majority; in the latter, an Eisenhower era collaboration between the parties.
These kind of changes would have to be sustained by developments within the electorate. Roosevelt’s majority was sustained by the growth of an industrial labor movement. But today’s labor movement has not been able to adjust to post-industrial capitalism. Peter Beinart has argued for the rise of a “new new left” based in the political generations that have come of age in the Obama years. There is something to this, but I’m more inclined to see these voters as part of a movement that has taken place among college-educated workers since the 1960s; They backed the anti-Vietnam war, feminist, civil rights, and environmental movements; they contributed to the rise of public sector unionism; and they have staffed and funded a myriad of interest groups in Washington. But this complex of people and groups lack the organized clout that the labor movement enjoyed. The question for the future is: Can the older workplace-centered movement be fully replaced by the virtual community of Internet, as groups like Move-on have attempted to do?
Equally, if not more important, is the growth of organized business opposition to the radical right. So far, organized business groups have stayed largely on the sidelines. If anything, they have been more inclined to fund Republicans, and some of the very wealthy, often drawn from older extractive industries or fringe financial operations, have backed reactionary groups like the Club for Growth and Americans for Prosperity. To withstand the challenge from the radical right, the mainstream business groups would have to target the Republican right with the same fervor and determination that business groups of the early twentieth century targeted the socialist left. Organizations like the Fix the Debt that attempt to blame both sides equally are useless.
Structurally, much of the power of the radical right depends upon two loopholes in American politics that need to be closed. The first are the campaign finance laws, which allow eccentric billionaires like the Koch Brothers or Peter Thiel to exert inordinate influence over American politics. Restoring the McCain-Feingold limits on independent expenditures would help, but what is really needed is a liberal Supreme Court that could overturn Citizens United and the pernicious 1976 ruling Buckley v. Valeo that threw out the 1974 campaign finance law’s effort to limit total spending on individual campaigns. Getting a liberal Supreme Court would require the Democrats’ retention of the White House in 2016 and perhaps even in 2020, and getting it to overturn these laws would mean years of agitation directed at campaign finance reform. It’s no longer simply a good government issue; it’s about the distribution of power in American society.
The second loophole, for which Democrats and Republicans are equally to blame, are the congressional redistricting rules in states that allow whatever party controls the state government at decennial intervals to create maps that inordinately favor their own party. As the example of California shows, Democrats, who won a majority in the overall House vote in 2012, stand to benefit by non-partisan redistricting. Democrats need to make that happen, as well as repeal the new racist restrictions on voting rights cropping up in state politics. Much of the radical right, particularly in states like Texas, owe their seats to gerrymandered districts. This is a good government issue that could attract support from people who are not ready to blame the Republicans for the mess in Washington.
None of these changes will be easy to achieve. But the current shutdown—with a battle over the debt ceiling looming—should serve as an object lesson to many Americans, including the CEOs of the Business Roundtable and the Financial Services Roundtable, of the price that the country will pay for allowing the radical right to run wild in Washington.