Fears, Filibusters, and Financing

Following the defeat of Sens. Joe Manchin and Pat Toomey’s bipartisan proposal to expand background checks on gun purchases, Lawrence Keane, senior vice president of the National Shooting Sports Foundation, explained the Senate vote by saying “86 percent of the firearms retailers in the United States” opposed the legislation. Asked why a near consensus of Americans held a different view, he said, “I don’t know that they understand exactly what is meant by universal background checks.”

Mr. Keane could be forgiven for thinking the opinion of gun retailers nullifies the wishes of 90 percent of Americans. On a range of issues, that’s how things work in American democracy today. The background check legislation failed last week for two core reasons: The corrosive influence of money in politics and the abuse of Senate rules.

During the 2012 election, the National Rifle Association spent $1.5 million on direct contributions to candidates, $5.9 million on lobbying, and $19.8 million on outside spending (a sum that made it the 15th biggest independent spender). The money was not wasted. Of the 34 current senators to whom the NRA has contributed during the past three election cycles, 30 opposed the Manchin-Toomey amendment on Wednesday (counting Sen. Harry Reid as a yea vote, since he opposed the amendment for procedural reasons). Of the six senators to whom the even more hardline Gun Owners of America contributed, five opposed the amendment. The sole exception, Toomey, received a negligible $85 contribution.

Is it possible special interest money influenced senators’ votes? It’s impossible to know. But if only senators who received no gun lobby support voted on the legislation, it would have passed 50–11. Among gun lobby beneficiaries, it would have lost 34–5.

The defeat of the background check legislation also flowed from ongoing congressional gridlock, which reached record levels during the previous Congress and continues apace today.  Filibuster supporters argue it preserves minority input in the legislative process. In reality, it imposes the minority’s will on the majority.    

In the lead-up to the vote, Sen. Ted Cruz (R-Tex.) insisted expanding background checks required supermajority support for passage: “[W]hat should the vote threshold be for legislation that would violate potentially the Bill of Rights? I think it should be a minimum of 60 votes.” Of course, if expanding background checks actually implicated Second Amendment rights, a two-thirds threshold would be required in both chambers of Congress to pass a constitutional amendment.

Cruz’s intention was to perpetuate the myth that the filibuster is enshrined in the Constitution, validating the transformation of the procedural tactic into a de facto minority veto power. The filibuster is a creature of Senate Rules, not the Constitution. The rules can change, and they should change, when a position supported by 90 percent of the public cannot secure a simple up-or-down vote in the U.S. Senate. The filibuster, combined with the pervasive role of money in politics, allows a small but intense minority to create public policy in its own image.

Ultimately, the cowardly senators who caved under pressure are not to blame. At fault are the systems of government, which allow popular will to be subverted not just in the wake of tragedy, but repeatedly and consistently during the daily legislative grind. If something is not done to fix Washington, the consequences will be measured not by body counts alone, but also in further lost faith in government, apathy, and hopelessness.

Professor Ira Katznelson’s recently published book, “Fear Itself,” documents the serious doubts on the eve of President Franklin Delano Roosevelt’s inauguration in 1933 about whether democratic institutions were equal to the challenges the country faced. Having watched the republics of Europe collapse to authoritarian rule, Katznelson documents how a range of intellectuals urged FDR to seize temporary dictatorial powers. Widely-respected journalist Walter Lippmann wrote:

[T]he danger that we have to fear is not that Congress will give Franklin D. Roosevelt too much power, but that it will deny him the power he needs. The danger is not that we shall lose our liberties, but that we shall not be able to act with the necessary speed and comprehensiveness.

Fortunately, American democracy proved more resilient than Lippmann and others anticipated, but it is not indestructible. At a fearful time similar to the moment when FDR reminded the nation that it had “nothing to fear but fear itself,” campaign finance and Senate Rules reform are of paramount importance. Representative democracy works because, as Rousseau theorized, sovereignty does not rest in the hands of the few and powerful but in the collective will of the people. When special interests are able to commandeer some of our sovereignty by exploiting arcane Senate rules and porous campaign finance laws, the social contract at the heart of our democracy is breached. Our form of government can survive only so long under such stresses.