Dædalus Coming up in Dædalus

Cover_Spring 2013_Feb 27_Preamble Only_Brown text_New box 3/18/2013 10:05 AM Page 1 Dædalus coming up in Dædalus:

Immigration Douglas S. Massey, Rogelio Saenz & Karen Manges Douglas, Charles & the Future Hirschman, Marta Tienda & Susana Sanchez, Victor Nee & Hilary Dædalus of America Holbrow, Nancy Foner, Alejandro Portes & Adrienne Celaya, Audrey Singer, Mary C. Waters & Philip Kasinitz, Helen B. Marrow, Michael Journal of the American Academy of Arts & Sciences Jones-Correa & Els de Graauw, Cristina M. Rodriguez, Rubén Rumbaut, Spring 2013 Richard Alba, Frank D. Bean, Jennifer Lee & James D. Bachmeier, and others Spring 2013: American Democracy & the Common Good Spring 2013: American Democracy American Gerald Early, Patrick Burke, Mina Yang, Todd Decker, Daniel Geary, American Leslie C. Berlowitz Foreword 5 Music Maya Gibson, Charlotte Greenspan, Ellie Hisama, George E. Lewis, Democracy Norman J. Ornstein Introduction 6 & the John McWhorter, Ronald Radano, Guthrie Ramsey, David Robertson, William A. Galston The Common Good: Terry Teachout, Sherrie Tucker, and others Common Good Theoretical Content, Practical Utility 9 Thomas E. Mann Finding the Common Good in an Era of What Humanists Do Denis Donoghue, Francis Oakley, Gillian Beer, Michael Putnam, & Norman J. Ornstein Dysfunctional Governance 15 Henri Cole, J. Hillis Miller, Patricia Meyer Spacks, Rachel Bowlby, Jeffrey Rosen Can the Judicial Branch be a Steward in a Karla FC Holloway, James Olney, Ross Posnock, Scott Russell Sanders, Polarized Democracy? 25 and others Geoffrey R. Stone The Supreme Court in the 21st Century 36

plus Growing Pains in a Rising China, The Invention of Courts &c Andrew A. Hill, The Origins & Lessons of Leonard Wong Public Con½dence in the Military 49 & Stephen J. Gerras Kathleen Hall Jamieson The Challenges Facing Civic Education 65 Mickey Edwards The Case for Transcending Partisanship 84 Jim Leach Citizens United: Robbing America of Its Democratic Idealism 95 Ralph Gomory The American Corporation 102 & Richard Sylla Andy Stern Unions & Civic Engagement: How the Assault on Labor Endangers Civil Society 119 Peter Dobkin Hall Philanthropy & the Nonpro½t Sector 139 Michael Schudson Reluctant Stewards: Journalism in a Democratic Society 159 Deborah Tannen The Argument Culture 177 Amy Gutmann Compromise & the Common Good 185 & Dennis Thompson Howard Gardner Reestablishing the Commons for the Common Good 199 Kwame Anthony Appiah The Democratic Spirit 209 U.S. $13; www.amacad.org Cherishing Knowledge · Shaping the Future Cover_Spring 2013_Feb 27_Preamble Only_Brown text_New box 3/18/2013 10:05 AM Page 2 Book_Spring 2013_Shinner.qxd 3/18/2013 10:25 AM Page 1

Inside front cover: A printing of the U.S. Constitution, believed to have been printed immediately following the printing in Dunlap and Claypoole’s Pennsylvania Packet on September 19, 1787, in Philadelphia. Image courtesy of the Library of Congress, Rare Book and Special Collections Division, Continental Congress & Constitutional Convention Broadsides Collection. Book_Spring 2013_Shinner.qxd 3/18/2013 10:25 AM Page 2

Norman J. Ornstein and William A. Galston, Guest Editors Phyllis S. Bendell, Managing Editor and Director of Publications D Micah J. Buis, Senior Editor and Associate Director of Publications Peter Walton, Senior Editorial Assistant

Committee on Studies and Publications Jerrold Meinwald and John Mark Hansen, Cochairs; Jesse H. Choper, Denis Donoghue, Gerald Early, Carol Gluck, Linda Greenhouse, John Hildebrand, Jerome Kagan, Philip Khoury, Neal Lane, Steven Marcus, Eric Sundquist; ex of½cio: Leslie Cohen Berlowitz

Dædalus is designed by Alvin Eisenman.

The typeface is Cycles, designed by Sumner Stone at the Stone Type Foundry of Guinda, California. Each size of Cycles has been separately designed in the tradition of metal types. Book_Spring 2013_Shinner.qxd 3/18/2013 10:26 AM Page 3

Dædalus Journal of the American Academy of Arts & Sciences

Design for the hedge maze is by Johan Vredeman de Vries, from Hortorum viridariorumque elegantes & multiplices formae: ad archi- tectonicae artis normam affabre delineatae (Cologne, 1615).

Dædalus was founded in 1955 and established as a quarterly in 1958. The journal’s namesake was renowned in ancient Greece as an inventor, scientist, and unriddler of riddles. Its emblem, a maze seen from above, symbol- izes the aspiration of its founders to “lift each of us above his cell in the lab- yrinth of learning in order that he may see the entire structure as if from above, where each separate part loses its comfortable separateness.” The American Academy of Arts & Sciences, like its journal, brings together distinguished individuals from every ½eld of human endeavor. It was chartered in 1780 as a forum “to cultivate every art and science which may tend to advance the interest, honour, dignity, and happiness of a free, independent, and virtuous people.” Now in its third century, the Academy, with its nearly ½ve thousand elected members, continues to provide intellectual leadership to meet the critical challenges facing our world. Book_Spring 2013_Shinner.qxd 3/18/2013 10:26 AM Page 4

Dædalus Spring 2013 Printed in the United States of America by Issued as Volume 142, Number 2 Cadmus Professional Communications, Science Press Division, 300 West Chestnut Street, © 2013 by the American Academy Ephrata pa 17522. of Arts & Sciences Can the Judicial Branch be a Steward Newsstand distribution by Ingram Periodicals in a Polarized Democracy? Inc., 18 Ingram Blvd., La Vergne tn 37086. © 2013 by Jeffrey Rosen Postmaster: Send address changes to Dædalus, “Self-Interest Well Understood”: 55 Hayward Street, Cambridge ma 02142-1315. The Origins & Lessons of Public Periodicals postage paid at Boston ma and at Con½dence in the Military additional mailing of½ces. by Andrew A. Hill, Leonard Wong & Stephen J. Gerras Subscription rates: Electronic only for non- U.S. Government Document: member individuals–$44; institutions–$123. No rights reserved Canadians add 5% gst. Print and electronic for What is the Common Good? The Case for nonmember individuals–$49; institutions– Transcending Partisanship $136. Canadians add 5% gst. Outside the United © 2013 by Mickey Edwards States and Canada add $23 for postage and han- “Citizens United”: Robbing America of dling. Prices subject to change without notice. Its Democratic Idealism © 2013 by Jim Leach Institutional subscriptions are on a volume- The American Corporation year basis. All other subscriptions begin with © 2013 by Ralph Gomory the next available issue. & Richard Sylla Single issues: $13 for individuals; $34 for insti- The Argument Culture: Agonism & tutions. Outside the United States and Canada the Common Good add $6 per issue for postage and handling. © 2013 by Deborah Tannen Prices subject to change without notice. Valuing Compromise for the Common Good © 2013 by Amy Gutmann Claims for missing issues will be honored free & Dennis Thompson of charge if made within three months of the Reestablishing the Commons for the publication date of the issue. Claims may be Common Good submitted to [email protected]. Members of © 2013 by Howard Gardner the American Academy please direct all questions and claims to [email protected]. Editorial of½ces: Dædalus, Norton’s Woods, 136 Irving Street, Cambridge ma 02138. Advertising and mailing-list inquiries may be mit Phone: 617 491 2600. Fax: 617 576 5088. addressed to Marketing Department, Press ma Email: [email protected]. Journals, 55 Hayward Street, Cambridge 02142-1315. Phone: 617 253 2866. Fax: 617 253 1709. Library of Congress Catalog No. 12-30299 Email: [email protected]. Dædalus publishes by invitation only and as- Permission to photocopy articles for internal sumes no responsibility for unsolicited manu- or personal use is granted by the copyright scripts. The views expressed are those of the owner for users registered with the Copyright author of each article, and not necessarily of the Clearance Center (ccc) Transactional Report- American Academy of Arts & Sciences. ing Service, provided that the per-copy fee issn e-issn of $12 per article is paid directly to the ccc, Dædalus ( 0011-5266; 1548-6192) ma is published quarterly (winter, spring, summer, 222 Rosewood Drive, Danvers 01923. fall) by The mit Press, 55 Hayward Street, Cam- The fee code for users of the Transactional bridge ma 02142-1315, for the American Academy Reporting Service is 0011-5266/13. Submit all other permission inquiries to the Subsidiary of Arts & Sciences. An electronic full-text version mit of Dædalus is available from The mit Press. Rights Manager, Press Journals, by com- Subscription and address changes should be pleting the online permissions request form addressed to mit Press Journals Customer Ser- at www.mitpressjournals.org/page/copyright vice, 55 Hayward Street, Cambridge ma 02142-1315. _permissions. Phone: 617 253 2889; u.s./Canada 800 207 8354. Fax: 617 577 1545. Email: [email protected]. Book_Spring 2013_Shinner.qxd 3/14/2013 8:45 AM Page 5

Foreword

Leslie C. Berlowitz

The essays in this volume were collected as part of an ongoing American Academy project, Stewarding America: Civic Institutions and the Public Good. The project brings together leading scholars and experts to analyze the institutions that are critical for inspiring good citizenship. Institutions such as Congress, the courts, the media, the military, corporations, unions, the nonpro½t sector, and the education system are held in public trust. They provide a continuity of law and procedure, of practice and participation, and of information and knowledge from one generation to the next. When they serve the short-term interests of particular individuals or groups, they erode public trust; they erode the faith of citizens in the longest functioning constitutional democracy. Several of the essays suggest ways for our government, our schools, and our businesses to pursue the “common good.” They demonstrate what it would take, personally as well as collectively, to inspire a greater commitment to good citizenship. This volume is intended to promote a much-needed public conversation about how to reclaim a sense of decency in American politics and American life. We are grateful to Norman Ornstein, of the Amer- ican Enterprise Institute, for leading this Academy effort; to William Galston, of the Brookings Institu- tion, for coediting this issue of Dædalus with Norman; LESLIE C. BERLOWITZ is the 45th President of the American Academy to the S. D. Bechtel, Jr. Foundation for inspiring of Arts and Sciences. She has been and supporting our work; and to the distinguished a Fellow of the American Academy authors in this volume who have contributed their since 2004. thinking about our nation and its future.

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Introduction

Norman J. Ornstein

What is the common good? The Latin root of “common,” communis, is the same as the root of “community”; it evokes “shared,” “ordinary,” and “public” all at the same time. In civic terms, the common good is the shared welfare of ordinary people–ordinary citizens working together for public ends. Individual citizens have responsibilities to the community, and the community in turn protects, defends, and uplifts its citizens. What enables this exchange of responsibility and cooperation are our civic institutions–those that are part of the fabric of governance and those that are part of civil society. The essays in this volume focus primarily on con- NORMAN J. ORNSTEIN, a Fellow temporary institutions and their relationship to the of the American Academy since common good. They were written at a time of con- 2004, is Resident Scholar at the siderable stress in the American polity. Some of that American Enterprise Institute for stress flows from the anti-institutional, anti-lead- Public Policy Research. He also ership populism that often emerges during times of writes the weekly column “Con- economic hardship. At the moment, no institution gress Inside Out” for Roll Call. His publications include It’s Even Worse in America is held in high regard by Americans, Than It Looks: How the American with the exception of the military (and even the Constitutional System Collided With military, in the midst of individual miscreance and the New Politics of Extremism (with allegations of scandal, is in a less secure position). Thomas E. Mann, 2012), The Broken This distrust for institutions and leaders has been Branch: How Congress is Failing Amer- ampli½ed by the sharp levels of ideological and par- ica and How to Get It Back on Track tisan polarization that characterize American politics, (with Thomas E. Mann, 2006), and The Permanent Campaign and Its Fu- especially but not exclusively at the national level. ture (edited with Thomas E. Mann, Polarization itself is not new in America, but the 2000). He is chair of the Academy’s divisions with which we now contend have become Stewarding America project. almost tribal in nature. And a new media dynamic,

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with its own tribal divisions, only accentu- arena. Still, the authors note that the cur- Norman J. ates the problems–including a coarsened rent balance is not guaranteed to last. Ornstein political and social culture. It seems we are Kathleen Hall Jamieson then tackles the moving further every day from the ideal challenges of civic education–an obvious of a public square, where citizens share a means of advancing the well-being of our common set of values and facts and can democratic society, and an obvious area debate and deliberate to ½nd the common of concern in an era of low voter turnout good. and high rates of civic ignorance. How well do our institutions advance, The ½nal two essays in the section focus or at least protect, the common good? on the lifeblood of the American demo- What are their appropriate roles? Where cratic system: political parties, elections, do institutions ½t in historical context? and the campaign ½nance system. Mickey What can be done within or outside the Edwards canvasses America’s political institutions to ameliorate the problems landscape, including primaries that pull and restore a better balance? lawmakers toward ideological poles, redistricting that distorts incentives and This volume is divided into three parts. heightens partisan divisions, poisoned The ½rst part focuses on public institu- discourse, and a disastrous system of cam- tions, beginning with William Galston’s paign ½nancing. He highlights how all these look at the Preamble and the Constitution aspects together have elevated partisan- itself. He dissects these founding docu- ship and have diminished prospects for ments’ relationship to the theory and prac- compromise and concern about the com- tice of the common good. The section then mon good. Edwards’s former colleague in moves on to examine the larger problem the House of Representatives, Jim Leach, of dysfunctional governance. Tom Mann then examines the Supreme Court’s Citizens and I describe the erosion of our political United decision on campaign ½nancing, system, which was built around debate ½lleting its reasoning and decrying its and deliberation, divided powers compet- results. ing with one another, regular order, and The second part of the volume considers avenues to punish and curtail corruption. nonpublic institutions, including corpo- Jeffrey Rosen and Geoffrey Stone next rations, unions, the nonpro½t and phil- focus on manifestations of these problems anthropic sector, and journalism. Ralph in the American judiciary. Rosen examines Gomory and Richard Sylla trace the his- the tensions caused by a Court striving tory of the corporation in America and for legitimacy in an era of polarized politics argue that more recent changes in incen- –when the Court itself is becoming more tives have led corporations to pursue the overtly polarized on key decisions. Stone singular goal of enhancing shareholder takes an even more critical look at the value–at the expense of their role as stew- Roberts Court and its key decisions, in- ards of the common good. Andy Stern, the cluding Citizens United. former head of a major union, then offers a A somewhat more sanguine view follows full-throated defense of unions as protec- on the military. Andrew Hill, Leonard tors and enhancers of the public good, even Wong, and Stephen Gerras write about as he acknowledges decreased union mem- the continuing high regard Americans bership and instances of corruption and feel toward their military, as reverence for scandal that have challenged labor’s image. the military and its mission has superseded Noting that the framers of the Consti- fear of military abuses in the domestic tution discouraged the intervention of pri-

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Introduction vate associations between citizens and their Project, which nurtures ethical behavior elected governments, Peter Dobkin Hall and cultivates a broader sense of the value examines the role of nonpro½t organiza- and reward of acting in the common good. tions and philanthropy throughout Amer- Appiah examines the underpinnings of the ican history. He argues that the recent democratic spirit, including the obligations accumulation of philanthropic resources of individual citizens; this foundation, he has not been matched by any expansion argues, is key to the American experiment. of our moral imagination to challenge in- Each essay analyzes a particular section justice or create great new institutions. of our social fabric. Taken together, they The title of Michael Schudson’s essay on provide a strong overview of the entire journalism is itself instructive: “Reluctant tapestry. Our civic life may be fraying at Stewards.” Schudson reminds us that the edges, the essayists suggest, but it is journalists are ambivalent about their possible to reverse the damage and restore role in society, and he proposes three gen- our sense of common purpose. Indeed, it eral principles for the modern journalistic is necessary and urgent that we get to the enterprise: it requires loose oversight; it work of doing so. needs to be decentralized and multiform; and journalists need to acknowledge their unresolved position between norms of “social trustee professionalism” and “expert professionalism.” The ½nal set of essays looks more broadly at the context for our discussion of the “common good,” including the larger public culture of argument and the framers’ desired culture of compromise to bene½t the public good. Revisiting her important 1998 book, The Argument Culture, Deborah Tannen focuses on the concept of “agonism”–taking a warlike stance to accomplish something that is not literally a war– and wonders if the more appropriate term for contemporary American civic life would be “combat culture.” Amy Gutmann and Dennis Thompson, in turn, amplify the argument they make in their new book, The Spirit of Compromise. They distinguish between compromise and ½nding common ground; the former, requiring negotiation and sacri½ce, is more dif½cult to achieve, yet it remains a linch- pin to American democracy. The volume concludes with essays by Howard Gardner and Kwame Anthony Appiah. Gardner considers our current challenges by reflecting on his long- standing efforts with the GoodWork

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The Common Good: Theoretical Content, Practical Utility

William A. Galston

Abstract: Despite skepticism about the common good, the idea has both theoretical content and practical utility. It rests on important features of human life, such as inherently social goods, social linkages, and joint occupation of various commons. It reflects the outcome for bargaining for mutual advantage, subject to a fairness test. And it is particularized through a community’s adherence to certain goods as objects of joint endeavor. In the context of the United States, these goods are set forth in the Preamble to the Constitution–in general language, subject to political contestation, for a people who have agreed to live together in a united political community. While the Preamble states the ends of the union, the body of the Constitution establishes the institutional means for achieving them. So these institutions are part of the common good as well. These are the enduring commonalities–the elements of a shared good– that ceaseless democratic conflict often obscures but that reemerge in times of crisis and civic ritual.

Many people who think of themselves as realists rather than cynics dismiss the common good as pious rhetoric. There is no shortage of leaders who have deployed the phrase in just that way. And there is evidence to support this skeptical view. Most societies are divided along lines of class, eth- nicity, and religion. Free societies with market economies proliferate what we have come to call interest groups, just as James Madison predicted. In the United States, partisan polarization has intensi½ed in recent decades and has become inter- WILLIAM A. GALSTON, a Fellow twined with dueling ideologies whose views of the of the American Academy since proper ends and means of politics clash fundamen- 2004, is a Senior Fellow and the tally. Nonetheless, the idea of the common good is Ezra K. Zilkha Chair in Governance neither vacuous nor futile. It has real content in Studies at the Brookings Institu- theory and real utility in practice. tion. His publications include Pub- I begin by examining three kinds of social facts lic Matters: Essays on Politics, Policy, that are easy to overlook because they are so ubiq- and Religion (2005), The Practice of Liberal Pluralism (2005), and Liberal uitous. Pluralism: The Implications of Value Inherently social goods. Some goods are inherently Pluralism for Political Theory and social. Telling a joke to oneself is virtually impossi- Practice (2002). ble, because humor requires surprise. It is barely

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The possible to imagine a brain-damaged fectious. If an unvaccinated child gets Common individual who remembers jokes only in sick, the odds are that many of her class- Good: Theoretical the act of retelling them and forgets them mates will as well. Because we agree that Content, immediately. Such a person might be ca- health is an important good for each indi- Practical Utility pable of surprising himself. But the science- vidual, and because we understand that ½ction character of this example suggests the health of each individual is linked to how fanciful it is. the health of others, we can say that pub- Many games are inherently social goods lic health is an element of the common because the stimulation and satisfaction good. So conceived, the common good is they evoke require the interplay of two or anything but a demanding moral ideal. more independent minds and wills. Play- It is rather a matter of enlightened self- ing chess with oneself is possible as a interest. technical matter, but the experience is It is always tempting, however, to look not the same. for ways around the interest-based logic Human life itself has inherently social of the common good–that is, for ways of dimensions. To survive infancy and devel- cutting the links that bind our fate to that op human attributes, we need what has of others. Before the development of mod- been called the social womb–the nurturing ern medicine, people of means tried to aid and companionship of other human put geographical distance between their beings. Once grown, we seek out the com- families and the epicenter of epidemics. pany of others, not only for speci½c bene- Those who could decamped for their coun- ½ts, but often because we feel isolated if try homes. Often the disease would follow we are alone too much or too long. We them, because some of those who fled differ among ourselves, of course. Some were already infected. of us ½nd solitude unbearable, while oth- In our own times, fortunate individuals ers experience ordinary social life as bur- have used a similar strategy of de-linkage densome. But even extreme introverts to escape the social version of public health crave the company of others–on their own hazards: violent crime. They use their terms. So we assemble in parks and malls wealth to live in forti½ed houses or well- and bars, often not for speci½c purposes, patrolled gated communities. When they but just to be with others. And when we travel, private armed guards accompany do, we enjoy a kind of good together that them. In some strati½ed societies, they we cannot enjoy alone. use guards and armored cars to protect Social linkages. In addition to these in- their children from being kidnapped on herently social activities, there are what I the way to school. call social linkages–aspects of our lives in These evasive measures are very costly, which the well-being of some people and not only in material terms. They mean affects the well-being of others. Mental living a life of constant fear, and they illness is a familiar example: if one family entail a considerable loss of liberty. At member is afflicted, it disrupts the lives of some point, most societies decide that it the others. Martin Luther King, Jr., made is better to address crime collectively–to much the same claim about segregation: make the investments in police and courts oppression damages the oppressors, not and prisons that a credible program of just their victims. criminal justice requires. As the residents The regime of public health rests on the of New York and many other U.S. cities fact of linkages. Societies mandate vacci- discovered during the past few decades, nations because so many diseases are in- an investment in crime control can pay

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huge dividends to society as a whole. leave both parties to the negotiation better William A. When people can walk without fear in off. This dyadic common good exists only Galston their neighborhoods, they enjoy more potentially; it takes cooperation to make freedom and more security. And besides, it actual. businesses move in, the local economy On some occasions there is only one grows, and property values increase. Once possible agreement, a single point of tan- we accept that social linkage is an in- gency between the most that A is willing escapable fact, we can act in ways that to offer and the least that B is willing to bene½t society as a whole. Here again, the accept. In the vast majority of cases, how- common good is enlightened self-interest. ever, there is a zone of overlap between The good of the commons. As social beings, the arrangements that could be acceptable we ½nd, create, and congregate in various to both. Most bargaining tactics, such as shared places. Some are constructed phys- bluf½ng, are designed to secure for oneself ical spaces, such as streets, parks, and the largest possible share of the bene½ts public buildings. Others are technology- of cooperation. So the common good nei- based and virtual. Still others, such as the ther implies nor requires comprehensive air we breathe, are part of the natural en- harmony between the parties: there is vironment. Despite these differences, they almost always competition within the zone have a common attribute: how we behave of mutually bene½cial cooperation. in these places affects everyone’s ability In actual politics, this competition often to enjoy them over time. If we carelessly takes the form of arguments about allo- leave an unextinguished ½re in a camp- cating the costs of maintaining important ground, the entire facility may go up in communal activities. If we agree that edu- flames. If we fail to control emissions from cation is vital, whose taxes will make it vehicles that use fossil fuels, atmospheric possible? Does it make sense to rely as pollutants can increase the incidence of heavily as we now do on local communi- asthma and other ills. So the common ties, principally through property taxes? good includes the good of the commons. If we agree that it is important to main- While these three kinds of social facts tain a certain level of military capabilities, –intrinsically social goods, social linkages, who will participate in the armed forces, and shared places–are aspects of the how are they to be chosen and compen- common good, they hardly exhaust it. sated, and who will be asked to pay? If we As individuated beings, our separate exis- go to war, should there be a “war tax” to tences generate clashes of interests, and which everyone is asked to contribute? our liberty gives rise to competing con- The common good requires a balance be- ceptions of the good. These familiar dif- tween the bene½ts and burdens of social ferences are themselves social facts, and cooperation such that all (or nearly all) they challenge all but the most limited citizens believe that the contribution they understandings of the common good. In are called on to make leaves them with a the face of difference, the common good net surplus. If they cease to believe that, is an achievement, not a fact. they will try to lighten these burdens, either by evading some taxation or, in extreme The everyday activity of bargaining illu- cases, by leaving the community through minates some basic features of the achieved exit (for individuals) or secession (for common good. The animating reality of groups). this activity is the belief that relative to It turns out that the criterion of mutual the status quo, some agreement would advantage is only part of what makes bar-

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The gains mutually acceptable. In a famous We cannot rule out the possibility that Common two-person experiment, one person is a workable conception of the global com- Good: Theoretical handed ten $1 bills and is asked to divide mon good will emerge from these discus- Content, them into two shares. If the other person sions. At present, however, the common Practical Utility agrees to the division, each receives his good is typically predicated on indepen- designated share; if not, neither gets any- dent political communities, the kinds of thing. One might imagine that the sec- entities represented in the United Nations. ond party would accept any division, These communities are not pre-given because even a small share leaves him natural facts, of course; they are in part better off. In practice, not so; beyond a human artifacts. Often one part of a com- certain point of inequality, a sense of un- munity will decide that a common good fairness trumps the potential gain from linking it to the rest of the community no the transaction. The need for mutual con- longer exists (if it ever did). Successful sent establishes a kind of bedrock equality secessionist movements redraw the bound- between the parties that spills over into, aries of the communities within which the and delimits, the zone of acceptable agree- common good is pursued. And so, in ments. reverse, do successful efforts to integrate It is always possible that an agreement independent states into a single over- that meets the tests of fairness and mutual arching political community. advantage will work to the disadvantage of those not involved in the decision. In The U.S. Constitution begins with three many poor communities, for example, fateful words: We the people. It could have gentri½cation bene½ts both developers been (and, as dissidents such as Patrick and new incoming residents while pricing Henry argued, should have been) “We the current residents out of the market. Rent states.” Instead, the Constitution invoked increases can also make it impossible for –and to some extent called into being–a long-established “mom and pop” busi- united political community with a single nesses to survive. So third parties will often demos. appeal to a conception of the common There is a precondition of community: good broadened to include them, and they the people who form it must want to live will resort to nonmarket mechanisms, such together as a unity, and they must think as street protests and local governments, of themselves as sharing a common fate. to make sure their voices are heard. Communities fail when this condition is This raises a question fundamental to not or ceases to be satis½ed. In states such the theory and practice of the common as Iraq and Syria, the identities of different good: how are we to de½ne the limits of ethnic and religious groups contend with the community within which the principle –and may trump–their shared identity of commonality applies? Environmen- as members of the same political com- talists argue for a global de½nition: the munity. And once-successful communi- consumption of fossil fuels produces ex- ties can break down when disagreements ternalities that affect the entire human race. on fundamentals trump their shared his- (The long-running international negotia- tory. In Federalist No. 2, John Jay argued tions to produce a global compact on cli- that “Providence has been pleased to give mate change represent an effort–which this one connected country to one united may fail–to reframe a zero-sum conflict people–a people descended from the same between developed and developing nations ancestors, speaking the same language, as the quest for mutual advantage.) professing the same religion, attached to

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the same principles of government.” Note also that the Preamble de½nes the William A. Three quarters of a century later, Abra- common good in highly general terms. Galston ham Lincoln concluded his First Inaugu- We are free–indeed, invited–to argue ral with a desperate plea to the South: about what it means to establish justice or “We are not enemies, but friends. We to promote the general welfare. And the must not be enemies. Though passion “liberty” we are pledged to protect and may have strained, it must not break, our pass on to future generations is among the bonds of affection.” In the end, of course, most contestable terms in the political the “mystic chords of memory” to which lexicon. While the Preamble sets the terms Lincoln appealed proved weaker than did of debate about the American common differences of interest and principle, and good, it hardly prejudges the outcome of also the sentiments of anger and fear. The that discussion, and it leaves open the pos- United States barely survived the ensuing sibility that the prevailing understanding ordeal; many communities do not, and of key terms may change over time. (His- their common good dissolves as an effec- tory suggests that this open-endedness is tive force. anything but a defect.) But in 1787, the dominant reality was One ½nal observation about the Pre- Jay’s, not Lincoln’s. Taking the presump- amble: it is limited geographically but not tion of one united people as granted, the chronologically. While only the individ- Preamble went on to sketch the content uals associated with a particular place– of the common good the Constitution was the United States–fall under the canopy created to foster. The words that follow of the Preamble’s promise, the founders “in order to” specify the key elements of sought to extend it beyond their own gen- that good: a more perfect union, justice, eration, to “our posterity.” To remain true domestic tranquility, the common defense, to the Constitution, no generation may the general welfare, and the blessings of seize for itself fleeting advantages that risk liberty. In principle, all were to share in leaving future generations with dimin- these goods, and all were to bene½t from ished shares of the goods that the founding them. (The gap between this principle charter places at the heart of our collec- and actual practice is one of the central tive enterprise. drivers of American history.) If the Preamble states the ends of the Note that the Preamble de½nes a dis- union, the body of the Constitution sets tinctive understanding of the common forth the institutional means for achiev- good for a speci½c society. Unlike some ing them. And these institutions are part other societies, America’s common good of the common good as well. They enable does not explicitly include theological not only collective decision-making but doctrines or a canon of the virtues. We also the capacity to implement decisions are free to argue (and throughout our his- once they are made. They make possible tory many have argued) that the common the peaceful resolution of disputes. They good we seek is unattainable without reli- are designed to ward off tyranny, whether gion and civic morality. George Washing- of individuals or of groups, and to offer ton and Alexis de Tocqueville are hardly a voice for all. They empower majorities alone in seeing just such connections. But while protecting minorities. And the Con- as citizens, we are free to disagree, and to stitution provides, as well, for processes draw practical inferences (for example, of amendment to improve its capacity to about the wisdom of public aid to paro- promote these ends when changing condi- chial schools) from our divergent views. tions make such improvements necessary.

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The The common good, to repeat, is no guar- ty’s economic development. If develop- Common antee of social and political harmony. Our ment was designed to boost the commu- Good: Theoretical constitutional common good establishes nity’s overall production and wealth, it Content, a framework of ends and means about quali½ed as a public use that justi½ed the Practical Utility which, and within which, vigorous contes- taking of private property. This decision tation is inevitable. We disagree, of course, proved enormously controversial, in part about how different sectors of society are because it subjected what many regarded to divide the burden of maintaining a free as an individual right to a collective cal- and well-functioning political community. culation. The good of private property, But the debate can touch on even deeper argued many critics, is not something we issues. If the common good encompasses can determine simply by adding up the multiple goods, then some of its elements consequences of different patterns of prop- often stand in tension with one another. erty ownership for all affected individuals. A fair trial is an element of the common There is of course a continuum of con- good as we understand it; so is a free press. testation, from clashes that can trigger What should we do when they collide? civil war to the disputes that characterize Even when only one good is at stake, everyday political and social life. But even we disagree on what its general speci½- disagreements over public policy–should cation means in speci½c cases. The Fourth the federal government guarantee that no Amendment protects us from “unreason- citizen must go without health insur- able” search and seizure. But how do we ance?–can trigger fears that the commu- draw the line between what’s reasonable nity’s fundamental character is being trans- and what isn’t? Reasonable people often formed. The passions and divisions of the disagree about what it means to act rea- moment often lead to myopia, a blurring sonably in speci½c cases. of the vision that allows us to discern what Controversy over the common good we share despite our differences. It is the can even raise an issue on which moral role of statesmanship–always in short philosophers have long been divided: is supply–to remind us of the enduring com- the good of the community to be deter- monalities that we are forever in danger mined by aggregating the consequences of overlooking. of different courses of action for all members of the community? For example, while the right to acquire and hold private property is an important element of the common good in the United States, it is not absolute. The Fifth Amendment states that “private property [shall not] be taken for public use without just compensation.” We may leave aside the often contentious issue of when compensation is just and focus on the concept of public use. No one doubts that roads, post of½ces, and military bases fall under this concept. In 2005, however, a ½ve-member majority of the U.S. Supreme Court allowed the city of New London, Connecticut, to take private property to further the communi-

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Finding the Common Good in an Era of Dysfunctional Governance

Thomas E. Mann & Norman J. Ornstein

Abstract: The framers designed a constitutional system in which the government would play a vigorous role in securing the liberty and well-being of a large and diverse population. They built a political system around a number of key elements, including debate and deliberation, divided powers competing with one another, regular order in the legislative process, and avenues to limit and punish corruption. America in recent years has struggled to adhere to each of these principles, leading to a crisis of governability and legitimacy. The roots of this problem are twofold. The ½rst is a serious mismatch between our political parties, which have become as polarized and vehemently adversarial as parliamentary parties, and a separation-of-powers governing system that makes it extremely dif½cult for majorities to act. The second is the asymmetric character of the polarization. The Republican Party has become a radical insurgency–ideologically extreme, scornful of facts and compromise, and dismissive of the legitimacy of its political opposition. Securing the common good in the face of these developments will require structural changes but also an informed and strategically focused citizenry.

From Federalist No. 1 on, the framers of the American political system showed a deep concern about the role of government as a trustee of the people, grappling with questions about the power, structural stability, and credibility of government. In that ½rst Federalist paper, Alexander Hamilton defended a vigorous role for government: “[It] will THOMAS E. MANN, a Fellow of the be equally forgotten that the vigor of government American Academy since 1993, is is essential to the security of liberty; that, in the the W. Averell Harriman Chair and contemplation of a sound and well-informed judg- Senior Fellow in Governance Stud- ment, their interests can never be separated; and ies at the Brookings Institution. that a dangerous ambition more often lurks behind NORMAN J. ORNSTEIN, a Fellow the specious mask of zeal for the rights of the peo- of the American Academy since ple than under the forbidding appearance of zeal 2004, is Resident Scholar at the for the ½rmness and ef½ciency of government.”1 American Enterprise Institute for In Federalist No. 46, James Madison wrote, “The Public Policy Research. federal and state governments are in fact but differ- (*See endnotes for complete contributor ent agents and trustees of the people, constituted biographies.) with different powers and designed for different

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Finding the purposes.”2 And in Federalist No. 62, tem, were thus essential for the common Common Madison, outlining and defending the good of a society. The framers saw several Good in an Era of special role of the Senate, reflected at challenges peculiar to the new American Dysfunc- length on the need for stable government country. It was, as they wrote, an “extend- tional Governance and the danger of mutable policy: ed republic,” a huge geographic expanse “[G]reat injury results from an unstable and a society containing dramatically government. The want of con½dence in diverse populations, including people liv- the public councils damps every useful ing in rural areas so remote that they lit- undertaking, the success and pro½t of erally might not see other human beings which may depend on a continuance of for months, and others living in urban existing arrangements.”3 areas far more densely packed than today’s Stable government, to Madison, includ- Manhattan. How could the new governed an underlying and enduring legitimacy ment build consensus and legitimacy in the legislative process. This meant around policies that would affect all citi- both a disciplined government that did zens, in light of their different interests, not spew out a plethora of unnecessary lifestyles, and backgrounds? The demands and careless laws, and a government that of the American political system differed did not produce contradictory laws or from those in Britain, a much smaller and reversals of laws so frequently that citi- far more homogeneous culture and society. zens questioned the content and legiti- Instead of a parliamentary system, the macy of the standing policies affecting framers carefully constructed a system their lives. Madison wrote in Federalist that would be practicable and desirable No. 62 of mutable policy: “It will be of lit- for their nation, built around the following tle avail to the people, that the laws are elements: made by men of their own choice, if the Debate and deliberation. The legislative laws be so voluminous that they cannot branch was called Congress–not parlia- be read, or so incoherent that they cannot ment. This was not simply a different be understood; if they be repealed or word, but reflective of a different ap- revised before they are promulgated, or proach to governance. The word congress undergo such incessant changes that no comes from the Latin word congredi, man, who knows what the law is today, meaning to come together; parliament can guess what it will be tomorrow.”4 comes from the French word parler, Madison ended Federalist No. 62 with a meaning to talk. In a parliament, the leg- warning that resonates today: “But the islators vote on a program devised by the most deplorable effect of all is that government; the majority members reflex- diminution of attachment and reverence ively vote for it, the minority members which steals into the hearts of the people, reflexively vote against. Citizens accept toward a political system which betrays the legitimacy of the actions, even if they so many marks of in½rmity, and disap- do not like them, because within four or points so many of their flattering hopes. ½ve years, they have the opportunity to No government, any more than an indi- hold the government accountable at the vidual, will long be respected without polls. The minority expresses its power being truly respectable; nor be truly by publicly questioning government respectable without possessing a certain actions and intentions during regular portion of order and stability.”5 periods of “Question Time.” The actions and functions of govern- In contrast, the American framers ment, a vibrant political process and sys- wanted a system in which representa-

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tives of citizens from disparate regions subject.6 A political system with separa- Thomas E. would come together and meet face to tion of powers and separate elections for Mann & Norman J. face, going through extended periods of House, Senate, and president could easily Ornstein debate and deliberation across factional have institutions at loggerheads. The sys- and partisan lines. This model would tem, and the culture supporting it, required enable the representatives to understand safeguards to enable the government to each other’s viewpoints and ultimately act when necessary and desirable, without reach some form of consensus in policy- getting caught in stalemate or gridlock. making. Those who lost out in the delib- Regular order. To make the processes erative process would be satis½ed that work and to foster legitimacy, legislative they had been given ample time to make and executive procedures had to be regu- their case, adding to the likelihood that larized and followed. This would in turn they would accept the legitimacy of the enable real debate by all lawmakers, decisions made, and communicate that opportunity for amendments, openness acceptance back to their constituents. Of and reasonable transparency, and some course, in contrast to a parliament, it was measure of timeliness. Executive actions, a process that made swift action extremely including crafting and implementing dif½cult. But the trade-off was that gov- regulations to carry out policy, would ernment power would be constrained also require elements of transparency, and that Americans would be more likely responsiveness to public concerns, and to accept the decisions and implement articulated purpose. Similarly, judicial them fairly and smoothly. actions would have to allow for fairness, Debate and deliberation could not be access to legal representation, opportuni- limited to governmental actors. For the ties for appeal, and a parallel lack of arbi- system to work and be perceived as legit- trariness. imate, there had to be debate and deliber- Avenues to limit and punish corruption. ation among citizens, via local and national Public con½dence in the actions of gov- “public squares,” and in campaigns, where ernment–a sense that the processes and candidates and their partisans could decisions reflect fairness and enhance the press their cases and voters could weigh common good–demands that the cancer the viewpoints and preferences of their of corruption be avoided or at least con- alternatives for representation. strained. If small groups of special inter- Divided powers competing with one another. ests or wealthy individuals can skew deci- America’s unusual system of the separa- sions in their favor, it will breed cynicism tion of powers did not offer a clean and and destroy governmental legitimacy. pure division between the executive, leg- Thus, it is necessary to ½nd ways to con- islative, and judicial branches, nor between strain the role of money in campaigns, to the House of Representatives and Senate. build transparency around campaign Instead, as constitutional scholar Edward ½nance and lobbying, to discourage “old Corwin put it, it was an “invitation to boy networks” and revolving doors, to struggle” among the branches and cham- investigate and prosecute bribery, and to bers. But that invitation to struggle, which impeach and remove government of½cials anticipated vibrant, assertive, and proud who commit high crimes and misde- branches, also was infused with the spirit of meanors, which include corrupt behavior. compromise, as eloquently analyzed by Amy Gutmann and Dennis Thompson in this On all these fronts, there is ample reason volume and in their recent book on the to be concerned about the health and

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Finding the function of America’s current political dency, can give a majority party the Common institutions. Of course, no political sys- opportunity to behave like a parliamentary Good in an Era of tem operates exactly as intended. Politics majority. But that phenomenon, which Dysfunc- and policy-making are inherently messy, occurred for Democrats in the ½rst two tional Governance occurring at the intersection of power, years of the Obama administration, money, and ambition, and leading to resulted in major policy enactments but temptations and imperfections. We have not a smoothly functioning political sys- been immersed in these processes in tem. It featured neither a widespread sense Washington for more than forty-three of legitimacy nor deep public satisfaction. years, and we have observed frequent Why? The processes of debate and governmental failures, deep tensions, deliberation were disrupted ½rst by the and challenges to the political system– Republicans’ unprecedented use of the from profound societal divisions over ½libuster and the threat of ½libuster as wars like Vietnam to the impeachment purely obstructionist tools. This deluge proceedings against two presidents. But was designed to use precious floor time those challenges were modest compared without any serious discussion of the rea- to what we see today: a level of political sons behind the ½libusters, or any real dysfunction clearly greater than at any debate on differences in philosophy or point in our lifetimes. policy. Second, when Democrats were Fundamentally, the problem stems able to pass legislation, it was against the from a mismatch between America’s united and acrimonious opposition of the political parties and its constitutional minority. America’s political culture does system. For a variety of reasons, all re- not easily accept the legitimacy of policies counted in our book It’s Even Worse Than It enacted by one party over the opposition Looks: How the American Constitutional Sys- of the other–much less the continued, tem Collided With the New Politics of Extrem- bitter unwillingness of the minority ism, the two major political parties in party to accept the need to implement the recent decades have become increasingly policies after lawful enactment. But this homogeneous and have moved toward dynamic, which accompanied the eco- ideological poles.7 Combined with the nomic stimulus package in 2009, the phenomenon of the permanent campaign, health care reform law of 2010, and the whereby political actors focus relentlessly ½nancial regulation bill in 2010, among on election concerns and not on problem- others, resulted in greater divisions and solving, the parties now behave more like public cynicism, not less. parliamentary parties than traditional, The approach of the minority party for big-tent, and pragmatic American parties. the ½rst two years of the Obama adminis- Parliamentary parties are oppositional tration was antithetical to the ethos of and vehemently adversarial, a formula that compromise to solve pressing national cannot easily work in the American polit- problems. The American Recovery and ical system. The parliamentary mindset Reinvestment Act of 2009, a plan which has been particularly striking in recent included $288 billion in tax relief, gar- years with the Republican Party, which nered not one vote from Republicans in has become, in its legislative incarnation the House. The Affordable Care Act, especially, a radical insurgent, dismissive essentially a carbon copy of the Republi- of the legitimacy of its political opposition. can alternative to the Clinton adminis- Of course, substantial majorities in the tration’s health reform plan in 1994, was House and Senate, along with the presi- uniformly opposed by Republican parti-

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sans in both houses. A bipartisan plan hence control. Despite the election, the Thomas E. to create a meaningful, congressionally dysfunction in the policy process contin- Mann & Norman J. mandated commission to deal with the ued in the succeeding lame duck session Ornstein nation’s debt problem, the Gregg/Conrad of Congress, as efforts to resolve America’s plan, was killed on a ½libuster in the Sen- ½scal problems before a January 1, 2013, ate; once President Obama endorsed the deadline were thwarted until after the plan, seven original Republican co-spon- deadline had passed. House Speaker John sors, along with Senate Republican Leader Boehner was himself undermined by Mitch McConnell, joined the ½libuster to members of his own party when he tried kill it. McConnell’s widely reported com- to devise an alternative to the president’s ment that his primary goal was to make plan. In this case, a substantial share of safe Barack Obama a one-term president–a House Republican seats were immune to classic case of the permanent campaign broader public opinion and to their own trumping problem-solving–typi½ed the Speaker, but were more sensitive to threats political dynamic. from well-½nanced challenges in their The succeeding midterm election next primaries–from the Club for Growth brought a backlash against the status and other ideological organizations–and quo–which meant divided government to incendiary comments from radio talk once Republicans captured a majority in show hosts and cable television com- the House of Representatives. As a result, mentators popular among Republican the 112th Congress had the least produc- voters in their districts. tive set of sessions in our lifetimes, enact- Tribal politics and vehement adversari- ing fewer than 250 laws, more than 40 of alism has also led to deterioration of the which were concerned with naming post regular order. In recent years, there have of½ces or other commemoratives.8 The been more and more closed rules in the major “accomplishment” of the 112th House, denying opportunities for amend- Congress was the debt limit debacle, which ments from the minority, and more uses marked the ½rst time the debt limit had of a majority tactic in the Senate called been used as a hostage to make other “½lling the amendment tree,” in which political demands. The result was not just the majority leader precludes amend- the ½rst ever downgrade in America’s ments, usually as a way to forestall or credit, but another blow to the public’s limit the impact of ½libusters. There have assessment of its government’s capacity been more omnibus bills, pooling action to act on behalf of the common good. across areas because of the increased The 2012 elections were in most respects dif½culty in getting legislation enacted; a clear expression of public will. President and fewer real conference committees to Obama earned reelection with a majority iron out differences between bills passed of popular votes, as did Democrats in by each house of Congress. There have elections for the House and in the thirty- been fewer budget resolutions adopted three contests for the Senate. But in the and appropriations bills passed; fewer House, a concentration of Democratic authorizations of programs and agencies; voters in high-density urban areas, con- and less oversight of executive action. tributing to a more ef½cient allocation of Fewer treaties have gained the two-thirds Republican voters across congressional vote needed for rati½cation in the Senate, districts, and a successful partisan gerry- leading to more executive actions. There mander in the redistricting process left have been more holds and delays in the Republicans with a majority of seats, and Senate in executive nominations. All of

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Finding the these pathologies lead to more acrimony division and polarization, not to mention Common inside Congress and between Congress politicians beholden to those whose Good in an Era of and the executive, and a diminished money put them in power. Dysfunc- sense of con½dence by Americans in Organizations such as the American tional alec Governance their political and policy institutions. Legislative Exchange Council ( ) At the same time, the administration of have used large and often anonymous elections has been politicized. Partisan contributions from corporations and legislatures have passed stringent voter individuals to write laws, including the ID laws to narrow the vote; several of voter ID laws and laws favoring the cor- these laws have been thrown out by porate sector, that many state legislatures courts for targeting or unfairly affecting have simply enacted as written, obviating minorities. In other cases, shortened vot- their independent role. And inside Con- ing hours and restrictions on early vot- gress, many lawmakers have told us about ing, in states such as Florida and Ohio, the intimidating effect that occurs when were also aimed at constraining minority a lobbyist tells them that if they do not voters. Fortunately, the 2012 election was support a bill or amendment, they might not close; had it been more like the 2000 face a multimillion dollar independent election, it is very likely that it would attack days or weeks before the election, have further reduced public trust in the which they will be unable to counter due fundamentals of democratic elections. to a lack of time or fundraising limita- The world of money and politics has tions. Such threats can result in the pas- also taken an alarming turn toward at sage of bills or amendments without any least the appearance of corruption, of money even being spent. By any reason- democracy driven by big money and able standard, this is corruption. large interests. A combination of factors –the Supreme Court’s Citizens United All of this exhibits a level of dysfunc- decision, an appeals court decision called tion in American political institutions SpeechNow, a Federal Election Commis- and processes that is dangerous to the sion that is unable or unwilling to enforce fundamental legitimacy of decisions made campaign ½nance laws, and an Internal by policy-makers, not to mention the Revenue Service that allows the opera- ability of those policy-makers to act at tion of faux social-welfare organizations all. Tribal politics at the national level has set up to influence elections but not metastasized to many states and locali- required to disclose donors–has given ties, and has affected the broader public wealthy individuals, corporations, and as well. The glue that binds Americans other entities an overweening influence together is in danger of eroding. What on elections and on the policy process. If can be done about these problems? super pacs did not determine the out- There is no easy answer, no panacea. come of the presidential election, their The problems are as much cultural as impact did expand as one moved down structural. But if structural change inside through Senate and House elections and and outside Washington cannot solve the on to state, local, and judicial elections. problems, it can ameliorate them, and In states like Kansas, North Carolina, and perhaps also begin to change the culture. Arkansas, large donations from a handful One strategy for structural change is to of individuals and groups targeted mod- accept the emergence of parliamentary- erate Republicans and replaced them with style polarized parties and try to adapt reactionary conservatives, creating more our political institutions to operate more

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effectively in that context. This is easier or pressure on politicians to come together Thomas E. said than done. Eliminating or constrain- to make a deal (Fix the Debt); the mobi- Mann & Norman J. ing the Senate ½libuster would give lization of centrists in the citizenry to cre- Ornstein uni½ed party governments a better shot ate political space for more collegial and at putting their campaign promises into collaborative policy-making (No Labels); law.9 But separate elections for the presi- the use of outside bipartisan groups to dency and Congress, as well as the mid- map policy solutions that split the differ- term congressional elections, often con- ences between the polarized parties spire to produce divided party govern- (Committee for a Responsible Federal ment, which has become more a basis of Budget); and the support of independent parliamentary opposition and obstruction presidential candidates or third parties to than consensus-building and compro- lay claim to the allegedly abandoned polit- mise. Shifting more power to the presi- ical “center” (Americans Elect). These ef- dency, which is already under way, may forts by and large seek to create a spirit of produce more timely and coherent policies compromise, an atmosphere of civility and but at a considerable cost to deliberation, mutual respect, and a focus on problem- representation, and democratic account- solving–outcomes which are indeed ability. A president is, of course, elected commendable. by the entire nation. Especially on national But we believe that these well-inten- security issues, Americans are willing to tioned efforts are limited by the strength tolerate and even embrace many unilat- and reach of party polarization, which is eral presidential actions; think Grenada buttressed not only by genuine ideologi- and Abbottabad. But America’s political cal differences among elected of½cials, culture has ingrained in the public a sense but also by like-minded citizens clustered that legitimate policies more often call in safe districts, committed activists, a for some form of broad leadership con- partisan media, a tribal culture, interest sensus and institutional buy-in. A series groups increasingly segregated by party, a of unilateral actions by the president party-based campaign funding system that would not necessarily result in public now encompasses allegedly independent acceptance of the decisions as being made groups, and a degree of parity in party for the common good. The same can be strength that turns legislating into strategic said for other forms of delegation, from political campaigning. Most of these Congress to fed-like independent agencies, efforts also suffer from an unwillingness or boards that encourage more expert and to acknowledge the striking asymmetry evidence-based decision-making that is at between today’s political parties, which least somewhat removed from the clash in the process gives a pass to obstructionist of polarized parties. Each of these ideas and dysfunctional behavior. has some limited promise, but none can A more promising strategy of reform is be the basis of constructively reconciling to bring the Republican Party back into a fundamental mismatch between parlia- the mainstream of American politics and mentary-like political parties and the policy as the conservative, not radical, American constitutional system. force. Ultimately, this is the responsibility Another approach emphasizes trying of the citizenry. Nothing is as persuasive to bring the warring parties together: by to a wayward party as a clear message reaching for consensus through increased from the voters. The 2012 election results social interaction (the House experiment and the widespread speculation of the with civility retreats); encouragement of diminishing prospects of the Republican

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Finding the coalition in presidential elections may be dates, but can cast unmarked ballots) and Common the start of that process. But it can be do not have a written excuse are subject Good in an Era of boosted and accelerated by the groups to modest ½nes, the equivalent of a park- Dysfunc- discussed above speaking clearly and ing ticket. This system moved Australian tional Governance forthrightly about the damage caused to turnout from around 55 percent, similar constructive public policy by tax pledges, to the United States, to over 90 percent.10 debt limit hostage-taking, the abuse of Most important, it changed Australian the ½libuster, climate change denial, the campaign discourse. Politicians of all demonization of government, and ideo- stripes have told us that when they know logical zealotry. The mainstream press that their own base will turn out en could also do its part by shedding its con- masse, and will be balanced by the other vention of balancing the conflicting party’s base, they shift their efforts to arguments between the two parties at the persuading voters in the middle. That cost of obscuring the reality. Voters can- means talking less about wedge issues, not do their job holding parties and rep- like abortion or guns, and more about resentatives accountable if they do not larger issues like education and jobs; and have the necessary information. Some in it means using less of the ½ery or divisive the media think it is biased or unprofes- rhetoric that excites base voters but turns sional to discuss the many manifestations off those in the middle. of our asymmetric polarization. We think Another option is to expand the use of it is simply a matter of collecting the evi- open primaries and combine them with dence and telling the truth. preference voting. Several states, includ- More signi½cant, for both parties, would ing California, now use open primaries, be to enlarge the electorate to dilute the in which all candidates from all sides run overweening influence of narrow, ideo- together; the top two ½nishers go on the logically driven partisan bases that domi- ballot for the general election. Add in nate party primaries. As a result, these preference voting, whereby voters rank bases have an outsized role in choosing their choices in order of preference candidates, who often do not reflect the (something also done in Australia), and it views of their broader constituencies; reduces the chances of an extreme candi- and as a means of heading off primary date winning a top-two ½nish because challenges, the bases can intimidate law- multiple non-extreme candidates divide makers searching for compromise or a the votes of the more populous, moder- common good into moving away from ate electorate. Another advantage of an solutions. Meanwhile, the enlarged influ- open primary is that lawmakers who cast ence of party bases pushes campaign contentious votes would be less intimi- operatives and candidates away from dated by threats of a primary challenge broader appeals and toward strategies to funded by ideological organizations if turn out one’s own base (often by scaring they knew the primary electorate would them to death), and to suppress the other be expanded beyond a small fringe base. side’s base. The politics of division trump If we could combine these changes with the politics of unity. redistricting reform, using impartial citi- To counter this set of problems, we zen commissions to draw district lines as propose adoption of the Australian system we have seen operate in states like Iowa of mandatory attendance at the polls, and California, we might get somewhere. where voters who do not show up (they Of course, the enhanced leverage that do not have to vote for speci½c candi- smaller groups possess over the sentiments

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of the larger populace has other roots, in- including vigorous debate based on com- Thomas E. cluding especially the post–Citizens United mon understanding of the facts, should be Mann & Norman J. campaign ½nance world. When groups like a priority here. One way to do so would Ornstein the Club for Growth, wealthy individuals, be to apply a rental fee to broadcasters or “social welfare” organizations funded and others for their use of the public air- by anonymous sources threaten lawmak- waves, in return for erasure of the public- ers with massive negative campaigns interest requirements that now have little sprung in the ½nal weeks of the election impact.11 season, or threaten to ½nance primary Most of these changes will be hard to opponents against them, it gives immense implement in the short run. The best we leverage to the well-heeled few against can hope for is a more tempered Republi- the viewpoints of the many. Absent a new can Party willing to do business (that is, Supreme Court, a multiple public match deliberate, negotiate, and compromise for contributions from small donors would without hostage-taking or brinksmanship) give additional leverage to the broader with their Democratic counterparts. Over population. the long haul, both political parties in the The pull toward tribal politics and away United States need to depolarize to some from a focus on the common good has degree. The parties may maintain clear also been shaped by the emergence of differences in philosophy and policy, to be tribal media, via cable television and talk sure, but they must also cultivate enough radio. The tribal media have established agreement on major issues to permit the lucrative business models built on apoca- government to work as designed. The lyptic rhetoric and divisive messages that parties must also serve an electorate that guarantee regular audiences within select shares a common vision and common demographics. These business models facts, even with sharp differences in phi- have emerged in large part because of the losophy, lifestyles, and backgrounds. dramatic technological changes that have Despite the obstacles, we must think big created hundreds or thousands of alter- about changing the structures and the native information outlets, which are culture of our partisan government and ampli½ed by the emergence of social populace; the stakes are high. media. All of this has devastated the concept of a public square, where most Americans could get their information, share a common set of facts, and debate vigorously what to do about common problems. Having real debate and deliberation at the public level, much less the governmental level, depends on sharing a common set of facts and assumptions. Re-creating a public square is a Her- culean task given the contemporary media and technology landscape. But it must be attempted. Public media would be the best venue; ½nding a way to fund a public/ private foundation that would focus on innovative ways to use public media for straightforward analysis and discourse,

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Finding the endnotes Common THOMAS E MANN Good in * Contributor Biographies: . , a Fellow of the American Academy since 1993, an Era of is the W. Averell Harriman Chair and Senior Fellow in Governance Studies at the Brookings Dysfunc- Institution. He previously served as the Director of Governmental Studies at Brookings and tional as the Executive Director of the American Political Science Association. His publications Governance include It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism (with Norman J. Ornstein, 2012), The Broken Branch: How Congress is Failing America and How to Get It Back on Track (with Norman J. Ornstein, 2006), and Party Lines: Competition, Partisanship and Congressional Redistricting (2005). NORMAN J. ORNSTEIN, a Fellow of the American Academy since 2004, is Resident Scholar at the American Enterprise Institute for Public Policy Research. He also writes the weekly column “Congress Inside Out” for Roll Call. His publications include It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism (with Thomas E. Mann, 2012), The Broken Branch: How Congress is Failing America and How to Get It Back on Track (with Thomas E. Mann, 2006), and The Permanent Campaign and Its Future (edited with Thomas E. Mann, 2000). He is chair of the Academy’s Stewarding America project. 1 Alexander Hamilton, “Federalist No. 1,” The Federalist Papers, http://thomas.loc.gov/home/ histdox/fed_01.html. 2 James Madison, “Federalist No. 46,” The Federalist Papers, http://thomas.loc.gov/home/ histdox/fed_46.html. 3 James Madison, “Federalist No. 62,” The Federalist Papers, http://thomas.loc.gov/home/ histdox/fed_62.html. 4 Ibid. 5 Ibid. 6 See Amy Gutmann and Dennis Thompson, The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It (Princeton, N.J.: Princeton University Press, 2012). 7 See Thomas E. Mann and Norman J. Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism (New York: Basic Books, 2012). 8 Amanda Terkel, “112th Congress Set To Become Most Unproductive Since 1940s,” The Huf½ngton Post, December 28, 2012, http://www.huf½ngtonpost.com/2012/12/28/congress -unproductive_n_2371387.html. 9 For more on this topic, see Norman J. Ornstein, “A Filibuster Fix,” The New York Times, August 27, 2010, http://www.aei.org/article/politics-and-public-opinion/legislative/a -½libuster-½x/. 10 Australian Electoral Commission, “Who Voted in Previous Referendums and Elections,” October 26, 2012, http://www.aec.gov.au/Elections/Australian_Electoral_History/Voter _Turnout.htm. Compulsory voting was implemented in Australia in 1924. 11 For in-depth discussion of the re-creation of a public square, see Norman J. Ornstein with John C. Fortier and Jennifer Marsico, “Creating a Public Square in a Challenging Media Age: A White Paper on the Knight Commission Report on Informing Communities: Sustaining Democracy in the Digital Age,” American Enterprise Institute White Paper, June 23, 2011, http://www.knightcomm.org/wp-content/uploads/2011/06/CreatingaPublicSquare.pdf.

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Can the Judicial Branch be a Steward in a Polarized Democracy?

Jeffrey Rosen

Abstract: At the beginning of his ½rst term as Chief Justice, John Roberts pledged to try to persuade his colleagues to consider the bipartisan legitimacy of the Court rather than their own ideological agendas. Roberts had mixed success during his ½rst years on the bench, as the Court handed down a series of high- pro½le decisions by polarized, 5-4 votes. In the health care decision, however, Roberts did precisely what he said he would do, casting a tie-breaking vote to uphold the Affordable Care Act because he thought the bipartisan legitimacy of the Court required it. But the reaction to the health care decision–which Democrats approved and Republicans did not–suggests that Roberts’s task of preserving the Court’s bipartisan legitimacy is more complicated than he may have imagined, and that his success in the future will depend on the willingness of his colleagues to embrace his vision. Given the Court’s declining approval ratings, an increase in partisan attacks on the Court, and a growing perception that the Court decides cases based on politics rather than law, the Chief Justice’s vision of the Court as a bipartisan steward is more dif½cult–and also more urgently needed–than ever.

In July 2006, at the end of his ½rst term as Chief Justice of the United States, I interviewed John G. Roberts about his vision for the Supreme Court. In the interview, Roberts expressed frustration that his colleagues were acting more like law professors than members of a collegial court. By handing down a series of 5-4 decisions along predictable ideological lines, he suggested, the Court was undermining its democratic legitimacy, making it harder for the JEFFREY ROSEN is Professor of public to respect the judiciary as an impartial insti- Law at The George Washington tution that transcends partisan politics. University Law School and Legal Roberts said he would make it his goal as Chief Affairs Editor of The New Republic. Justice to help persuade his colleagues to put the His publications include Constitu- institutional legitimacy of the Court above their tion 3.0: Freedom and Technological g own ideological agendas. He pledged to embrace as Change (edited with Benjamin a model his greatest predecessor, John Marshall, Wittes, 2011), The Supreme Court: The Personalities and Rivalries that who served as Chief Justice from 1801 to 1835 and De½ned America (2007), and The championed the idea that the judicial branch should Most Democratic Branch: How the be a nonpartisan steward in a polarized democracy. Courts Serve America (2006). In particular, Roberts said he would follow Marshall

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Can the in discouraging his colleagues from issu- accused Roberts of “distort[ing] prece- Judicial ing separate opinions. “I think that every dent” and seeking to “rewrite this Court’s Branch be a Steward in a justice should be worried about the Court prior jurisprudence, at least in practical Polarized acting as a Court and functioning as a application.”5 Democracy? Court,” he said. “[T]hey should all be Since then, the rate of 5-4 decisions has worried, when they’re writing separately, fluctuated from 17 percent in the 2007 term, about the effect on the Court as an insti- 29 percent in 2008, 18 percent in 2009, tution.”1 and 20 percent in 2010.6 But then came Roberts suggested that Marshall’s suc- the Citizens United case in 2010, which struck cess in unifying the Court was a reflection down the McCain-Feingold campaign of his temperament: he persuaded his col- ½nance reform by a 5-4 vote and earned a leagues to live together in the same board- rebuke from President Obama during his inghouse, where they discussed cases State of the Union address just a week after over a hogshead of Marshall’s Madeira. the decision was made. Roberts explained that he had embraced Against this background of partisan Marshall as a model in reaction to the “per- divisions, many observers expected the sonalization of judicial politics,” which Roberts Court to strike down the Afford- had led both the justices and court ob- able Care Act, the centerpiece of President servers in recent years to be more con- Obama’s domestic agenda, by a 5-4 vote. cerned about the consistency and coher- In the landmark health care decision in ence of the votes of individual justices 2012, however, Chief Justice Roberts did than about the legitimacy of the Court as precisely what he said he would do. He a whole. By emphasizing the bene½ts of joined the four liberal justices in holding unanimity for his colleagues, Roberts said, that the Affordable Care Act’s individual he hoped to influence the “team dynamic” mandate is justi½ed by Congress’s taxing that would lead both sides to work power, even though he joined the four toward consensus, in order to achieve a conservative justices in holding that the kind of bilateral disarmament. mandate is not justi½ed by Congress’s Roberts was effective in achieving his power to regulate interstate commerce. goal of unanimity during his ½rst, abbre- For placing the bipartisan legitimacy of the viated term, in which there were far fewer Court above his own ideological agenda, 5-4 decisions (13 percent) than in the pre- Roberts deserves praise not only from lib- vious term (30 percent).2 But the following erals but from all Americans who believe term ended in 2007 with a cacophony of that it is important for the Court to stand partisan disagreement: 33 percent of the for something larger than politics. Seven cases were decided by 5-4 votes–the years into his chief justiceship, the Su- highest percentage in at least a decade.3 preme Court ½nally became the Roberts During this term, the Court decided high- Court. pro½le disputes regarding partial birth To question the combination of legal abortion, af½rmative action, and campaign arguments that Roberts embraced would ½nance reform, and the justices sniped at be beside the point: Roberts’s decision was each other in unusually personal terms. above all an act of judicial statesmanship. Justice Antonin Scalia, for example, ac- On both the left and the right, commenta- cused Roberts of “faux judicial restraint”– tors praised his “political genius” in hand- the equivalent of ½ghting words on the ing the president the victory he sought Supreme Court.4 On the other side of the even as he laid the groundwork for restrict- ideological divide, Justice Stephen Breyer ing congressional power in the future.

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That is not to say that Roberts has rein- so has the percentage won by business Jeffrey vented himself as a liberal. He has strong interests: a study conducted for The New Rosen views that he is unwilling to compromise, York Times found that the Roberts Court and with his strategic maneuvering in the ruled for business interests 61 percent of health care case, he increased the political the time in its ½ve terms, compared with capital that will allow him to continue to 46 percent in the last ½ve years of the move the Court in a conservative direction. Rehnquist Court and 42 percent by all Marshall achieved a similar act of judicial Supreme Courts after 1953.8 jujitsu in Marbury v. Madison, when he re- Because the Supreme Court has broad fused to confront President Jefferson over control over its docket, it does not have to a question of executive privilege but laid agree to hear the most contentious con- the groundwork for expanding judicial stitutional cases. The fact that it continues power in the future. All this suggests that, to do so suggests that at least four justices as long as the composition of the Court are consistently voting to hear these cases remains balanced between ½ve conserva- despite their tendency to provoke polari- tives and four liberals, partisan divisions zation. And once the Court agrees to hear on the Roberts Court will continue. But in a potentially contentious case–such as the most highly visible cases, in which the Citizens United–the Chief Justice’s ability Court’s institutional legitimacy is at stake, to persuade his colleagues to decide that the Chief Justice may occasionally break case on narrow, consensus-based grounds ranks with his conservative colleagues. rather than broad and polarizing ones is limited by the interests, temperaments, and What can explain the, at best, mixed judicial philosophies of his fellow justices. success that Chief Justice Roberts has had At the moment, the swing justice on in reducing polarization on the Court, de- the Court is Anthony Kennedy, who prefers spite his stated ambition to do so? Part of sweeping abstractions to narrow legalisms. the explanation has to do with the Court’s As a result, decisions like Citizens United docket: as Justice Breyer once told me in a are more likely to include incendiary gen- public interview, the more constitutional eralizations about the constitutional per- cases the Court agrees to hear, the more sonhood of corporations than they were likely the justices are to divide because they when Sandra Day O’Connor, a more incre- have stronger preconceived views in con- mental and politically pragmatic judge, stitutional, as opposed to statutory, cases. controlled the balance of the Court. Breyer’s observation is supported by the But Justice Kennedy cannot be blamed fact that Roberts has had success in achiev- for the most salient symptom of polariza- ing something approaching unanimity in tion on the Roberts Court: the fact that cases affecting business interests, which are the conservative justices are more con- often decided on statutory rather than conservative than their predecessors. The stitutional grounds. About 40 percent of the Roberts Court issued conservative deci- Court’s docket is now made up of business sions 58 percent of the time in its ½rst ½ve cases, up from 30 percent in recent years, years, compared to a rate of 55 percent for and 79 percent of these cases are decided the courts led by Chief Justices Warren E. by margins of 7-2 or better.7 Roberts seems Burger and William Rehnquist, and only to have made a self-conscious effort to en- 34 percent for the Court led by Chief Jus- courage the Court to hear business cases; tice Earl Warren. The Roberts Court also and as the percentage of business cases has issued conservative opinions in 71 per- heard by the Roberts Court has grown, cent of ideologically divided cases, as op-

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Can the posed to less than half the time in the ½nal Court voted tentatively to strike down Judicial years of the Rehnquist Court.9 school segregation in Brown v. Board of Branch be a Steward in a To some degree, these differences sim- Education. Warren then famously lobbied Polarized ply reflect a change in the numbers of his skeptical colleagues and persuaded Democracy? conservative versus liberal justices: the them to make the decision unanimously. Roberts Court is not striking down laws It would be bad for the Court, he told the or overturning precedents at a higher rate last holdout, Stanley Reed, for the deci- than its predecessors. But in another sense, sion to be made over a single dissent. Out the willingness of the Roberts Court to of deference to Warren’s leadership, Jus- issue polarizing decisions by narrowly tice Reed agreed, and when Warren read divided votes reveals a decline in the cul- the decision to a spellbound courtroom, ture of bipartisanship on the Court. Thurgood Marshall, the lawyer for the To be sure, this is not a culture that has naacp Legal Defense Fund, looked up at prevailed for much of the Court’s history. Reed in astonishment and gratitude. As Chief Justice Roberts told me, “It’s Despite his reputation as the head of a sobering to think of the seventeen chief liberal court, moreover, Warren viewed justices. . . . Certainly a solid majority of the Court under his leadership as a part- them have to be characterized as failures” ner of Congress and the president, rather in terms of their ability to promote con- than an adversary, and he rarely made sensus and unanimity.10 After the comity decisions that the other branches of the of the early Marshall era, there have been federal government strenuously resisted.11 many periods when the justices have Warren himself was a former politician: divided along partisan lines and openly a former gop presidential and vice presi- squabbled, perhaps most notably in the dential candidate who had also been an period before and immediately after the elected county prosecutor, state attorney New Deal. The Court struck down the core general, and governor of California, where of Franklin Roosevelt’s recovery program he had a reputation for working with by closely divided votes and, after stepping Democrats in the state legislature. Indeed, back from the brink, continued to indulge a majority of the justices who decided in personal and ideological vendettas. Brown came from a political background Justices Hugo Black and Robert Jackson –including two former senators (Harold sniped openly at each other, and Chief Burton and Hugo Black), two former Justice Fred Vinson once nearly punched attorneys general (Tom Clark and Robert Justice Felix Frankfurter in the nose. Jackson), a former head of the Securities By the 1950s, however, Chief Justice and Exchange Commission (William O. Warren’s leadership of the Court was Douglas), and one former judge who had characterized by a sense of stewardship, also served as a senator (Sherman Minton). a belief that the common good would On the court today, by contrast, there are suffer if momentous decisions were made no former politicians and eight former along ideological lines. Under Chief Jus- federal judges. tice Vinson, the Court had tentatively voted to uphold school segregation. But Even if the current Court contained more after the case was set for reargument, politicians, it could hardly reconstruct Vinson suddenly died, prompting Justice the sense of stewardship that prevailed in Frankfurter to remark, “This is the ½rst the Warren era. That’s because the nature indication I have ever had that there is a of politics has changed dramatically since God.” After Warren replaced Vinson, the the 1950s, as both the House and the Sen-

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ate have become much more polarized It took several judicial nominations for Jeffrey and less susceptible to bipartisan com- this strategy of ideological polarization to Rosen promise. The causes of this polarization become well established: David Souter and have been extensively discussed–changes Anthony Kennedy ended up af½rming in media technology have surely contrib- Roe rather than repudiating it. But galva- uted, for example–but one of the most nized by a “No more Souters!” battle cry, salient causes is the growth of partisan President George W. Bush appointed two gerrymandering. In the 1950s, a candidate justices, Roberts and Alito, who have who won a primary election by appealing proved to be reliably conservative votes, to his base had an incentive to move to disinclined to moderate their views in the center in the general election in order order to meet their liberal colleagues to win over undecided voters in a closely halfway. Thus the ideological hardening divided district. But once partisan gerry- of the Court, like that of Congress, seems mandering increasingly ensured safe seats to be increasingly entrenched. for the winners of primary elections, can- This problem is not limited to the con- didates instead had an incentive to move servative wing of the Court. As the stakes hard left or hard right to win the primary. in judicial battles have grown, both Dem- Partisan gerrymandering explains much ocratic and Republican presidents have of the polarization of the House of Repre- put greater emphasis on ideological relia- sentatives; and because many senators now bility than they did in the 1950s, when the come from the House, it has contributed Court was a place to reward political allies to polarization in the Senate as well. (or opponents) rather than a perceived As politics in general have become battleground for the culture wars. And as more polarized since the Warren era, justices have become ideologically less judicial politics, too, have become polar- flexible, so have their law clerks. Perhaps ized. The collapse of the center in Con- the most telling sign of judicial polariza- gress has made judicial con½rmation a tion is the fact that liberal justices are now bruising process, and has guaranteed that far more likely than they were in the past those who get nominated and con½rmed to hire law clerks who worked for judges are farther than ever from the judicial appointed by Democrats, and Republican center. It is also impossible to ignore the justices are more likely than their prede- role of interest groups that sprung up in cessors to hire clerks who worked for the wake of Roe v. Wade. Roe was decided judges appointed by Republicans.12 Clerks in 1973, and by the 1980s, interest groups are vetted for their ideological reliability emerged on both sides of the political by a screening system that begins in law spectrum, dedicated to the goal of either school, where they are expected to declare overturning Roe or preserving it. These their political allegiances by joining interest groups helped turn every Supreme either the Federalist Society or the Amer- Court con½rmation hearing since the ican Constitution Society; the system unsuccessful nomination of Robert Bork continues by securing clerkship with in 1986 into a referendum on the rightness ideologically identi½ed appellate judges or wrongness of Roe. This litmus test, in who are considered feeders for Supreme turn, led presidents of both parties to Court clerkships. As a result, the prospect choose nominees for their ideological re- of clerks who will challenge their jus- liability above all: Republican nominees tices’ ideological preconceptions, rather had to commit to overturning Roe, while than encouraging them, becomes increas- Democrats had to commit to upholding it. ingly remote.

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Can the The polarization of the nominations judges than Democrats. In the 1996 presi- Judicial process and of the Court itself has led to dential campaign, for example, Pat Buchan- Branch be a Steward in a more strident attacks on judicial inde- an gave a speech called “Ending Judicial Polarized pendence in the political arena. As politi- Dictatorship” that presaged many of the Democracy? cians on both sides no longer have faith ideas of Gingrich’s white paper “Bringing in the Court to provide neutral justice, the Courts Back Under the Constitution.” they are willing to attack the justices in Buchanan’s speech was ghostwritten by political terms. The rhetorical attacks on William J. Quirk, a law professor at the judges, which became especially pro- University of South Carolina and coauthor nounced after the Terry Schiavo contro- of the 1995 book Judicial Dictatorship. In the versy in 2005, culminated in the Republi- book and in the speech, Quirk, as chan- can presidential primaries of 2011, in which neled by Buchanan, quoted from Thomas nearly all the major candidates sharply Jefferson’s writings questioning the wis- questioned judicial power. From Texas dom of judicial review and endorsed Theo- Governor Rick Perry, who called for term dore Roosevelt’s Progressive Era proposal limits for Supreme Court justices, to for- to allow the people to overrule judicial de- mer Speaker of the House Newt Gingrich, cisions by popular vote. who proposed abolishing the U.S. Court Although Gingrich quoted some of the of Appeals for the Ninth Circuit,13 the same Jeffersonian passages as Buchanan, candidates used anti-judicial rhetoric more his 2011 white paper on the judiciary shrill than we have heard since the Pro- includes some surprising sources that gressive Era. Together with Gingrich, can- were not available in 1996: articles by lib- didates Michele Bachmann, a U.S. repre- eral scholars questioning judicial suprem- sentative from Minnesota, and Herman acy. In the past decade, there has been an Cain, a business executive, went so far as explosion of books and articles by liber- to say they would sign a federal ban on als on popular constitutionalism, led by abortion in direct contradiction of Roe v. former dean of Stanford Law School Wade, intentionally provoking a constitu- Larry Kramer, whose 2004 book The People tional crisis.14 Themselves Gingrich quotes extensively During the 2012 campaign, Gingrich and sympathetically. Of course, many offered the most extreme attacks along liberal popular constitutionalists question these lines, calling on Congress to sub- judicial supremacy–that is, the claim that poena judges and force them to explain judges alone have the right to interpret their rulings under threat of arrest. But if the Constitution–without endorsing Gingrich’s judge-bashing was extreme, it Gingrich’s extreme attacks on judicial was by no means an isolated phenomenon. independence, such as his claim that the More than at any point in recent Ameri- president should ignore Supreme Court can history, judge-bashing is now an ac- decisions with which he disagrees. cepted part of both conservative and lib- Popular constitutionalism is a pro- eral discourse. If we are not careful, we vocative movement, of which I’m a card- may slide toward a future in which neither carrying member. Regardless of whether liberals nor conservatives are willing to you think the courts should thwart the accept the legitimacy of judicial opinions deeply felt constitutional views of the with which they disagree. people, it is hard to deny that on the rare Until recently, in the post–Warren Court occasions when they have done so, they era, Republican presidential candidates have often provoked popular backlashes were more extreme in their attacks on followed by judicial retreats.

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The problem is that the rise of liberal idents have criticized the Court, includ- Jeffrey popular constitutionalism has coincided ing Abraham Lincoln and Franklin Roo- Rosen with the rise of a political and media cul- sevelt, who did so during his 1937 State of ture in which partisan attacks on individ- the Union address. And Obama was care- ual judges are multiplying. As a result, ful to acknowledge “all due deference to popular constitutionalists’ criticism of separation of powers” before launching judges for second-guessing democratic into his attack; like Lincoln and Roosevelt decisions is increasingly showing up in –but unlike Gingrich–he was making the political arena–where it sometimes clear that he would obey the decision takes the form of reasonable critiques of with which he disagreed. judicial overreach, sometimes takes the But if Obama’s criticism of Citizens United form of anti-judge demagoguery, and was legitimate, others on the left have sometimes treads a ½ne line between the made more troubling arguments. “I hope two. Recently, for example, Michele Bach- Anthony Kennedy is happy,” wrote polit- mann took to RedState.com after Justice ical commentator Elie Mystal in a post at Ruth Bader Ginsburg recommended that Above the Law, a widely read legal blog. post–Hosni Mubarak Egypt use the South “[P]oint out to me a Supreme Court jus- African constitution as a model, rather tice who didn’t know the Citizens United than the much older U.S. one: “Unfortu- ruling would disproportionately favor nately, Supreme Court Justice Ruth Bader Republicans, and I’ll point to a liar.” This Ginsburg doesn’t believe in the impor- is a dramatic allegation that seems intend- tance of the U.S. Constitution,” Bachmann ed to delegitimize the Court. Kennedy’s wrote. ruling may have been naive; but in the Figuring out where to draw the line be- absence of evidence to the contrary, one tween criticism and demagoguery is not must assume it was offered in good faith. easy. Sometimes the line is clearly crossed, Some liberal politicians have been sim- as with Gingrich’s claim that “if the court ilarly extreme. In 2010, Democratic Rep- makes a fundamentally wrong decision, resentative Peter DeFazio of Oregon said the president can in fact ignore it.” In other that he was “investigating articles of im- cases, the boundary is harder to discern. peachment against Justice Roberts for per- Consider President Obama’s 2010 State juring during his Senate hearings, where of the Union address, in which he chal- he said he wouldn’t be a judicial activist lenged the Court’s Citizens United decision and he wouldn’t overturn precedents.” while six of the justices sat in front of him. Last year, Democratic Representative “With all due deference to separation of Chris Murphy of Connecticut, outraged powers,” he said, “last week the Supreme about Justice Clarence Thomas’s ties to Court reversed a century of law that I be- conservative donors, argued that “there lieve will open the floodgates for special should start to be some real investiga- interests–including foreign corporations tions as to whether [he] can continue to –to spend without limit in our elections.” serve as a justice on the Supreme Court.” Chief Justice Roberts clearly believed that Meanwhile, the most prominent critic some kind of protocol had been violated: of Citizens United has been comedian and “I think anybody can criticize the Supreme political satirist Stephen Colbert. His cen- Court,” but “there is the issue of the set- tral stunt–setting up his own super pac– ting, the circumstances, and the decorum.” has been funny and illuminating, a clever Did Obama go too far, as Roberts sug- way of highlighting the ruling’s drawbacks. gested? I don’t think so. Our greatest pres- But the limits of his approach were clear

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Can the during his recent interview with retired because, as Chief Justice Roberts has noted, Judicial Justice John Paul Stevens, who wrote the ideologically divided decisions receive far Branch be a Steward in a greatest dissent of his career in Citizens more attention than ideologically unex- Polarized United. Instead of allowing Stevens to expected or unanimous ones, a few cases like Democracy? plain his reasoning, Colbert mocked the Citizens United may create the impression 91-year-old justice and cut off his answers. among citizens that the courts are more (When asked whether he regretted any polarized than they actually are. decision in his long career, Stevens game- ly joked, “Other than this interview?”) Are ideologically divided decisions in Colbert’s attack on the Court works bril- fact harmful to the legitimacy of the Court, liantly as comedy; but by blurring the as Chief Justice Roberts has suggested? line between entertainment and consti- Possibly not: the Court’s legitimacy may tutional criticism, he is arguably both turn less on whether its decisions are bi- parodying and exacerbating the climate partisan than on whether the public gen- of judge-bashing. erally agrees with the handful of decisions Of course, judges on both the left and that catch its attention. As long as the the right have contributed to the current Roberts Court remains broadly within the situation by unnecessarily interfering in mainstream of public opinion–as it has political debates and by issuing polariz- done on questions like partial birth abor- ing decisions on the most contested question, law and order, af½rmative action, and tions of American life by ideologically even the health care mandate–then per- divided votes. But not all judges succumb haps it can issue a handful of unpopular to this temptation: in the health care decisions, such as Citizens United, without cases, two of the most respected conserva- signi½cantly diminishing its legitimacy. tive appellate court judges in the country, Nevertheless, the Court’s approval rating Jeffrey Sutton and Lawrence Silberman, seems to be falling under Chief Justice upheld the health care reform without Roberts: in Gallup polls since 2000, the hesitation, setting the stage for Chief Jus- Court’s approval rating has fluctuated tice Roberts’s career-de½ning decision to between a high of 62 percent and a low of uphold the law as well. And there are many 42 percent in 2005.16 Today that ½gure is occasions when the Supreme Court and 46 percent, the second lowest rating of the lower courts defy ideological predictions decade.17 This may be part of an overall and rule against type. Chief Justice Roberts decline in public con½dence in institutions persuaded all his colleagues to join him in more generally: the Court’s institutional a narrow, nearly unanimous decision up- con½dence rating rose throughout the holding the 2006 amendments to the 1990s from of a low of 39 percent in 1991 to Voting Rights Act, despite widespread about 50 percent in 1997, and it remained expectations that the Court would strike in that range until 2002, when it began to down the amendments on a 5-4 vote.15 plummet. By 2007, only 34 percent of those And following the lead of a bipartisan surveyed had a “great deal” of con½dence panel of the D.C. Circuit, the Supreme in the Court.18 Court unanimously rejected the position The health care decision had a small that we have no expectations of privacy but signi½cant effect on public attitudes in public and voted to ban the police from toward the Supreme Court. A study by attaching a gps device to the bottom of a Nathan Persily of Columbia Law School suspect’s car without a valid warrant and found that the Court’s historically low ap- tracking his every move for a month. But proval ratings dropped further after the

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decision was issued. The Court’s approval the Court is a polarized body. (In part, as Jeffrey rating in a New York Times/cbs poll fell political scientist Sarah Binder has dem- Rosen from 44 percent in May and early June be- onstrated, partisan controversies over fore the ruling to 41 percent in July after judicial con½rmations decrease public con- the ruling, although a Gallup poll in Sep- ½dence in the legitimacy of the courts.20) tember suggested a rebound in the Court’s Therefore, Chief Justice Roberts was cor- approval, to 49 percent. Furthermore, opin- rect to be concerned about judicial and ions about the Court became even more political polarization, but his ability to polarized after the decision, with Demo- counter this perception may be more con- crats approving the decision and Republi- strained than he expected. cans disapproving. But most polls showed Given the broader political forces con- more Americans approving of the decision tributing to the polarization of judicial pol- than disapproving, especially when they itics, there are limits to what any individ- were told that the Court had upheld the ual justice or judge can do to resurrect the law. Before and after the decision, similar sense of bipartisan stewardship that char- numbers of Americans thought the Court acterized the judiciary of previous eras. would decide the case based on their per- Nevertheless, the Court can avoid self- sonal views, rather than the law; but after inflicted wounds–from Bush v. Gore to the decision, these numbers polarized, with Citizens United–by ruling narrowly rather almost two thirds of Republicans, but only than broadly; avoiding ideologically divid- 40 percent of Democrats, saying that the ed, 5-4 opinions; and promoting consensus justices had put their personal views as much as possible. In this sense, Chief above their legal views. Persily also found Justice Roberts was correct to embrace that the Court’s approval of the Affordable Marshall’s vision of narrow, unanimous Care Act led some Democrats to change opinions as a model. And by upholding their minds about the health care man- health care reform, Roberts provided an date, leading to a small increase in ap- inspiring example of judicial bipartisan- proval of the mandate after the decision ship. Other institutional proposals to re- came down.19 duce judicial partisanship–from the elim- The reaction to the health care decision ination of life tenure and adaptation of suggests that Chief Justice Roberts’s task a ½xed eighteen-year term for Supreme of persuading the public that the Court Court justices to a requirement that ap- bases its decisions on the law rather than pellate panels include judges appointed by on partisan views is complicated by the presidents of different parties–require a fact that people tend to approve of deci- constitutional amendment or bipartisan sions with which they agree and to assume legislation and are thus unlikely to be decisions with which they disagree are adopted. Therefore, the only realistic based on the justices’ personal views rather antidote to judicial polarization may, for than on the law. Moreover, although there the moment, be judicial self-restraint. may be some correlation between public approval, institutional con½dence, and par- If the Court is unable or unwilling to ticular controversial decisions, the Court restrain itself in less visible cases, it appears to be steadily losing ground with might at least take more seriously its role the public regardless of individual deci- in educating Americans about its role in sions, a reflection of declining trust in American democracy. When the Court American institutions in general rather handed down the Brown v. Board of Educa- than simply the increased perception that tion opinion in 1954, Chief Justice Warren

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Can the insisted that it be written as plainly as has clearly increased the public’s under- Judicial possible, so that it could be printed in standing of how the Court works and has Branch be a Steward in a newspapers and understood by all Amer- given Americans the ability to engage with Polarized ican citizens. Similarly, in Cooper v. Aaron the constitutional arguments on their own Democracy? in 1958, all nine justices signed the opin- terms. If the justices are unable to respond ion in their own hands, in order to signal to Stephen Colbert’s highly effective at- the Court’s seriousness (and to enlist tacks, they can at least present their own President Eisenhower’s support) in order- deliberations to as wide an audience as ing the admission of African American possible. students to Little Rock public schools Still, cameras or audio will never sub- over the opposition of that state’s gover- stitute for the role of public educator that nor and the local school board. Brown and the Court took on in decisions like Brown Cooper did not, on their own, create pub- and Cooper: that required bipartisan stew- lic support for ending segregation, but they ardship, of unanimity across party lines, were part of a dialogue between the Court, and a recognition that the Court was the president, Congress, and the public. engaged in a task transcending partisan The Court saw itself as playing a pedagogi- politics, a task that could be explained to cal role, educating and persuading Amer- citizens of different ideologies and back- icans about basic constitutional principles. grounds. That sense of bipartisan steward- In the end, what paved the way for greater ship, which Chief Justice Roberts resurrect- public acceptance of the societal changes ed in the health care decision, is embat- heralded by Brown and Cooper was politi- tled on the Court–and Roberts cannot cal activism that transformed social norms: preserve it on his own. All of his colleagues in particular, the civil rights movement, have to decide whether they want to tran- followed by guidelines from the Depart- scend their differences and present a united ment of Health and Human Services with- face to a divided nation, or whether they holding federal funds from schools that are more interested in being right than failed to achieve integration. But the civil being bipartisan. Roberts has offered his rights movement and the administrative vision of leadership; it remains to be seen regulations that followed were them- whether the other justices will follow. selves galvanized by the Brown decision and the educative role that it adopted. Might the Court reclaim this public education function today? The justices’ resistance to the introduction of cameras in the courtroom suggests that they may be more concerned about enhancing their own reputations (by maintaining a sense of mystery and authority) rather than educating the public. On the other hand, Justice Scalia has argued plausibly that cameras might decrease public understanding because individual clips would be taken out of context and played on the evening news. On the other hand, the Court’s decision to post audio ½les and same-day transcripts of oral arguments

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endnotes Jeffrey Rosen 1 Jeffrey Rosen, “Roberts’s Rules,” The Atlantic, January/February 2007, http://www.theatlantic .com/magazine/archive/2007/01/roberts-apos-s-rules/5559/. 2 http://www.scotusblog.com/archives/EndofTermAnalysis.pdf. 3 http://www.scotusblog.com/archives/SuperStatPack.pdf. 4 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 498–499 n.7 (2007) (Scalia, J., concurring). 5 See, for example, Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 803 (2007) (Breyer, J., dissenting). 6 http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/SB_OT10_stat_pack_½nal.pdf. 7 See Michael Orey, “The Supreme Court: Open for Business,” Businessweek, July 9, 2007, 30; cited in Jeffrey Rosen, “Symposium Keynote Address: Big Business and the Roberts Court,” Santa Clara Law Review 49 (2009): 997. 8 Adam Liptak, “Justices Offer Receptive Ear to Business Interests,” The New York Times, Decem- ber 19, 2010, http://www.nytimes.com/2010/12/19/us/19roberts.html?pagewanted=all. 9 Adam Liptak, “Court Under Roberts is Most Conservative in Decades,” The New York Times, July 25, 2010, http://www.nytimes.com/2010/07/25/us/25roberts.html?pagewanted=all. 10 Rosen, “Roberts’s Rules.” 11 See generally, Lucas A. Powe, Jr., The Warren Court and American Politics (Cambridge, Mass.: Belknap Press of Harvard University Press, 2000). 12 Adam Liptak, “A Sign of the Court’s Polarization: Choice of Clerks,” The New York Times, September 7, 2010, http://www.nytimes.com/2010/09/07/us/politics/07clerks.html?page wanted=all. 13 Adam Liptak and Michael D. Shear, “Republicans Turn Judicial Power into a Campaign Issue,” The New York Times, October 24, 2011, http://www.nytimes.com/2011/10/24/us/ politics/republicans-turn-judicial-power-into-a-campaign-issue.html?pagewanted=all. 14 Jeffrey Rosen, “Boston Legal: The Law According to Mitt,” The New Republic, November 17, 2011, http://www.tnr.com/article/politics/magazine/96708/boston-legal-constitution -romney. 15 http://www.supremecourt.gov/opinions/08pdf/08-322.pdf. 16 Benjamin Wittes, “The Supreme Court’s Looming Legitimacy Crisis,” June 25, 2007, http:// www.brookings.edu/opinions/2007/0625governance_wittes.aspx. 17 Joel Connelly, “Supremes’ Approval Rating Takes a Dip,” October 4, 2011, http://blog .seattlepi.com/seattlepolitics/2011/10/04/supremes-approval-rating-takes-a-dip/. 18 Wittes, “The Supreme Court’s Looming Legitimacy Crisis.” 19 http://blog.oup.com/wp-content/uploads/2012/09/Persily-Campbell-health-care-case-in -public-mind.pdf. 20 Sarah Binder, “Consequences for the Courts: Polarized Politics and the Judicial Branch,” in Red and Blue Nation? vol. 2, Consequences and Correction of America’s Polarized Politics, ed. Pietro S. Nivola and David W. Brady (Washington, D.C.: Brookings Institution Press, 2008), 115–124.

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The Supreme Court in the 21st Century

Geoffrey R. Stone

Abstract: How does the Supreme Court serve the “common good”? What is the Court’s responsibility, as the ultimate interpreter of the Constitution, in our constitutional system of government? This essay explores that question with an eye on the recent performance of the Court in highly controversial and divisive cases. What explains the Court’s decisions in cases involving such issues as campaign ½nance regulation, gun control, abortion, af½rmative action, health care reform, voting rights, and even the 2000 presidential election? This essay argues that there is a right and a wrong way for the Supreme Court to interpret and apply the Constitution; and whereas the Warren Court properly understood its responsibilities, the Court in more recent decades has adopted a less legitimate and more troubling mode of constitutional interpretation.

The Supreme Court plays an essential role in the American constitutional system. As John Roberts stated in his con½rmation hearings, the role of the Court is to serve as a neutral and detached “umpire” when it enforces the fundamental guarantees of our Constitution.1 To ful½ll that essential role, the Court must have the con½dence and respect of the Amer- ican people. This is a tricky business because when the Court enforces the guarantees of our Consti- GEOFFREY R. STONE, a Fellow of tution, it usually frustrates the will of the majority. the American Academy since 1990, That is, when it holds a law unconstitutional it is in is the Edward H. Levi Distin- effect telling the majority of citizens who supported guished Service Professor of Law that law that they cannot do what they want to do. at the University of Chicago Law This is not the way to be popular. School. His books include Top Secret: When Our Government Keeps Nonetheless, the Supreme Court has consistently Us in the Dark (2007), War and Lib- been the most respected of the three branches of the erty: An American Dilemma, 1790 to federal government. This is so because, although the Present (2007), and Perilous the Court often frustrates the short-term preferences Times: Free Speech in Wartime from of the majority, the public generally seems to under- the Sedition Act of 1798 to the War on stand that it is acting in a principled manner that Terrorism (2004). He is working on will serve the long-term interests of the nation. a new book, Sexing the Constitution, which will explore the historical Since 2000, however, the percentage of Americans evolution in Western culture of who approve of the way the Supreme Court han- the intersection of sex, religion, dles its responsibilities has fallen from 62 percent and law. to only 46 percent. Indeed, in recent years the

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Court’s approval rating has fallen to its the opposing-party senators opposed con- Geoffrey R. lowest level since polling began in 1972.2 ½rmation. Since 2000, 74 percent of the Stone In this essay, I explore three possible opposing-party’s senators voted against reasons for the decline in public respect con½rmation. This is an extraordinary for the Supreme Court: 1) the politiciza- shift. In the four con½rmations since tion of the con½rmation process; 2) the 2000, 67 percent of Democrats voted polarization and apparent politicization against Roberts and Alito, and 81 percent of the justices; and 3) the Court’s current of Republicans voted against Sotomayor approach to constitutional interpretation. and Kagan. Even more striking, the four most recent nominees were viewed at the Conventional wisdom says that the con- time of con½rmation as more moderate ½rmation process for Supreme Court jus- on average than the eighteen nominees tices is now terribly broken. The prevailing put forth between 1964 and 2000. Thus assumption is that the process has become the dramatic change in voting since 2000 so polarized and so politicized that nom- cannot be explained by any shift in the inees feel they must mask their views from perceived ideologies of the nominees members of the Senate in a way that makes themselves.6 informed consideration impossible. As one Several factors seem to have contributed commentator has observed, many “Amer- to this much more polarized approach to icans would like to think the manner in Supreme Court con½rmations. First, the which people become justices on the Court’s most controversial decision in the Supreme Court is governed by merit and years leading up to this era–Bush v. Gore7 objectivity,” but “recent events suggest –undoubtedly highlighted the ideological something very different.”3 Supreme Court inclinations of the justices in both the nominations, it is said, “have become pub- public and political consciousness. In that lic pitched battles involving partisans, decision, there was a bitter divide between ideological groups, single-issue groups, and the more conservative and more liberal the press.”4 The common refrain is that justices, with dramatic consequences for “if only we could get back to the way we the nation, at a moment when Americans did things in the past, the process would were paying close attention to the Court. be so much better.” The role of ideology could not have been This turns out to be mostly correct. In clearer, and it was missed by neither the one sense, though, the assessment is public nor their elected representatives. wrong. It is usually assumed that the Second, historically the con½rmation change in the Supreme Court con½rma- process was a largely non-public event. tion process began with the Robert Bork The press has always covered the most con½rmation battle in 1987, but in fact it controversial nominees, such as Alexander did not occur until after 2000.5 The change, Wolcott in 1811, Louis Brandeis in 1916, though, has been dramatic. Between 1964 and Hugo Black in 1937; but apart from and 2000, only 27 percent of eighteen such rare exceptions, the public was Supreme Court nominees received twenty largely unaware of–and uninterested in– or more negative votes in the Senate. In the details of nomination and con½rma- the four con½rmations since 2000, 100 tion. The process therefore had little percent of the nominees (Roberts, Alito, political salience. Today, however, the Sotomayor, and Kagan) received more news media cover Supreme Court nomi- than twenty negative votes. Moreover, be- nees as they do presidential candidates; tween 1964 and 2000, only 30 percent of and senators, presidents, and nominees

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The are all acutely aware that television cam- As public law expert Richard Pildes reports, Supreme eras are beaming their faces and words the political parties are now “internally Court in the 21st to millions of Americans. People eagerly more uni½ed and coherent, and externally Century await the opportunity to watch the hear- more distant from each other, than any- ings “to see whether the nominee sur- time over the last 100 years.” Indeed, “in vives.” As legal scholar Chris Eisgruber 1970, moderates constituted 41 percent of has observed, the hearings now take on the Senate; today, they are 5 percent.” the aura of “a high-stakes reality show.”8 The center “has all but disappeared.”10 This attention has dramatically increased In the con½rmation process, this has sig- the political salience of the process. ni½cantly magni½ed the effects of the Third, the politicization of the con½r- other three factors. mation process has been made even more The impact of these four factors seems dramatic by the increasingly aggressive clear. With a heightened public awareness involvement of interest groups. Although of the central role the Supreme Court plays such groups have long played a role in the in resolving fundamental and often highly process, there has been a dramatic in- controversial conflicts in American soci- crease in interest-group participation. An ety, a greater public appreciation of the average of 1.6 interest groups participated political/ideological nature of the Court’s in the hearings for the nine nominees be- decision-making process, effective mech- tween 1952 and 1967; the average rose to anisms–such as cable news programs, 8.8 for the nine nominees between 1968 radio talk shows, the Internet, and ener- and 1983; and it rose again to 27.6 for the getic interest groups–to bring public and eight nominees between 1984 and 1994. political pressure to bear on senators, and The average number of interest groups a political environment that is increas- has skyrocketed to almost one hundred ingly polarized for reasons unrelated to for the four nominees since 2000.9 Not the con½rmation process, the traditional only do these groups attempt directly to understanding that senators ordinarily persuade senators to their point of view, should err on the side of deference to rea- but they often carry out aggressive public sonable presidential nominations has relations campaigns to gather public sup- fallen by the boards. The consequence is port by portraying nominees as either a highly politicized and polarized con½r- harmful or helpful to the political goals of mation process unlike anything we have their members, which may involve such seen before. divisive issues as abortion, af½rmative action, law enforcement, capital punishment, It is often thought that, as in Bush v. Gore, gun control, state’s rights, women’s rights, the justices generally vote their ideologi- immigration, and the rights of gays and cal convictions. That is, the “conservative” lesbians. Senators pay careful attention justices vote for politically conservative to these groups because they communi- positions, and the “liberal” justices vote for cate directly with their constituents, gen- politically liberal positions. The assump- erate substantial contributions for polit- tion, moreover, is that they do this not ical campaigns, and can help make or because of principled differences in their break a bid for reelection. A senator who overall judicial philosophies, but because ignores these groups does so at his peril. they are permitting their ideological pref- Fourth, the more general polarization erence to trump whatever principled ap- of the political process has had a substan- proach to constitutional interpretation tial impact on the con½rmation process. they purport to hold. Is this a fair criticism?

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Before going any further, I should note property, the death penalty, the free speech Geoffrey R. that I am using the terms conservative and rights of corporations, freedom of religion, Stone liberal rather loosely. In fact, as federal the rights of gays and lesbians, and the judge Richard Posner, legal scholar Lee commerce clause.12 Epstein, and economist William Landes The moderately liberal justices voted for have demonstrated, relative to all justices what would generally be understood as who have served in the past seventy-½ve the more liberal political position 97 per- years, recent “conservative” justices (espe- cent of the time (seventy of seventy-two cially Rehnquist, Scalia, Thomas, Roberts, votes; Justice Stevens joined the conser- and Alito) have been very conservative. vative justices in one of the Guantánamo Indeed, they are the ½ve most conservative cases and in a voting case). The very con- justices to serve on the Supreme Court in servative justices voted for the politically three-quarters of a century. On the other conservative position 98 percent of the hand, the recent “liberal” justices (Stevens, time (½fty-nine of sixty votes; Chief Jus- Souter, Ginsburg, Breyer, Sotomayor, and tice Roberts broke ranks in the Affordable Kagan) have been only moderately liberal. Care Act decision). Based on these votes, They are nowhere near as liberal as jus- it is easy to see why both the public and tices like Brennan, Warren, Marshall, and members of the Senate perceive the jus- Douglas. They have not been nearly as tices as both ideological and polarized. extreme in their liberalism as recent con- The all-important swing justices, by the servative justices have been in their con- way, voted two-thirds of the time with the servatism. Moreover, the two so-called very conservative justices.13 swing justices in recent years (O’Connor With this information, it is easy to see and Kennedy) have in fact been quite why the public is suspicious of the jus- conservative, though not as extreme in tices and why the stakes in the nomina- their conservatism as Rehnquist, Scalia, tion and con½rmation process are so high. Thomas, Roberts, and Alito.11 Indeed, if one more moderately liberal In the rest of this discussion I will there- justice had been on the Court since 2000 fore refer to the “very conservative” justices in lieu of one of the very conservative jus- (Rehnquist, Scalia, Thomas, Roberts, and tices, the moderately liberal justices Alito), the “moderately conservative” would have won seventeen of the eighteen swing justices (O’Connor and Kennedy), cases.14 If one more very conservative and the “moderately liberal” justices justice had been on the Court in place of (Stevens, Souter, Ginsburg, Breyer, Soto- one of the moderately liberal justices, the mayor, and Kagan). How, then, have these very conservative justices would have justices actually voted? To get a handle won sixteen of the eighteen cases.15 on this question, I asked several colleagues Citizens United v. Federal Election Commis- (without telling them why I was asking) sion16 is a useful example of how the con- to identify the most important constitu- servative justices have played fast-and- tional decisions since 2000. They came loose with the law in order to reach the up with a list of eighteen cases, ranging outcomes they prefer. In Citizens United, across a broad spectrum of constitutional the Court, in a 5-4 decision, held uncon- issues involving, for example, the 2000 stitutional a key provision of the Bipartisan presidential election, gun control, voter Campaign Reform Act of 2002 (bcra).17 disenfranchisement, af½rmative action, The speci½c provision the Court invali- abortion, habeas corpus, due process for dated limited the amount of money that terrorism suspects, takings of private corporations could spend in certain cir-

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The cumstances to support or oppose the “the State has articulated a suf½ciently Supreme election of named candidates for federal compelling rationale to support its restric- Court in 18 the 21st of½ce. tion on independent expenditures by cor- Century To understand Citizens United, it is ½rst porations.”24 necessary to establish the constitutional The Court adhered to this view for the context of the decision. In 1976, in Buckley v. next twenty years. In 2003, for example, Valeo,19 the Supreme Court struck down in McConnell v. Federal Election Commission,25 several provisions of the Federal Election the Court upheld the same provision of Campaign Act of 1971.20 In a key part of the bcra that it later invalidated in Citizens the decision, the Court held in Buckley that United. In McConnell, in a 5-4 decision, the the government cannot constitutionally Court followed Austin and held that the limit the amount individuals can spend to provision of the 2002 legislation that lim- support or oppose the election of politi- ited the amount that corporations could cal candidates. The Court reasoned that spend in the political process did not vio- because expenditure limitations “limit po- late the First Amendment. The Court re- litical expression ‘at the core of our elec- af½rmed that government’s “power to pro- toral process and of the First Amendment hibit corporations . . . from using funds in freedoms,’” they cannot withstand First their treasuries to ½nance advertisements Amendment scrutiny.21 expressly advocating the election or defeat The question later arose whether cor- of candidates . . . has been ½rmly embedded porations have the same First Amendment in our law.”26 rights as individuals to spend unlimited In the seven years between McConnell amounts of money in the electoral pro- and Citizens United, it became clear that cess. In 1990, the Supreme Court held in the positions of the justices on this ques- Austin v. Michigan Chamber of Commerce22 tion were ½xed in stone. Beginning with that corporations do not have the same Austin, Justices Scalia, Kennedy, and right in this respect as individuals. In a Thomas voted consistently, in dissent, to 6-3 decision, the Court upheld a Michigan protect what they saw as the First Amend- statute that limited the amount that cor- ment rights of corporations, without re- porations could spend to support or oppose gard to precedent; and after joining the the election of candidates for state of½ce. Court in 2005 and 2006, respectively, The Court explained that “the unique legal Chief Justice Roberts and Justice Alito and economic characteristics of corpora- quickly made clear that they too were in tions”–such as “limited liability, perpet- that camp.27 As legal expert Lillian BeVier ual life, and favorable treatment of the astutely observed at the time, “[D]ebate accumulation and distribution of assets”– on these issues has reached an impasse. . . . enable corporations “to use ‘resources The chasm that separates the Justices from amassed in the economic marketplace’ to one another appears unbridgeable.”28 obtain ‘an unfair advantage in the politi- Sure enough, in Citizens United, the Court cal marketplace.’”23 Noting that the act overruled Austin and McConnell in a 5-4 was designed to deal with “the corrosive decision. It held that corporations, like and distorting effects of immense aggre- individuals, have a First Amendment right gations of wealth that are accumulated to spend unlimited funds in order to elect with the help of the corporate form and or defeat particular political candidates. that have little or no correlation to the The ½ve justices in the majority were public’s support for the corporation’s po- Roberts, Scalia, Kennedy, Thomas, and litical ideas,” the Court concluded that Alito. The only “relevant” change in the

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seven years since McConnell was that the vitality of Austin and McConnell.32 Tradi- Geoffrey R. moderately conservative Justice O’Connor tionally, conservatives have insisted that Stone (who had voted with the majority in courts should resolve constitutional con- McConnell) had been replaced by the very troversies on narrow rather than broad conservative Justice Alito.29 grounds and should avoiding holding Justice Kennedy, who wrote the opinion laws unconstitutional unless there is no of the Court in Citizens United, reiterated the other way to dispose of the case. In Citi- arguments of the dissenters in the earlier zens United, however, the conservative jus- cases, declaring, for example, that even tices eschewed the narrow grounds of though corporations are granted special decision that were available to it, and powers and prerogatives to enable them to actually ordered the parties to ½le briefs function ef½ciently as economic entities, on the much broader and more contro- “‘[i]t is rudimentary that the State cannot versial question of whether Austin and exact as the price of those special advan- McConnell should be overruled. Because tages the forfeiture of First Amendment this sort of aggressive overreaching has rights,’”30 and that corporations should traditionally been disdained by conserva- not “be treated differently under the First tives, the Court’s performance in Citizens Amendment simply because [they] are not United was fair and easy game for those ‘natural persons.’”31 who condemned the majority’s evident Citizens United has been criticized on a eagerness to reach out unnecessarily to variety of grounds. The most interesting pronounce the limit on corporate spend- criticisms suggest not only that the ma- ing unconstitutional. jority was wrong on the merits of the First Third, there is the question of judicial Amendment issue, but also that the con- activism versus judicial restraint. This is, servative justices behaved disingenuously for me, the most intriguing facet of the in their handling of the case. There are at decision in Citizens United. How should least three reasons for this accusation. courts decide how much deference/how First, there is the issue of precedent. In much scrutiny is appropriate in consider- theory, at least, “conservative” judges claim ing the constitutionality of government to be respectful of stare decisis. Indeed, that action? That is the central question of is part of what it has traditionally meant American constitutional law, at least in- to be conservative. Yet in this instance sofar as courts are concerned. In the last there were two de½nitive decisions of the half-century, conservatives have derided Supreme Court in the twenty years leading judicial activism as illegitimate and called up to Citizens United–Austin and McConnell for a more restrained exercise of the –in which the Court had held unequivo- power of judicial review. In Citizens United, cally that government can constitutional- however, the conservative majority em- ly limit corporate political expenditures. braced an aggressively activist approach, The plain and simple fact is that nothing disregarding an effort by our nation’s had changed in the intervening years– elected of½cials to bring order to what except the makeup of the Court itself. they regarded as a dangerously out-of- Second, there is the issue of judicial control electoral process. The stakes were overreaching. Both Citizens United and clearly high, and members of Congress the solicitor general offered the Court and the president (Bush II, by the way) several ways to resolve the case in favor of obviously have a high degree of expertise Citizens United without requiring the in such matters. Why, then, didn’t the Court even to consider the continuing conservative justices exercise restraint

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The and defer to the judgment of our elected activism is wrong, but because Lochner was Supreme leaders? This is the question to which I not an appropriate situation for judicial Court in the 21st now turn. activism. It was this view that Chief Jus- Century tice Harlan Fiske Stone set forth in 1938 in It is often assumed that liberals like judi- his famous footnote #4 in United States v. cial activism and conservatives like judicial Carolene Products Co.37 While burying the restraint. It is not so simple. For one thing, doctrine of economic substantive due pro- judicial activism and judicial restraint do cess, Stone at the same time suggested that not necessarily correlate with liberal and “there may be narrower scope for opera- conservative outcomes. For example, on tion of the presumption of constitution- such questions as the constitutionality of ality when legislation . . . restricts those af½rmative action, regulations of commer- political processes which can ordinarily cial advertising, gun control laws, and cam- be expected to bring about repeal of paign ½nance regulation, judicial restraint undesirable legislation” or when it dis- would lead to politically “liberal” results criminates “against discrete and insular (upholding the laws) and judicial activism minorities” in circumstances in which it would produce politically “conservative” is reasonable to infer that prejudice, in- results (invalidating the laws). Not sur- tolerance, or indifference might seriously prisingly, then, at some times in our his- have curtailed “the operation of those po- tory judicial activism has been embraced litical processes ordinarily to be relied by conservatives and criticized by liberals, upon to protect minorities.”38 and at other times judicial activism has This conception of selective judicial activ- been embraced by liberals and criticized ism is deeply rooted in the original under- by conservatives. standing of the essential purpose of judi- In the early years of the twentieth cen- cial review in our system of constitutional tury, for example, conservative justices governance. The framers of our Constitu- employed an aggressive form of judicial tion wrestled with the problem of how to activism to invalidate a broad range of cabin the dangers of overbearing and intol- progressive legislation. During the Lochner erant majorities. For example, those who era,33 which lasted for some forty years,34 initially opposed a bill of rights argued that the Supreme Court invoked “economic a list of rights would serve little, if any, substantive due process” in the name of practical purpose, for in a self-governing protecting the “liberty of contract” to in- society the majority could simply disregard validate more than 150 state and federal whatever rights might be “guaranteed” in laws regulating such matters as child the Constitution. In the face of strenuous labor, the insurance industry, banks, min- objections from the Anti-Federalists dur- imum wages, maximum hours, the rights ing the rati½cation debates, however, it of labor, and the transportation industry.35 became necessary to reconsider the issue. Progressive critics of the Lochner-era juris- On December 20, 1787, Thomas Jefferson prudence, like Felix Frankfurter, concluded wrote James Madison from Paris that, after that judicial activism was presumptively reviewing the proposed Constitution, illegitimate and unwarranted. The only he regretted “the omission of a bill of principled stance for a responsible jus- rights.”39 In response, Madison expressed tice, he argued, was judicial restraint.36 doubt that a bill of rights would “provide Other critics of Lochner, however, took any check on the passions and interests of away a very different lesson. In their view, the popular majorities.” He maintained Lochner was wrong not because judicial that “experience proves the inef½cacy of

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a bill of rights on those occasions when ple themselves.” Judges, he insisted, have Geoffrey R. its controul is most needed. Repeated a duty to resist invasions of constitutional Stone violations of these parchment barriers have rights even if they are “instigated by the been committed by overbearing majori- major voice of the community.”44 ties in every State” that already had a bill It was this “originalist” conception of of rights. In such circumstances, he asked, judicial review that informed the Warren “What use . . . can a bill of rights serve in Court’s selective judicial activism, as well popular Governments?”40 as the approach of the moderate liberals Jefferson replied, “Your thoughts on the who are currently on the Court. As a rule, subject of the Declaration of rights” fail the Warren Court gave a great deal of def- to address one consideration “which has erence to the elected branches of govern- great weight with me, the legal check which ment–except when such deference would it puts into the hands of the judiciary. effectively abdicate the responsibility the This is a body, which if rendered indepen- framers had imposed upon the judiciary dent . . . merits great con½dence for their to serve as an essential check against the learning and integrity.”41 This exchange inherent dangers of democratic majori- apparently carried some weight with Mad- tarianism. They therefore invoked activist ison. On June 8, 1789, Madison proposed judicial review primarily in two situations: a bill of rights to the House of Represen- 1) when the governing majority system- tatives. At the outset, he reminded his col- atically disregarded the interests of a his- leagues that “the greatest danger” to liberty torically underrepresented group (such was found “in the body of the people, as blacks, ethnic minorities, political dis- operating by the majority against the sidents, religious dissenters, and persons minority.”42 Echoing Jefferson’s letter, he accused of crime); and 2) when there was stated the position for judicial review, con- a risk that a governing majority was using tending that if these rights are “incorpo- its authority to stifle its critics, entrench rated into the constitution, independent the political status quo, and/or perpetu- tribunals of justice will consider themselves ate its own political power. . . . the guardians of those rights; they will Consider, for example, Brown v. Board of be an impenetrable bulwark against every Education,45 which prohibited racial seg- assumption of power in the legislative or regation in public schools, Loving v. Vir- executive; they will be naturally led to resist ginia,46 which invalidated laws forbidding every encroachment upon rights expressly interracial marriage, Engel v. Vitale,47 which stipulated for in the constitution by the prohibited school prayer, Goldberg v. Kelly,48 declaration of rights.”43 which guaranteed a hearing before an This reliance on judges, whose lifetime individual’s welfare bene½ts could be ter- tenure would hopefully insulate them from minated, Reynolds v. Sims,49 which guar- the need to curry favor with the govern- anteed “one person, one vote,” Miranda v. ing majority, was central to the framers’ Arizona,50 which gave effect to the prohi- understanding. Alexander Hamilton, for bition of compelled self-incrimination, example, strongly endorsed judicial review Gideon v. Wainwright,51 which guaranteed as “obvious and uncontroversial.” The all persons accused of crime the right to “independence of the judges,” he rea- effective assistance of counsel, New York soned, is “requisite to guard the constitu- Times v. Sullivan,52 which limited the abil- tion and the rights of individuals from ity of public of½cials to use libel actions to the effects of those ill humours which . . . silence their critics, and Elfbrandt v. Russell,53 sometimes disseminate among the peo- which protected the First Amendment

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The rights of members of the Communist Antonin Scalia, Anthony Kennedy, Clar- Supreme Party. Each of these decisions clearly ence Thomas, and Samuel Alito are not Court in the 21st reflected the central purpose of judicial committed to judicial restraint. Rather, Century review–to guard against the distinctive like the liberal justices of the Warren dangers of majoritarian abuse. Court, they employ a form of selective judi- As I noted at the outset of this essay, cial activism. But these justices would have anti-majoritarian decisions generally do joined few, if any, of the Warren Court not sit well with the majority. It is there- decisions I listed earlier. Nonetheless, and fore hardly surprising that this jurispru- despite the conservative rhetoric about dence excited biting criticism, especially “strict constructionism,” “originalism,” in the political arena. By the late 1960s, “judicial restraint,” and “call[ing] balls Richard Nixon was able to make the and strikes,”54 the current conservative Court’s “judicial activism” a signi½cant justices are just as activist as their liberal issue in national politics. Within a few predecessors–but in a wholly different short years, Nixon appointed Warren set of cases. Burger, Harry Blackmun, Lewis Powell, In a series of aggressively activist deci- and William Rehnquist to the Court. sions, the current conservative justices have Although these justices varied over time held unconstitutional af½rmative action in their adherence to “judicial restraint,” programs,55 gun control regulations,56 their presence soon transformed the Court, limitations on the authority of corpora- leaving the vision of the Warren Court in tions to spend at will in the political pro- its wake. cess,57 restrictions on commercial adver- The change in the Court’s understanding tising,58 laws prohibiting groups like the of its role since 1968 has been dramatic. Boy Scouts from discriminating on the In the twenty-½ve years between 1968 and basis of sexual orientation,59 policies of the 1993, Republican presidents made twelve state of Florida relating to the outcome of consecutive appointments to the Court. the 2000 presidential election,60 and fed- The movement to the right continued eral legislation regulating guns, age dis- under George W. Bush, who appointed crimination, the environment, and vio- the very conservative Samuel Alito to re- lence against women.61 The challenge is to place the moderately conservative Sandra ½gure out what theory of judicial review Day O’Connor. But that still leaves the or constitutional interpretation drives question: what does “conservative” mean this particular form of activism. in the modern era? This brings me back to Citizens United. If Conservative justices and politicians conservative justices adhered to the judi- repeat endlessly that, in their interpreta- cial restraint conception of judicial review, tion and application of the Constitution, they would surely have upheld the law at they are strict constructionists who apply issue in Citizens United. Only by invoking rather than invent the law. They are judi- a high degree of judicial scrutiny and ag- cially restrained. They just call balls and gressively second-guessing the judgments strikes. But Citizens United, and a host of of Congress and the president could the other similarly activist decisions in recent conservative justices justify their position years, cannot be explained or justi½ed with in Citizens United. How, then, could the any of these clichés. What, then, is going ½ve conservative justices have invalidat- on in these cases? ed the challenged law in Citizens United? To answer that question, we need to The answer is simple. John Roberts, step back and do the same thing with the

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Rehnquist and Roberts Courts that I sug- thoughtfully interpreting and applying Geoffrey R. gested earlier about the Warren Court. the U.S. Constitution in a disinterested and Stone That is, we should look at the outcomes principled manner. The American repub- and identify those cases in which the lic is deeply dependent on the con½dence conservative justices tend to be judicially of our citizens in the Constitution and in restrained and deferential and those in the rule of law. When justices undermine which they take an activist approach. If we that con½dence, they betray their most do that, we discover two obvious patterns. fundamental responsibility and endanger First, the conservative justices have gen- the common good. erally been very deferential in cases in which minorities (whether African Ameri- cans, Hispanics, gays and lesbians, women, religious minorities, or persons accused of crime) challenge the constitutionality of government action that disadvantages them.62 But these are precisely the cases in which activist judicial scrutiny is most appropriate. Second, these same justices have generally been most activist in protecting the interests of corporations, commercial advertisers, gun owners, whites challenging af½rmative action programs, the Boy Scouts when that organization claims a First Amendment right to exclude gay scoutmasters, and George W. Bush in the 2000 presidential election. These patterns cannot plausibly be explained by any principled theory of constitutional interpretation. Rather, to paraphrase Justice Frankfurter’s critique of an earlier generation’s judicial activism, the selective activism of the current conservative majority seems to be born out of “their prejudices and their respective pasts and self-conscious desires.”63 These decisions reflect not a principled approach to constitutional interpretation, but a set of personal and ideological preferences about such matters as guns, corporations, gays, commercial activity, religion, and George W. Bush. This is, to say the least, a worrisome state of affairs. It is no wonder that the Supreme Court has fallen, and fallen hard, in the eyes of the American people. A central responsibility of the Supreme Court is to promote the common good by

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The endnotes Supreme 1 Court in Hearings on the Nomination of John G. Roberts to be Chief Justice of the Supreme Court of the United the 21st States Before the Committee on the Judiciary, 109th Cong., 1st Sess. 56 (2005) (testimony of John Century G. Roberts). 2 See http://www.gallup.com/poll/4732/supreme-court.aspx. 3 Richard Davis, Electing Justice: Fixing the Supreme Court Nomination Process (New York: Oxford University Press, 2005), 4. 4 Ibid. 5 See Geoffrey R. Stone, “Understanding Supreme Court Con½rmations,” Supreme Court Review (2010): 415–440. 6 Ibid., 421–425. 7 531 U.S. 98 (2000). 8 Christopher L. Eisgruber, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton, N.J.: Princeton University Press, 2007), 151–152. 9 See Stone, “Understanding Supreme Court Con½rmations,” 451. 10 Richard H. Pildes, “Why the Center Does Not Hold: The Causes of Hyperpolarized Democ- racy in America,” California Law Review 68 (2011): 277. 11 See Lee Epstein, William M. Landes, and Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Cambridge, Mass.: Harvard University Press, 2013), chap. 3. 12 See United States v. Morrison, 529 U.S. 598 (2000) (commerce clause); Bush v. Gore, 531 U.S. 98 (2000) (2000 presidential election); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (religion); Grutter v. Bollinger, 539 U.S. 306 (2003) (af½rmative action); Lockyer v. Andrade, 538 U.S. 63 (2003) (habeas corpus); Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (terrorism detainees); Law- rence v. Texas, 539 U.S. 558 (2003) (rights of gays and lesbians); Roper v. Simmons, 543 U.S. 551 (2005) (death penalty); Kelo v. City of New London, 545 U.S. 469 (2005) (takings of private property); McCreary County v. American Civil Liberties Union, 545 U.S. 844 (2005) (religion); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (terrorism detainees); Gonzales v. Carhart, 550 U.S. 124 (2007) (“partial birth” abortion); Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) (racial integration of schools); Crawford v. Marion County Election Board, 553 U.S. 181 (2008) (right to vote); Boumediene v. Bush, 553 U.S. 723 (2008) (terrorism detainees); District of Columbia v. Heller, 554 U.S. 570 (2008) (gun control); Citizens United v. Federal Election Commission, 558 U.S. 50 (2009) (free speech rights of corporations); National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012) (commerce clause/Affordable Care Act). 13 Justice O’Connor voted with the moderate liberals in four of the eleven cases in which she participated, involving af½rmative action, the rights of gays and lesbians, one of the three Guantánamo cases, and one of the two religion cases; Justice Kennedy voted with the moderate liberals in six of the eighteen cases, involving the rights of gays and lesbians, the death penalty, takings of private property, and all three of the Guantánamo cases. 14 The one exception would be Crawford, a voting rights case. 15 The two exceptions would be Lawrence, a gay rights case, and Hamdi, a terrorism case. 16 130 S.Ct. 876 (2009). 17 Pub.L. 107-155, 116 Stat. 81, enacted March 27, 2002, H.R. 2356. 18 2 U.S.C. sec. 441b. The act also limited labor unions, but for the sake of simplicity I will refer only to corporations. 19 424 U.S. 1 (1976).

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20 Pub.L. 92-225, 86 Stat. 3, enacted February 7, 1972, 2 U.S.C. sec. 431 et seq. Geoffrey R. Stone 21 424 U.S. at 39, quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968). 22 494 U.S. 652 (1990). 23 Ibid. at 659, quoting Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 257 (1986). 24 Ibid. at 659–660. 25 540 U.S. 93 (2003). 26 Ibid. at 203. 27 See, for example, Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449 (2007). 28 Lillian R. BeVier, “Full of Surprises–And More to Come: Randall v. Sorrell, the First Amend- ment, and Campaign Finance Regulation,” Supreme Court Review (2006): 195–196. 29 Justice Roberts replaced Chief Justice Rehnquist, but because Rehnquist had dissented in McConnell, this did not affect the vote in Citizens United. 30 130 S.Ct. at 905, quoting Justice Scalia’s dissenting opinion in Austin, 484 U.S. at 680. 31 Ibid. at 900. 32 These included, for example, a quite plausible statutory interpretation argument that the speci½c speech at issue in Citizens United did not even violate bcra, and an equally credible argument that the challenged provision was unconstitutional as applied to Citizens United because Citizens United is a nonpro½t corporation and thus in a very different position constitutionally in terms of need for the limitation on corporate spending than for-pro½t corporations such as Exxon Mobil, General Electric, and P½zer. 33 Lochner v. New York, 198 U.S. 45 (1905). 34 The era is generally said to have begun with Allgeyer v. Louisiana, 165 U.S. 578 (1897), and ended with West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 35 See, for example, Adair v. United States, 208 U.S. 161 (1908) (“yellow dog contracts”); Ham- mer v. Dagenhart, 247 U.S. 241 (1918) (child labor); Adkins v. Children’s Hospital, 261 U.S. 525 (1928) (minimum wage); Lochner v. New York, 198 U.S. 45 (1905) (maximum hours). 36 See Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion (Boston: Houghton Mifflin Harcourt, 2010), 101. 37 304 U.S. 144 (1938). 38 Ibid at 152 n.4. 39 Thomas Jefferson to James Madison, December 20, 1787, in Jack N. Rakove, Declaring Rights: A Brief History with Documents (Boston: Bedford, 1998), 154, 156. 40 James Madison to Thomas Jefferson, October 17, 1788, in ibid., 160–162. 41 Thomas Jefferson to James Madison, March 15, 1789, in ibid., 165. 42 James Madison, Speech to the House of Representatives, June 8, 1789, in The Papers of James Madison, vol. 12, ed. Charles F. Hobson, Robert A. Rutland, and William M.E. Rachal (Char- lottesville: University of Virginia Press, 1979), 204. 43 James Madison, Speech to the House of Representatives, June 8, 1789, in Rakove, Declaring Rights, 170, 179. 44 Alexander Hamilton, The Federalist No. 78, June 14, 1788, in Federalists and Antifederalists: The Debate Over the Rati½cation of the Constitution, ed. John P. Kaminski and Richard Leffler (Madison, Wis.: Madison House, 1989). 45 347 U.S. 483 (1954).

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The 46 388 U.S. 1 (1967). Supreme 47 Court in 370 U.S. 421 (1962). the 21st 48 397 U.S. 254 (1970). Century 49 377 U.S. 533 (1964). 50 384 U.S. 436 (1966). 51 372 U.S. 335 (1963). 52 376 U.S. 254 (1964). 53 384 U.S. 11 (1966). 54 Hearings on the Nomination of John G. Roberts to be Chief Justice of the Supreme Court of the United States before the Committee on the Judiciary, 109th Cong., 1st Sess. 56 (2005) (testimony of John G. Roberts). 55 See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). 56 See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 130 S.Ct. 3020 (2010). 57 See Citizens United v. Federal Election Commission, 558 U.S. 50 (2010). 58 See Thompson v. Western States Medical Center, 535 U.S. 357 (2002). 59 See Boy Scouts of America v. Dale, 530 U.S. 640 (2000). 60 See Bush v. Gore, 531 U.S. 98 (2000). 61 See Printz v. United States, 521 U.S. 898 (1997) (guns); Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) (age discrimination); Solid Waste Agency v. United States Army Corps of Engi- neers, 531 U.S. 159 (2001) (environment); United States v. Morrison, 529 U.S. 598 (2000) (violence against women). 62 See, for example, Lawrence v. Texas, 539 U.S. 558 (2003) (Rehnquist, Scalia, and Thomas dissenting from a decision protecting the rights of gays and lesbians); Gonzales v. Carhart, 550 U.S. 124 (2007) (Roberts, Scalia, Kennedy, Thomas, and Alito voting to narrow a woman’s right to abortion); United States v. Virginia, 518 U.S. 515 (1996) (Scalia dissenting from a decision protecting the equal protection rights of women); Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (2011) (Roberts, Scalia, Thomas, Kennedy, and Alito voting to uphold a state law disadvantaging illegal immigrants); Berghuis v. Thompkins, 130 S.Ct. 2250 (2010) (Roberts, Scalia, Kennedy, Thomas, and Alito voting to narrow Miranda rights); Salazar v. Buono, 130 S.Ct. 1803 (2010) (Roberts, Scalia, Kennedy, Thomas, and Alito voting to uphold the instal- lation of a cross on public property over the objections of members of minority religions). 63 Melvin I. Urofsky, “Conflict Among the Brethren: Felix Frankfurter, William O. Douglas and the Clash of Personalities and Philosophies on the United States Supreme Court,” Duke Law Journal (1988): 105.

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“Self-Interest Well Understood”: The Origins & Lessons of Public Con½dence in the Military

Andrew A. Hill, Leonard Wong & Stephen J. Gerras

Abstract: In recent decades, the U.S. military has enjoyed high levels of public con½dence. We argue that the rise (and sustainment) of public con½dence in the military reflects two phenomena. First, the public has a high regard for the military and its mission, arising from a shift to a professional (nonconscript) force that is perceived to be competent, fair, and accountable. Second, the public has little fear of military abuses in the domestic arena, owing chiefly to the reduced domestic presence of the military in the post–World War II era, with less emphasis on the physical defense of the homeland; and to the military’s careful cultivation of an apolitical culture since Vietnam. We conclude with a brief discussion of the military’s efforts to develop and encourage public-mindedness among its members, and the challenges to replicating the military approach in other institutional settings.

The U.S. military continues to be America’s most admired public institution, held in high esteem despite a broader decline in the public’s regard for American institutions.1 Indeed, many see the military as the exemplary American institution, from ANDREW A. HILL is Professor of Organization Studies in the De- which the nation should derive lessons for applica- partment of Command, Leader- tion to myriad aspects of public and private life, ship, and Management at the U.S. including developing citizenship and civic engage- Army War College. ment among America’s youth. Yet the relationship LEONARD WONG is Research between the American people and its defense Professor of Military Strategy in establishment has historically been anchored in the Strategic Studies Institute of two opposing sentiments: on one side, Americans the U.S. Army War College. see a large, standing military as a potential threat to STEPHEN J. GERRAS is the Gen- liberty; on the other, they revere the U.S. military eral Matthew B. Ridgway Chair of for its role in establishing the nation in revolution, Leadership in the Department of preserving it against rebellion, and defending it Command, Leadership, and Man- from foreign aggression. In this essay, we examine agement at the U.S. Army War the sources and implications of public trust in the College. military. We argue that the rise and sustainment of (*See endnotes for complete contributor public con½dence in the military reflects the ascen- biographies.) dance of the latter view (reverence for the military

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The Origins and its mission) and the subsidence of nomic ties to its armed services have & Lessons the former (fear of military abuses in the weakened in recent decades. of Public Con½dence domestic arena); and we explore the pos- Suspicion of military power is rooted in the sible causes of these changes. in the revolutionary ideals of the early Military American republic. The founders’ fear of In recent decades, Americans’ con½dence an unchecked military reflected both in the military and its leaders has risen their personal experience of abuse at the (see Figures 1 and 2, and Table 1). This hands of the British soldiery and their increasing trust in and regard for the knowledge of history, particularly that of armed forces has been the notable excep- the Roman republic. In the military rule tion to a general decline or stagnation in of Sulla, Julius Caesar, and other Romans, Americans’ regard for other key institu- the American revolutionaries and framers tions. The judiciary, organized religion, of the Constitution perceived archetypes public schools, universities, the executive for what happens when too much power and legislative branches of government, is entrusted to a charismatic leader of an the press, corporations, banks, organized army. Though agrarian democrats (Thom- labor–all have suffered to some extent. as Jefferson) disagreed with federalists Why not the military? What accounts for (Alexander Hamilton and James Mad- this divergence? ison) in many fundamental questions of One possible explanation is that the government, both groups believed that a country is becoming more militaristic, standing army could endanger freedom. but little evidence supports this view. In a speech to the Constitutional Conven- Fewer and fewer Americans serve in the tion in 1787, Madison expressed that fear: military. As of 2010, active-duty military In time of actual war, great discretionary personnel made up less than 1 percent of powers are constantly given to the Execu- the labor force; adding the National Guard tive Magistrate. Constant apprehension of and Reserve Component raises the total War, has the same tendency to render the to about 1.5 percent (see Figure 3). Indeed, head too large for the body. A standing mil- some are concerned that the men and itary force, with an overgrown Executive, women of the armed services are becom- will not long be safe companions to liberty. ing increasingly isolated from the nation The means of defense against foreign dan- they serve. In a speech at Duke University ger, have been always the instruments of in September 2010, then-Secretary of tyranny at home. Defense Robert Gates observed, “There is a risk over time of developing a cadre of Article 2, Section 2 of the Constitution military leaders that politically, culturally lays out civilian control of the armed and geographically have less and less in forces. More limitations (direct and indi- common with the people they have sworn rect) on the powers of the military were to defend.” Such was the gist of a recent enumerated in the Bill of Rights: notably, Time magazine cover story as well.2 in the right to bear arms, the protection What about the defense industry? Are from quartering troops, and the protec- public sympathies driven by economic ties tion from unreasonable search and to the military? It appears unlikely. Since seizure. The Posse Comitatus Act (1878) 1981, defense spending has declined rela- further limited the military’s role in the tive to gdp and has been relatively stable domestic sphere. Reacting against Recon- as a percentage of total government out- struction, the Congress forbade the use of lays. Thus, America’s personal and eco- the Army for the enforcement of domes-

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Figure 1 Andrew A. Percentage of Respondents Expressing “a great deal” or “quite a lot” of Con½dence Hill, in American Institutions, 1973–2011 Leonard Wong & Stephen J. Gerras

Note that no survey was conducted in 1992. Source: Figure created by authors based on Gallup poll data.

Figure 2 Percentage of Respondents Expressing “a great deal” of Con½dence in the “people in charge of running” American Institutions, 1971–2011

Source: Figure created by authors based on Harris poll data.

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The Origins Table 1 & Lessons Twenty-Year Change (between 1981 and 2011) in Percentage of Respondents of Public Expressing “a great deal” or “quite a lot” of Con½dence in American Institutions Con½dence in the Military 1981 2011 Change

The Church/Organized Religion 64 48 -16

The Military 50 78 28

U.S. Supreme Court 46 37 -9

Public Schools 42 34 -8

Congress 28 12 -16

Organized Labor 28 21 -7

Big Business 20 19 -1

Source: Table created by authors based on Gallup poll data.

Figure 3 The Military as a Percentage of the Labor Force, 1950–2010

Source: Figure created by authors with data provided courtesy of the Bureau of Labor Statistics and the Congres- sional Research Service.

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tic laws, except by another act of Con- when Marine and Army units were sent Andrew A. gress or a modi½cation of the Constitu- to rioting areas of Los Angeles in 1992.3 Hill, Leonard tion. Although one may still ½nd fears of Third, the military has generally Wong & the domestic abuses of a too-powerful detached itself from domestic politics. In Stephen J. military in works of ½ction, and in the the ½rst century of U.S. presidential poli- Gerras paranoid fantasies of the political fringes, tics, the boundary between military and recent history has given Americans little political high of½ce was porous. Military cause for worry in this regard. As a result, accomplishments ½gured largely in the Americans’ historical fears of a too-pow- political rise of numerous American erful military have faded. Three changes presidents, including thirteen of the ½rst have driven this trend. twenty-½ve, from George Washington to First, the domestic footprint of the mil- Theodore Roosevelt. Yet the current cul- itary has been dramatically reduced in ture of the U.S. armed services frowns on recent decades. Through ½ve rounds of overt political activity by senior military Base Realignment and Closure (brac) leaders–active or retired–despite the from 1989 to 2005, 350 military installa- conservative leanings of the majority of tions have been closed. The number of of½cers. If the spectrum of politicization active-duty military personnel has declined ranges from the apolitical model espoused as well, from around 3 million in 1970, to by General George Marshall to the highly 2 million in 1980, to slightly fewer than 1.5 politicized maneuverings of General million today. Relative to the U.S. popu- Douglas MacArthur, the current military lation, this downsizing has been large: leans strongly in the direction of Mar- active-duty military personnel accounted shall. for 1.5 percent of the population in 1970, The political community is also increas- 0.9 percent in 1980, and just 0.48 percent ingly detached from the military. While in 2010. numerous veterans (primarily from World Second, the U.S. military’s role of War II) have sought and obtained the national defense (the physical garrisoning presidency,4 the last senior military of½cer and defense of the United States itself ) to obtain his party’s nomination for the has had little signi½cance in military presidency is also the last one to win the planning and deployment since 1945. of½ce: General Eisenhower, who served Ostensibly, all American military actions as nato commander prior to the 1952 are in defense of the U.S. Constitution. election. Of the nation’s 541 Senators and The oath taken by the men and women of Representatives in the 112th Congress the armed services names “all enemies, (2011–2013), 118 served or currently serve foreign and domestic” (emphasis added); but in the military (9 served in the National in recent U.S. history, foreign enemies Guard or the Reserve), approximately 22 operating on foreign soil have predomi- percent of the membership.5 Although nated. The 9/11 attacks are a notable this ½gure is considerably higher than the exception, although their unconventional proportion of veterans in the general U.S. character and brief duration precluded population, Congress is more male (83 any signi½cant U.S. military involvement percent) and older (an average age of in combating them. U.S. military power 57.8) than the general population, so a is projected across the globe but is barely greater proportion became adults during noticeable at home. Since 1970, federal the conscription era, skewing the proba- forces have been used only once in the bility of military service. Perhaps more domestic enforcement of law and order, signi½cant is the strong downward trend

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The Origins in military experience in Congress, dem- blood: in the rebellion against England; & Lessons onstrating how the post–conscription in the Civil War; in wars of expansion of Public Con½dence era population is now occupying a against Mexico, Native Americans, and in the greater proportion of government posi- Spain; and in the wars of the twentieth Military tions. According to the Congressional and twenty-½rst centuries. Indeed, from Research Service: the viewpoint of the American people, the great lesson of the twentieth century The number of veterans in the [current] was that American military power ac- Congress reflects the trend of a steady companied by the spread of Anglo-Saxon decline in recent decades in the number of models of government and economy Members who have served in the military. wrought widespread peace and prosperity. For example, there were 298 veterans (240 This triumph, however, was not with- Representatives, 58 Senators) in the 96th out setbacks. The Vietnam War was a Congress (1979–1981); and 398 veterans traumatic experience for the U.S. mili- (329 Representatives, 69 Senators) in the tary, and it damaged public con½dence in 91st Congress (1969–1971).6 the armed services. In 1966, a Harris sur- Thus, through the military’s shrinking vey found that 61 percent of respondents footprint, its far-flung activities, and its had “a great deal of con½dence” in the maintenance of an apolitical culture (at military’s leadership; ½ve years later, just least when viewed from the outside), it 27 percent felt that way.7 Yet these effects has become less relevant to the daily life of the war were not restricted to the lead- of the average citizen. It may be that a ership of the armed services. The events crucial element to preserving and increas- surrounding the war undermined trust in ing public trust in the military is main- the leadership of virtually all major Amer- taining a distance between the prepara- ican institutions (see Table 2). What is tion, conduct, and control of military notable is that only the military has operations and the domestic lives of recovered the con½dence that it lost.8 Americans. In this way, the nation’s tra- As discussed above, part of this recovery ditional wariness toward military power may stem from a decline in public fears of has to some extent receded in recent military interference in civic life. But a decades. At the inception of the all-vol- purely negative explanation for the rise in unteer military four decades ago, some con½dence in the military is incomplete. observers worried that it would emerge Institutions also derive public support as a modern Praetorian Guard or a potent from other factors: namely, competence political menace. These fears have thus and a concern for society’s best interests. far been unfounded. Thus, has the military become more competent and more public-minded since the Societal trust in the military has not Vietnam War? always been as high as it is today. The American people have a long-standing The consensus within the military is respect for the principles of duty and that the force has achieved a high level of sacri½ce embodied by the nation’s armed readiness and effectiveness. Yet the tran- forces, as well as a belief that the conduct sition from a conscript to an all-volunteer of war has a rightful place in establishing force initially resulted in a decline in and protecting the nation. The United competence–what then-Army Chief of States may have been “conceived in liber- Staff General Edward Meyer called “the ty,” but it was birthed, and preserved, in hollow force.”9 (The term still has great

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Table 2 Andrew A. Percentage of Respondents Expressing “a great deal” of Con½dence in the “people Hill, in charge of running” American Institutions (bold indicates decline from prior survey) Leonard Wong & Stephen J. Gerras Change, 1966 1971 1981 1991 2001 2011 1966–2011

Organized Religion 4127 22 21 25 24 -17

The Military 6127 28 47*44 57 -4

U.S. Supreme Court 5023 2915 35 24 -26

Congress 4219 16 9 18 6 -36

Major Educational 6137 34 32 * 35 30 -31 Institutions

The Press 2918 16 13 * 13 11 -18

Organized Labor 2214 12 2115 15 -7

Major Companies 5527 16 20 20 13 -42

*Figure is an average of nearest adjacent data because no response was provided for 1991. Source: Harris, Index of Con½dence, May 18, 2011, http://www.harrisinteractive.com/NewsRoom/HarrisPolls/tabid/447/ctl/ReadCustom %20Default/mid/1508/ArticleId/780/Default.aspx.

resonance in the defense community; it racks in Beirut; Task Force Ranger has been invoked, for example, in current (“Black Hawk Down”) in Somalia in discussions of the effects of defense 1993; and most recently, the military’s budget cuts.) By the mid-1970s, signi½cant slow response to the development of the changes were under way in the Army insurgency in Iraq. In the wake of these (and in the military more broadly) that setbacks, the U.S. military has demon- would result in the professional, effective strated remarkable resilience and strength, force that executed U.S. policy in Grenada, and the American public has been forgiv- Panama, Kuwait, the Balkans, and else- ing. Indeed, the blame for operational or where.10 tactical military failures tends to rest Certainly, there have been struggles with the political leadership of the mili- and failures. For the sake of this analysis, tary: the president and the secretary of we distinguish operational/tactical prob- defense, among others. Consider, for lems (the result of poor military planning instance, the repudiation of the conduct or execution, or of effective enemy action) of the Iraq War as demonstrated in the from scandal (the result of personal or 2006 U.S. midterm elections. This pat- institutional failure). Operational struggles tern is supported by the civil-military include the failed rescue of hostages in relations model described above: U.S. Iran in 1980 (Operation Eagle Claw); the military leaders have assumed a largely 1983 bombing of the Marine Corps bar- instrumental role in the formulation of

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The Origins national security and military policy. out.) At the end of the Vietnam War, the & Lessons Thus, they advise but defer ½nal judgment U.S. military’s leaders understood well of Public Con½dence to their civilian leaders and, perhaps that exercising a ½rmer hand in the for- in the more signi½cant, avoid public dissent mulation of policy has a cost: shared Military once a policy decision is made. As General responsibility for policy failures. The cur- Colin Powell describes it: “When we are rent model for civil-military relations debating an issue, loyalty means giving pushes much of that responsibility back me your honest opinion, whether you to civilian leaders. The military has sus- think I’ll like it or not. Disagreement, at tained the public perception of compe- this stage, stimulates me. But once a deci- tence through its effective execution of sion has been made, the debate ends. From the policies it is given. Rightly or not, the that point on, loyalty means executing public therefore understands military the decision as if it were your own.”11 failures as being rooted not in the mili- The military’s ability to avoid blame tary’s execution, but in unwise policy. for its recent operational or tactical struggles may be partly rooted in its current In addition to valuing competence, society approach to civil-military relations. While also expects institutions to serve a greater loyalty in response to criticism of policy good. This public-mindedness is grounded may seem an obvious behavior for mili- in three principles: selflessness, account- tary professionals, there are legal alterna- ability, and fairness. These factors are tives available to them. Indeed, a stan- highlighted by the other institutions that dard question asked of service chiefs in enjoy widespread public con½dence: small their con½rmation hearings is whether business and the police. According to a they will express their personal views of 2011 Gallup poll, 78 percent of Americans executive policy when questioned by expressed “a great deal” or “quite a lot” Congress. The answer given is yes; but in of con½dence in the military; 64 percent recent memory there have been few said the same for small business, and 56 instances of such candor. We would do percent for the police. In contrast, Con- well to remember that an of½cer’s oath is gress (12 percent), the presidency (35 per- to support and defend the Constitution cent), and big business (19 percent) are –not the policies of an administration. held in relatively low regard by the Amer- Prior generations of military leaders ican public. occasionally interpreted this as an obliga- What does the military have in common tion to resist what they perceived to be with the police and small business? In the the dangerous errors of their civilian case of the former, unsel½sh service is a leaders. common trait. The police (ideally) have From the 1930s through the 1960s, the no other purpose than to protect and debate on military policy was often both serve the nation’s communities. In per- public and acrimonious. For example, forming this service, capable men and Army Chief of Staff General Matthew women make sacri½ces. They give up Ridgway waged a long (and futile) cam- potentially lucrative and rewarding op- paign against President Eisenhower’s portunities in other jobs. They put them- “new look” military policy.12 The presi- selves in danger, sometimes sacri½cing dent did not nominate Ridgway to a sec- their lives. Small business is perceived to ond term, selecting as his replacement share two key traits with the military: General Maxwell Taylor, who promised fairness and accountability. In small busi- to be more pliant. (He wasn’t, as it turned ness, Americans see the best qualities of

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the nation’s economic system (opportu- leaders, such removals are usually career- Andrew A. nity for those who seek it, rewards for ending. The Walter Reed scandal, for Hill, Leonard those who succeed), absent the abuses instance, ended the careers of two gener- Wong & and corruption that they impute to big als (including the surgeon general at the Stephen J. business and banks. Small business own- time); the secretary of the army was ½red Gerras ers pursue self-interest, but their success as well. For men and women who have is deserved because it emerges from their chosen careers in the military, honor and own hard work and not from a manipula- reputation are the currency of personal tion of the system’s resources. Small success. To end a career in disgrace is a businesses create wealth and opportuni- powerful symbol and a reminder of per- ty; they are a gateway for immigrants to sonal and institutional accountability. enter the American middle class, and The public appears to understand this. It they evoke the entrepreneurial spirit and does not expect perfection from the mili- mythos of American economic history tary; it expects consequences for internal –think of Andrew Carnegie, Bill Gates, failures. The military has generally sat - the ½ctional heroes of Horatio Alger sto- is½ed these expectations. ries, and so on. Furthermore, small busi- In their book The Meritocracy Myth, ness owners are exposed to risk; if a small sociologists Stephen McNamee and business fails, it is left to fail. Thus, fair- Robert Miller argue that the American ness works both ways. dream rests upon the belief that America Accountability and merit-based rewards is a land of limitless opportunity in which are two sides of the same coin: there is no individuals can go as far as their own justice in rewarding success if there are merit takes them.13 Individuals get out of no consequences to failure. In this regard, the system what they put into it, and get- we may understand some of what lies ting ahead is based on individual merit behind the military’s resilience in the –a combination of factors including face of a second challenge: scandal. innate abilities, working hard, having the Unlike tactical or operational failure, right attitude, and having high moral scandal presents a different problem. It is character. McNamee and Miller go on to typically a failure of the institution itself, point out, however, that certain social and blame therefore must reside within forces in America can suppress or negate it. One may ask how the military has sus- the effects of merit in the race to get tained the public’s con½dence through ahead. Such forces include inheritance, wrenching institutional failures: for social and cultural advantages, unequal example, Abu Ghraib, the Walter Reed educational opportunity, the decline of scandal, and the Pat Tillman friendly-½re self-employment, and discrimination in cover-up. This is a complex question that all its forms. Yet the military is seen to be is beyond the scope of this essay. How - relatively free of these sources of injustice. ever, the military’s culture of accountabil- The military places soldiers, sailors, ity is a crucial element of the institution’s marines, and airmen and women in a cul- resilience. ture in which advancement and recogni- The military’s internal processes of tion are based on individual achievement. self-correction and policing are swift and The social sources of injustice described generally unambiguous. When wrong- by McNamee and Miller are countered doing occurs, the perpetrators are brought by military policies that eliminate nepo- to justice. Incompetent leaders are re- tism, negate socioeconomic and cultural moved from their positions; for senior differences, and express zero tolerance

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The Origins for any type of discrimination. Nepotism uniform, before or after college, working & Lessons and inheritance are eliminated by the and bunking with others of very different of Public Con½dence lack of horizontal entry into the profes- backgrounds and races (the military, in the sion. The only way to move up the hierar- remember, was about the only racially Military chy in the military is to start at the bot- integrated institution at the time). tom. Thus, most Americans believe that This shared experience helped instill in the military provides opportunity to all those who served, as in the national culture Americans; they have faith that compe- generally, a sense of unity and moral seri- tence is recognized and rewarded, and ousness that we would not see again–until that training and educational resources after September 11, 2001. It’s a shame that are provided. Simultaneously, they are it has taken terrorist attacks to awaken us reassured by the fact that incompetence to the reality of our shared national fate. and failure have consequences in the mil- We should use this moment to rebuild itary. Much of the anger toward American institutions like the draft that will keep us corporations today stems from the feel- awake to this reality even as the memory of ing that the men and women who lead the attacks fades.14 these ½rms have escaped the just consequences of their actions. This offends While a return to the draft seems a Americans’ strong sense of fairness. remote possibility, there are other ways to leverage the virtues of the military in The military’s embodiment of selfless- promoting good citizenship, and to trans- ness, merit, and accountability has led late the values engendered through mili- some to seek broader lessons from the tary training, education, and leadership example set by the armed forces. In par- development. Retired military of½cers ticular, the military is offered as an exem- have been summoned to lead troubled plar in instilling the notions of service school districts in places such as Wash- and civic responsibility in America’s ington, D.C., Seattle, Huntsville, and youth. Calls to reinstate a draft (or at least Wake County, North Carolina. Programs a draft as a part of compulsory national to rehabilitate wayward juveniles via teen service) are indicative of this sentiment. boot camps and junior rotc detach- According to this view, the draft, beyond ments have multiplied in schools across meeting the manpower requirements of the nation in an effort to instill the values the military in a way that reflects the of self-discipline and leadership. Addi- society it serves, would draw the country tionally, public school military acade- together through the common experi- mies have emerged in response to the ence of national service, would encour- yearning for renewed citizenship. In age the development of shared values, Chicago–where more than ten thousand and would be a powerful remedy for the high school students now wear a uniform individualism that seems to dominate to class–retired Army of½cer and cur- today’s society. The sociologist Charles rent principal of the Chicago Marine Moskos, harkening back to the draft days Academy, Paul Stroh, has stated that the in the post–World War II era, has noted: mission of public military schools is simply to “produce a student that is prepared During the peaceful years of the 1950s–a for post-secondary education and that time not unlike our own, when the threat eventually will become a leader in their of mass destruction hung in the air–most community, at the city, the state, or even Ivy League men had to spend two years in the national level.”15

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Turning to the military model for the with a culture that rede½nes self-interest. Andrew A. education of America’s youth has received It is a culture that relies on what Alexis de Hill, Leonard some criticism. Boot camps have been Tocqueville called “self-interest well Wong & under closer scrutiny after instances of understood.” From his travels through- Stephen J. abuse, junior rotc and public school out the United States during the early Gerras military academies have been accused of 1800s, Tocqueville noted: surreptitiously serving as recruiting of- Americans . . . are pleased to explain almost ½ces, and the pedagogical competence of all the actions of their life with the aid of military of½cers serving in positions of self-interest well understood; they com- educational leadership has been ques- placently show how the enlightened love tioned. Nevertheless, admiration for the of themselves constantly brings them to role of the military in imbuing the values aid each other and disposes them willingly of citizenship in young people has en - to sacri½ce a part of their time and their dured. wealth to the good of the state. . . . Each But what exactly is it about the military American knows how to sacri½ce a part of that takes America’s youth–who are his particular interests to save the rest.17 often in a stage of life more characterized by self-interest and sel½shness than Tocqueville’s Americans valued their sacri½ce and selflessness–and transforms liberty–their ability to choose for them- them into soldiers, marines, sailors, and selves and enjoy the fruits of their airmen who are willing to set aside self- labors–yet they also grasped the essen- interest in pursuit of the greater good?16 tial paradox of liberty: that its mainte- What makes them willing to expose them- nance requires collective action. People selves to the consequences of their deci- during that period understood that citi- sions (including the potential loss of life) zens who acted to further the interests of when a different career choice would society ultimately served their own inter- offer a path less fraught with danger? Is it ests through the betterment of the socie- the stripping away of the individual iden- ty in which they lived. This could happen tity in order to emphasize uniformity only if they subjected themselves to a col- (and uniforms)? Is it the discipline of a lective authority of civic and political hierarchical system with clearly de½ned groups. ranks, organizational rituals, customs, and Some have lamented the decline of the courtesies? While these aspects of the civic society Tocqueville observed (nota - military are often the most noticeable, they bly Robert Putnam in his book Bowling are also the most super½cial. The devel- Alone), but the American military retains opment of selfless and responsible citizens the individualism essential to being an begins with the recognition that service American while also emphasizing the members are, above all, Americans; and principle of “self-interest well under- an acceptance of the contradiction inher- stood.” Uniforms, jargon, salutes, disci- ent to American society: the tension be - pline, and hierarchy may encourage this tween self-interest and individualism, on principle, but as social psychologist the one hand, and commitment to and sac - Edgar Schein points out, these are sec- ri½ce for the common good, on the other. ondary reinforcing mechanisms–practices that are visible to outsiders, and there- Instead of stamping out all vestiges of fore likely to be seen as the roots of the American individualism in its members, organizational culture.18 They tell us that the U.S. military surrounds its members some sort of culture is present, but they

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The Origins do not tell us how it came about, what it tion in every service of the military learns & Lessons does, or how it endures. the principle of “self-interest well under- of Public Con½dence It is through its leaders–from the low- stood.” in the est level sergeant to the highest ranking The culture is also embedded through Military general–that the military passes on its the actions and attitudes of military leaders culture of “self-interest well under- at the highest levels. As discussed above, stood.” In the army, for example, this the U.S. military is led by civilians. The process begins the ½rst day a new mem- concept of civilian control of the military ber is introduced to the military via the ensures that the most decorated, highest drill sergeant, who, along with the non- ranking of½cers will still subordinate commissioned of½cer (nco)corps in their views to the civilians appointed over general, epitomizes the two characteris- them. It is the duty of military of½cers to tics that make the military a well-regard- render their expert military opinion, but ed American institution: competence it is the decision of the civilian political and selflessness. These two themes char- leadership that determines the strategic acterize the Noncommissioned Of½cer direction of the military. For the good of Creed (abridged below), which is recited the nation, military leaders are subordi- with pride by every sergeant in the Army: nate to their elected political leaders. From President Truman’s ½ring of Gen- No one is more professional than I.. . . Com- eral Douglas MacArthur in 1951, to Gen- petence is my watchword. My two basic eral Stanley McChrystal’s relief as com- responsibilities will always be uppermost mander of forces in Afghanistan in 2010 in my mind–accomplishment of my mis- by President Obama, history provides sion and the welfare of my soldiers. . . . All numerous examples of this subordina- soldiers are entitled to outstanding leader- tion–a fact built on service and account- ship; I will provide that leadership. I know ability. my soldiers and I will always place their needs above my own. The men and women of the armed forces, For many new soldiers, the nco is the including senior of½cers, sacri½ce a great ½rst adult in their lives whose primary deal of personal liberty. They subordinate purpose is to develop them into better their wills to the protection of the U.S. men and women, and better leaders. In Constitution and, more tangibly, to the their ncos, soldiers discover a curious will of their superiors and the code of mix of high expectations, hard truths, conduct of the organization. Yet such a and unexpected compassion. Soldiers commitment must be reinforced by other gradually realize that ncos are drastically organizational practices. In this regard, underpaid considering their line of work, the reinforcing mechanisms of military spend inordinate time working with sol- culture establish and guard privileges diers at the expense of family and person- that are found almost nowhere else in al needs, and are utterly devoted to their American society. This is the implicit soldiers and the Army. Soldiers learn that contract of military service. To the sol- ncos take equal pride in being the dier, sailor, marine, and airman, the nation “backbone of the Army” and subordinat- says, “Give me your liberty, and I will give ing their needs and interests to those of you freedom.” the of½cers over them or the soldiers Members of the armed forces live free under them. Through constant exposure from many of the fears that daily weigh to these role models, each new genera- on their civilian counterparts. The value

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of the individual is reinforced in the com- I will never quit. Andrew A. plete social safety net (by “complete,” we I will never leave a fallen comrade. Hill, Leonard do not suggest it is without flaws) that I am disciplined, physically and mentally Wong & surrounds service members from the day tough, trained and pro½cient in my war- Stephen J. they enter the service until the day they rior tasks and drills. Gerras leave, and in some cases, long after they I always maintain my arms, my equipment retire. Individual identity may be dimin- and myself. ished by providing soldiers common uni- I am an expert and I am a professional. forms, for example, but the value of indi- I stand ready to deploy, engage, and destroy, viduals is enhanced. Socioeconomic dif- the enemies of the United States of Amer- ferences are erased. Personnel of similar ica in close combat. rank receive similar housing, health care, I am a guardian of freedom and the Amer- and compensation. They shop in the same ican way of life. department and grocery stores (the post I am an American Soldier. exchange, or PX, and the commissary). For a soldier to promise never to leave a Discrimination is minimized in a system fallen comrade–even if that means that emphasizes (and includes in per- endangering himself in the process– formance evaluations) equal opportuni- requires a transformed understanding of ty, but stops short of using quotas in individualism. The individual is of great order to avoid reverse discrimination. worth, but it is always the other individual. Thus, contrary to McNamee and Miller’s No soldier demands special treatment, observations that meritocracy is a myth for he or she knows that such demands in America, individualism via the work- are unnecessary. It is the principle of ings of meritocracy is alive and well in “self-interest well understood.” the U.S. military. This push-pull dynamic of the subordi- he Soldier’s Creed, though, is merely nation and protection of individual liber- T an artifact of Army culture. We ½nd an ty is perhaps most powerfully demon- organization’s true values and beliefs not strated in the military’s code of comrade- in creeds or published proclamations, but ship. Military men and women take in observing how rewards and recognition tremendous personal risks for the sake of are dispensed within the organization. a fallen or wounded fellow. Returning to Corporations dole out pay raises and bo- the example of the Army, soldiers are nuses to reinforce and recognize those who encouraged to strive for personal ad- exemplify desired corporate values. Instead vancement, but always within the con- of monetary remuneration, the military text of others–whether that be a buddy, relies on awards or medals to applaud the unit, or the profession. This juxtapo- those who uphold and exemplify its values. sition of the individual with the obliga- The highest award in the military is the tion toward others is core to the Soldier’s Congressional Medal of Honor, awarded Creed: by the president to a service member who I am an American Soldier. “distinguishes himself or herself conspicu- I am a warrior and a member of a team. ously by gallantry and intrepidity at the I serve the people of the United States, and risk of his or her life above and beyond the live the Army Values. call of duty while engaged in an action I will always place the mission ½rst. against an enemy of the United States.”19 I will never accept defeat. Recipients of the Medal of Honor are so respected by other members of the

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The Origins Table 3 & Lessons Post–9/11 Medal of Honor Recipients of Public Con½dence in the Military Recipient Service Location Year Situation

Killed while holding the enemy at bay, Paul R. Army Iraq 2003 allowing for the wounded to be carried Smith out

Fought hand-to-hand with the enemy Jason Marines Iraq 2004 and hurled himself on a grenade to Dunham protect fellow Marines

Led a four-man reconnaissance team Michael P. in a ½ght against superior numbers, Navy Afghanistan 2005 Murphy exposed himself to hostile ½re in order to call for help

Killed while trying to rescue a wounded Jared C. Army Afghanistan 2006 soldier from intense small arms and Monti rocket-propelled grenade ½re

Saved the lives of his fellow seals at Michael A. Navy Iraq 2006 his sniper position by diving on a Monsoor grenade

Saved the lives of four soldiers by Ross A. Army Iraq 2006 diving on a grenade while inside a McGinnis Humvee

Salvatore For risking his life to save a wounded Army Afghanistan 2007 Giunta soldier from being captured

Robert Fatally shot while diverting gun½re James Army Afghanistan 2008 from Taliban forces so that his fellow Miller soldiers could escape

Leroy Picked up and threw a live grenade Army Afghanistan 2008 Petry away from his fellow soldiers

Dakota Rescued 23 Afghans and 13 Americans Marines Afghanistan 2009 Meyer in the heat of battle

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military that they are customarily saluted, the individual. As a result, many aspects of Andrew A. regardless of rank or status. The Medal of the military are being emulated through- Hill, Leonard Honor may be the military’s most vivid out the country in an effort to instill the Wong & symbol of the application of the principle principles of citizenship in America’s Stephen J. of “self-interest well understood.” Of the young people. Yet the symbols of military Gerras servicemen awarded the medal during culture–including discipline, uniforms, and since World War II, almost 60 per- and ceremony–only scratch the surface. cent died as a result of their heroism. This While meaningful and perhaps ennobling extraordinary standard of self-sacri½ce to many of today’s youth, these charac- has continued in the conflicts in Iraq and teristics of the military are themselves Afghanistan (see Table 3). subordinate to the fundamental principle of “self-interest well understood.” This In a time of cynicism toward public principle is conveyed through a culture institutions, American society continues that retains American individualism and to hold the U.S. military in high esteem. American collective engagement. It strives Competence, accountability, and subor- to maintain and protect a meritocracy dination of the institution’s interests to built on accountability, while equally those of society are the main drivers of emphasizing the institution’s obligations societal con½dence. American society has to the soldiers and their families, and the also taken notice of the military’s success soldiers’ obligations to their comrades in transferring institutional selflessness to and the profession.

endnotes * Contributor Biographies: ANDREW A. HILL is Professor of Organization Studies in the Department of Command, Leadership, and Management at the U.S. Army War College. His prior publications on the military include Which of These People is Your Future CEO? (with Boris Groysberg and Toby Johnson, 2010). His current research examines organizational learning and strategic change. LEONARD WONG is Research Professor of Military Strategy in the Strategic Studies Insti- tute of the U.S. Army War College. He is a retired Lieutenant Colonel in the U.S. Army. His publications include The Effects of Multiple Deployments on Army Adolescents (with Stephen J. Gerras, 2010), Developing Adaptive Leaders: The Crucible Experience of Operation Iraqi Freedom (2004), and Why They Fight: Combat Motivation in the Iraq War (with Thomas A. Kolditz, Ray- mond Millen, and Terrence Potter, 2003). STEPHEN J. GERRAS is the General Matthew B. Ridgway Chair of Leadership in the Depart- ment of Command, Leadership, and Management at the U.S. Army War College. He is a retired Colonel in the U.S. Army and an organizational psychologist. He has published numerous articles and book chapters on leadership, organizational performance, and critical thinking. 1 The views expressed in this essay are those of the authors and do not reflect the of½cial policy or position of the Department of the Army, Department of Defense, or the U.S. government. 2 Mark Thompson, “An Army Apart: 45,000 Troops are Coming Home to a Country that Doesn’t Know Them,” Time, November 21, 2011. 3 National Guard units from all ½fty states were sent to support the recovery of the Gulf Coast following Hurricane Katrina–a quasi-federal response. Some federal units were sent as well, though not for the purpose of law enforcement.

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The Origins 4 President Truman served in World War I. Nominees Wendell Willkie (Army) and Adlai & Lessons Stevenson (Navy) enlisted during World War I, but the war ended before they saw action. of Public Presidents Kennedy, Nixon, Ford, and George H.W. Bush served in World War II, and Pres- Con½dence in the ident Johnson served briefly in the Paci½c. President Carter entered the U.S. Naval Academy Military in 1943 and served in the post–World War II Navy. Democratic nominees George McGovern (World War II), Al Gore (Vietnam), and John Kerry (Vietnam) saw combat, and Michael Dukakis served in the peacetime Army. Republican nominees Bob Dole (World War II) and John McCain (Vietnam) also saw combat. Independent nominee Ross Perot served in the Navy. This review is restricted to presidents and presidential candidates who served in the nationally controlled military, as opposed to National Guard units. 5 Note that a very small proportion of members of Congress have children in the military. 6 Jennifer Manning, “Membership in the 112th Congress: A Pro½le” (Washington, D.C.: Con- gressional Research Service, March 1, 2011), http://www.senate.gov/reference/resources/ pdf/R41647.pdf. 7 In evaluating such polls, we should remember that to some respondents, one may do no wrong, and to others, one may do no right. The important changes occur in between, and the Harris data show a signi½cant shift in the way the “middle” of the country feels about the leadership of the military since the end of the Vietnam War. Gallup con½dence polls support this result, but because they aggregate two responses in the historical tables (“a great deal” and “quite a lot”), the data show less variance and are somewhat less informative. See Figure 1, above. Gallup, Con½dence in Institutions, June 9–12, 2011, http://www.gallup .com/poll/1597/con½dence-institutions.aspx. 8 The decline in public con½dence in labor leadership has been small, but that is from a low baseline (just 22 percent). 9 James J. Carafano, “Avoiding the Hollow Army,” Army (July 2005): 69–70. 10 For more discussion, see Richard Lock-Pullan, “‘An Inward Looking Time’: The United States Army, 1973–1976,” Journal of Military History (April 2003): 483–512; and John L. Romjue, The Army of Excellence: The Development of the 1980s Army (Fort Monroe, Va.: U.S. Army Training and Doctrine Command, 1993). 11 Colin L. Powell, with Joseph E. Persico, My American Journey (New York: Random House, 1995). 12 A. J. Bacevich and Lawrence F. Kaplan, “Generals versus the President: Eisenhower and the Army, 1953–1955, a Case in Civil-Military Relations” (Syracuse, N.Y.: Syracuse University, 1997). 13 Stephen J. McNamee and Robert K. Miller, Jr., The Meritocracy Myth, 2nd ed. (Lanham, Md.: Rowman & Little½eld, 2009). 14 Charles Moskos and Paul Glastris, “Now Do You Believe We Need A Draft?” Washington Monthly, November 2001. 15 Paul Stroh, as interviewed in the segment “Chicago’s Military Academies Raise Education Debate,” PBS NewsHour, December 26, 2007. 16 The perspective in this section reflects the Army service experience of two of the authors, and many examples are therefore drawn from the Army. It is the authors’ belief, however, that these examples are also representative of the experiences of members of the Navy, Air Force, and Marine Corps. 17 Alexis de Tocqueville, Democracy in America, trans. Harvey Mans½eld and Delba Winthrop (Chicago: University of Chicago Press, 2000), 502–503. 18 Edgar H. Schein, “How Founders and Leaders Embed and Transmit Culture: Socialization from a Leadership Perspective,” in Organizational Culture and Leadership, 2nd ed. (San Fran- cisco: Jossey-Bass, 1992), chap. 13. 19 Military Awards, Army Regulation 600-8-22 (Washington, D.C.: U.S. Government Printing Of½ce, 2011), 53.

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The Challenges Facing Civic Education in the 21st Century

Kathleen Hall Jamieson

Abstract: This essay explores the value and state of civics education in the United States and identi½es ½ve challenges facing those seeking to improve its quality and accessibility: 1) ensuring that the quality of civics education is high is not a state or federal priority; 2) social studies textbooks do not facilitate the development of needed civic skills; 3) upper-income students are better served by our schools than are lower-income individuals; 4) cutbacks in funds available to schools make implementing changes in civics education dif½cult; and 5) reform efforts are complicated by the fact that civics education has become a pawn in a polarized debate among partisans.

Because, as John Dewey contended, “[d]emocracy has to be born anew every generation, and education is its midwife,”1 the quality of civic education has been a concern of those interested in the health of our system of government and the well-being of the citizenry. For much of the nation’s history, our leaders have viewed civics education as a means of realizing the country’s democratic ideals. In the past decade, low levels of youth voting and non-pro½- KATHLEEN HALL JAMIESON, a cient student performance on a widely respected Fellow of the American Academy civics assessment test have elicited efforts to since 2001, is the Elizabeth Ware increase the amount and quality of time spent Packard Professor in the Annen- teaching civic education and have ignited a move- berg School for Communication and the Walter and Leonore Annen - ment to create common standards in the social berg Director of the Annenberg studies. Complicating these efforts is ideological Public Policy Center at the Univer- disagreement about the content that should be sity of Pennsylvania. She is the taught and the values that ought to be inculcated. author, coauthor, or editor of ½fteen Validating the belief in the worth of civics educa- books, including The Obama Victory: tion and underscoring the importance of reform How Media, Money, and Messages efforts, data reveal that schooling in civics and Shaped the 2008 Election (with Kate Kenski and Bruce Hardy, 2010), other, related cocurricular activities are associated Presidents Creating the Presidency with increased knowledge of the U.S. system of (2008), and unSpun: Finding Facts government and heightened participation in dem- in a World of Disinformation (2007). ocratic activities such as voting.

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The Reformers seeking to increase the qual- Scholars of U.S. history argue that “it Challenges ity and accessibility of civic education in was ½rst religion and next education that Facing Civic Education schools confront ½ve challenges. First, engaged the attention of the early set- in the 21st neither the federal government nor the tlers.”5 Whereas the Puritans justi½ed the Century states have made high-quality civics edu- teaching of reading primarily as a means cation a priority, a conclusion justi½ed by of accessing Scripture, Benjamin Franklin evidence showing that the systematic envisioned schooling as a means of “lay- study of civics in high school is not univer- ing such a foundation of knowledge and sal; that fewer high school civics courses ability as, properly improved, may qualify are offered now than were offered in the [individuals] to pass through and execute past; that the time devoted to teaching the the several of½ces of civil life, with advan- subject in lower grades has been reduced; tage and reputation to themselves and and that most states do not require mean- country.”6 ingful civics assessment. Second, social Unsurprisingly, then, those governing studies textbooks may not adequately under the Articles of Confederation sig- convey the knowledge or facilitate devel - naled education’s centrality to national opment of the skills required of an well-being as early as the Land Ordinance informed, engaged citizenry. Third, con- of 1785, which “set aside the sixteenth sequential differences in access and out- section of government land in each comes between upper- and lower-class township for school support.” Two years students persist. Fourth, cutbacks in fund- later, Article Three of the Northwest ing for schools make implementation of Ordinance of 1787 proclaimed, “Religion, changes in any area of the curriculum morality, and knowledge being necessary dif½cult. Fifth, the polarized political cli- to good government and the happiness of mate increases the likelihood that curric- mankind, schools and the means of edu- ular changes will be cast as advancing a cation shall forever be encouraged.”7 partisan agenda. Recognizing the importance of education in developing the capacities of citi- Throughout much of its history, the zenship, early U.S. presidents championed United States has “relied upon govern- government-supported schooling for at ment schools as a principal purveyor of least some citizens. As a result, the Mili- deeply cherished democratic values.”2 So tary Academy at West Point was estab- interconnected are education and citi- lished in 1802. In the years that followed, zenship that some historians contend the Founders continued to associate an that “the most basic purpose of Amer- educated populace with a secure union. ica’s schools is to teach children the moral Motivating George Washington’s argu- and intellectual responsibilities of living ment for a national university, for example, and working in a democracy.”3 Consis- was his belief that tent with this view, Americans “have the assimilation of the principles, opinions, expected schools to prepare future citi- and manners of our country-men by the zens, nurturing in children loyalty and common education of a portion of our common values and forging from them a youth from every quarter well deserves strong national character.”4 Among the attention. The more homogenous our citi- implications of these arguments is the zens can be made in these particulars the notion that the classroom is both the greater will be our prospect of permanent training ground for democracy and the union; and a primary object of such a incubator of its leaders.

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national institution should be the education pre½gure the enactment of such landmark Kathleen of our youth in the science of government. legislation as the 1862 Morrill Act, which Hall Jamieson gave each state federal land to establish “In a republic,” the father of the nation land grant colleges, and the 1965 Elemen- asked, “what species of knowledge can be tary and Secondary Education Act (esea), equally important and what duty more which gave public schools federal assis- pressing on its legislature than to patron- tance and oversight. ize a plan for communicating it to those The importance of schooling was mag- who are to be the future guardians of the ni½ed by the young country’s impulse to liberties of the country?”8 turn away from primogeniture and entail. In a like vein, Thomas Jefferson included “The English laws concerning the trans- public education, along with roads, rivers, mission of property were abolished in and canals, in a list of “objects of public almost all the States at the time of the improvement as it may be thought proper Revolution,” noted Alexis de Tocqueville. to add to the constitutional enumeration “The law of entail was so modi½ed as not of Federal powers.”9 Drawing a similar materially to interrupt the free circulation connection between education and the of property. . . . [T]he families of the great productive exercise of citizenship, Presi- landed proprietors are almost all com- dent James Madison argued in his second mingled with the general mass. . . . The last annual message: trace of hereditary ranks and distinctions I . . . invite your attention to the advantages is destroyed.”11 of superadding [sic] to the means of educa- Unsurprisingly, the educational system tion provided by the several States a semi- that ultimately developed in the United nary of learning instituted by the National States bore the imprint of the country’s Legislature within the limits of their exclu- founding philosophy. If taken seriously, sive jurisdiction. . . . Such an institution, principles such as freedom of speech and though local in its legal character, would be of assembly and consent of the governed universal in its bene½cial effects. By enlight- should be construed as inviting education ening the opinions, by expanding the patri- of the many. The need for public schools otism, and by assimilating the principles, was also driven by the extension of voting the sentiments, and the manners of those rights, ½rst beyond the propertied class who might resort to this temple of science, and, eventually, to African Americans and to be redistributed in due time through women. “Education must be universal,” every part of the community, sources of argued Horace Mann. “It is well, when jealousy and prejudice would be dimin- the wise and the learned discover new ished, the features of national character truths; but how much better to diffuse would be multiplied, and greater extent the truth already discovered, amongst the given to social harmony. But, above all, a multitude. . . . With us, the quali½cation of well-constituted seminary in the center of voters is as important as the quali½cation the nation is recommended by the consid- of governors, and even comes ½rst, in the eration that the additional instruction natural order.”12 And as the country emanating from it would contribute not faced the challenge of absorbing waves of less to strengthen the foundations than to immigrants during the turbulent Gilded adorn the structure of our free and happy Age and Progressive Era, educators came system of government.10 to see public schools “as helping different groups assimilate into American culture These presidential encomia to the indis- and society.”13 “For many generations of pensable role of education in a democracy

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The immigrants,” write historian of education evidences of his religion, the history of Challenges Diane Ravitch and public policy expert his country, and the leading features of its Facing Civic 20 Education Joseph Viteritti, “the common school was Constitution.” The state of affairs we in the 21st the primary teacher of patriotism and assume today had its roots in arguments Century civic values.”14 made by such champions of education as Unlike its European counterpart, the Pennsylvania’s Thaddeus Stevens, who U.S. educational system “reflected the told that state’s House of Representatives: ideal of equality,” an aspiration expressed If then, education be of admitted impor- in the notion of “educational opportunity tance to the people under all forms of gov- for all regardless of wealth and ability.”15 ernments; and of unquestioned necessity Still, the country was more than a half- when they govern themselves, it follows, of century old before “real efforts to achieve course, that its cultivation and diffusion is universal opportunities for education” a matter of public concern; and a duty which were undertaken. And “[e]ven after the every government owes to its people.21 1840s . . . most boys could not expect to attend school for more than a few years, Because views such as Jefferson’s and and girls could hardly hope to attend at Stevens’s won the day, “[o]ver 49 million all.”16 The extent to which the country students” headed “to approximately failed to realize its ideals was evident in the 99,000 public elementary and secondary fact that, when the Fourteenth Amend- schools for the fall 2011 term” at an esti- ment was adopted in 1868, common tax- mated one-year cost of $525 billion.22 supported schooling had not yet taken On the role of schooling in inculcating hold in the South, and the education of the values of citizenship, contemporary those identi½ed as “Negroes” was still presidents share the Founders’ views. forbidden by law in some states.17 Thus, for example, President Ronald Those who feared an empowered rabble Reagan noted, “Since the founding of challenged the notion that universal edu- this Nation, education and democracy cation would bene½t both the individual have gone hand in hand.”23 Similarly, and the country. On the other side of the President George W. Bush observed, “A argument, Jeffersonians echoed the sen- love of democratic principles must be timents of the author of the Declaration taught.”24 And President Bill Clinton of Independence, who noted that “[i]f a challenged “all our schools to teach char- nation expects to be ignorant and free in acter education, to teach good values and a state of civilization, it expects what never good citizenship.”25 was and never will be.”18 Whereas Jeffer- son envisioned an “aristocracy of worth In the past decade, a number of major and genius,”19 the worriers forecast that initiatives have concentrated on enhanc- the combination of widespread schooling ing educational quality at the elementary and its corollary, expanded suffrage, and secondary levels. Signed into law in would vest elected power in those least– January 2002, the No Child Left Behind rather than best–suited to govern. Act (nclb) focused on increased student In the contest over these competing pro½ciency in language arts and mathe- worldviews, Jefferson’s prevailed. “In matics. In 2007, nclb added student New England,” Tocqueville noted in pro½ciency in science to its goals. In light 1838, “every citizen receives the elemen- of the long-lived perception that educa- tary notions of human knowledge; he is tion should increase civic knowledge and taught, moreover, the doctrines and the enhance the capacities of citizenship, it is

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surprising that Title I of nclb did not list American democracy; an understand- Kathleen civic education as a priority. ing and awareness of public and com- Hall Jamieson That omission is seen by some as a sign munity issues; an ability to obtain that other priorities have displaced civic information when needed; a capacity education on the public agenda. Reform- to think critically; and a willingness to ers have been motivated by concerns that enter into dialogue with others about civic education is not as central to public different points of view and to under- schooling as it once was. They worry that stand diverse perspectives. They are tol- the standards movement may have inad- erant of ambiguity and resist simplistic vertently made the delivery of high-qual- answers to complex questions. ity civic education more dif½cult. The • Participate in their communities. They be- largest group responding to both of these long to and contribute to groups in civil concerns is the Civic Mission of the society that offer venues for Americans Schools (cms) Coalition.26 to participate in public service, work In response to low levels of voting and together to overcome problems, and civics knowledge among the young, in pursue an array of cultural, social, polit- 2003 Carnegie Corporation of New York ical, and religious interests and beliefs. released The Civic Mission of Schools report27 and created the Campaign for the • Act politically. They have the skills, Civic Mission of Schools, “a coalition of knowledge, and commitment needed 40 organizations committed to improving to accomplish public purposes–for the quality and quantity of civic learning instance, by organizing people to in American schools.” Both the 2003 address social issues, solving problems report and its 2011 follow-up, Guardian of in groups, speaking in public, petition- Democracy: Civic Mission of Schools,28 pro- ing and protesting to influence public posed agendas for action. Among the policy, and voting. Campaign’s goals, along with college and • Have moral and civic virtues. They are con- career preparation, is reestablishing civic cerned for the rights and welfare of learning as one of the three principal pur- others, and are socially responsible, poses of American education. The cms willing to listen to alternative perspec- Coalition now includes more than sixty tives, and con½dent in their capacity to participating organizations and individu- make a difference.29 als representing groups concerned with civic learning, general education, civic Since its inception in 2003, cms has: engagement, policy-making, civil rights, • Developed state-level campaign coali- and business. tions in each state. The 2003 Civic Mission of Schools report argued that schools should not only “help • Developed an online database of more young people acquire and learn to use the than two hundred civic-learning prac- skills, knowledge, and attitudes that will tice examples. The Civic Learning On- prepare them to be competent and respon- Line database contains best-practice sible citizens throughout their lives” but examples of each of the six promising also work to ensure that students: civic-learning practices of the Civic Mis- sion of Schools report. • Are informed and thoughtful. They have a grasp and an appreciation of history • Helped the cms state af½liates pass and the fundamental processes of nearly seventy pieces of supportive state

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The legislation in thirty-½ve states during tion President Chester E. Finn, Jr., laid the Challenges the 2004 to 2010 legislative sessions. failures of social studies at the feet of the Facing Civic social studies establishment: Education • in the 21st Conducted a study of schools and school Century districts around the nation that are Evidence also accumulated that, in the ½eld meeting their civic mission through of social studies itself, the lunatics had taken employment of the six promising prac- over the asylum. Its leaders were people who tices of the Civic Mission of Schools report. had plenty of grand degrees and impressive titles but who possessed no respect for West- • Participated in efforts to create common ern civilization; who were inclined to view standards for social studies education. America’s evolution as a problem for humanity rather than mankind’s last, best hope; lements of this reform agenda are con- E who pooh-poohed history’s chronological troversial. As education scholars Wayne and factual skeleton as somehow “privileg- Ross and Perry Marker argue, “[R]eform ing” elites and white males over the poor and efforts have brought to the fore the pri- oppressed; who saw the study of geography mary tensions in the ½eld of social studies: in terms of despoiling the rain forest rather 1) the relative emphasis on the cultural than locating London or the Mississippi heritage of the dominant society versus River on a map; who interpreted “civics” as the development of critical thought; and consisting largely of political activism and 2) conflicting conceptions of citizenship, “service learning” rather than understand- that is, citizenship for social reproduc- ing how laws are made and why it is impor- tion or social reconstruction.”30 It is not tant to live in a society governed by laws.33 dif½cult to imagine political progressives favoring the development of “critical Evidence from a 2010 survey of social thought” and “social reconstruction” and studies teachers calls Finn’s assessment conservatives championing the cultural into question. In a national random sam- heritage of the dominant society and citi- ple of 866 public high school teachers and zenship for social reproduction. Political an oversample of 245 Catholic and private scientist Amy Gutmann provides a fair high school instructors, 83 percent viewed summary of the key points of disagree- the United States “as a unique country ment when she writes: that stands for something special in the world”; 82 percent thought pupils should The ½rst issue is whether civic education be taught to “respect and appreciate their that is publicly mandated must be minimal country but know its shortcomings”; and so that parental choice can be maximal. only 1 percent wanted students to learn The second issue concerns the way in “that the U.S. is a fundamentally flawed which publicly subsidized schools should country.”34 respond to the increasingly multicultural The ideological tensions at play here character of societies. The third issue is were also on display in the early 1990s, whether democratic education should try when those attempting to develop nation- to cultivate cosmopolitan or patriotic sen- 31 al guidelines for the teaching of Ameri- timents among students. can history faced off against critics, The heat generated by the controversy including National Endowment for the over content is evident in the Thomas B. Humanities Chair Lynne Cheney, over Fordham Institute’s 2003 publication the balance between focusing on past Where Did Social Studies Go Wrong?32 In the injustices and on narratives centered on foreword to that work, Fordham Founda- traditional historical ½gures.

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In the broad sweep of things, efforts to cut it. As the Guardian of Democracy report Kathleen expand the focus of textbooks have suc- notes, “In social studies standards revi- Hall Jamieson ceeded. As a result of challenges to tradi- sions . . . most states have added to the tional accounts that excluded the struggles amount of material to be covered, rather of blacks and women, for example, the than developing fewer and clearer stan- content of social studies texts has changed dards that encourage an understanding remarkably over the past half-century. In of the vital importance of citizen engage- the 1940s, for example, Dred Scott was ment in our democracy.”41 the only black individual featured more Recognizing the problem, in June 2010 than once; by the 1960s, and even more so the National Governors Association Cen- by the 1980s, texts contained a notable ter for Best Practices and the Council of amount of multicultural and feminist Chief State School Of½cers released a set content.35 Increasingly, textbook pub- of state-led education standards designed lishers have incorporated the aspiration to reduce the number and increase the that “students can learn about multiple quality of the standards set in math and viewpoints and competing narratives.”36 science. Since then, forty-seven states Still, clashes among competing views have agreed to implement the Common of social studies are so intense that edu- Core State Standards in those two sub- cation scholar Ronald Evans has labeled jects. Although acceptance by the states them the “social studies wars.”37 was voluntary, President Barack Obama’s Department of Education accelerated Even though social studies was ignored adoption by making it a criterion for in nclb, states have standardized their entry into the federal Race to the Top civics curricula “as part of the sweeping education grant competition. trend toward greater teacher account- Push back against the standards took ability and systemized decision mak- two very different forms. Some argued ing.”38 Since 1989, when a national edu- that the math standards were problemat- cation summit convened by President ic because they were lower than those George H.W. Bush made the case for com- in place in high-achieving states such as mon standards, every state has developed Massachusetts.42 Others contended that standards of learning in curricular areas national standards would stifle innovation including social studies, which is de½ned in the states and constituted an unconsti- as the core academic area consisting of tutional expansion of federal authority.43 civics, history, economics, and geography. Motivated in part by the Albert Shanker Influencing these deliberations were the Institute’s influential 2003 study Educating two voluntary sets of social studies stan- Democracy: State Standards to Ensure a Civic dards developed by the National Council Core,44 reformers are now focused on for the Social Studies39 and the Center for clarifying the standards in social studies. Civic Education.40 The Shanker study found that standards However, as the states have revised their in many states consisted simply of a laun- standards over the years, benchmarks dry list of people, events, and dates to be have proliferated to the point that even memorized and therefore failed to devel- the most skilled teacher would have dif½- op civic competence and critical thinking. culty meeting them within the available In early 2010, the cms coalition and the class time. In short, rather than improving National Council for the Social Studies the state of civic education, the standards agreed to develop common state stan- movement may in some ways have under- dards in the social studies designed to

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The prepare students for informed and engaged those eligible, U.S. voter participation falls Challenges citizenship, and so they established a task far from the democratic ideal. Overall, the Facing Civic Education force to pursue that goal. Working with percentage that chooses to cast a ballot in in the 21st the states, the task force is charged with: U.S. elections compares unfavorably to Century that of many other developed countries. 1) Drafting, and agreeing on, the actual In general, for example, turnout in U.S. standards; elections is lower than in comparable 2) Identifying assessment instruments for ones in much of Europe and Canada. use with the standards; and Although balloting among eighteen to twenty-nine year olds increased in 2008, 3) Developing resources to help teachers it remained proportionately below that use the standards and assessments of other age groups. effectively. These data signal the importance of the To date, twenty-one states have joined the link between civics education and an effort to develop common state standards. inclination to act on the notion that voting is a citizen’s right and duty. In particular, Decades of scholarship suggest that completing a year’s worth of coursework civics classes and certain cocurricular in civics or American government heightens one’s propensity to vote by 3 to 6 per- activities help develop the civic skills, 48 transmit the knowledge, and inculcate the cent. Involvement in some forms of civic dispositions valorized by The Civic extracurricular activities and voluntary associations predicts increased balloting Mission of Schools. Speci½cally, schooling 49 in civics increases knowledge of our sys- as well. Programs that engage students tem of government and its history and in gathering and using information in laws; builds students’ con½dence in their political contexts both increase basic knowledge about our governmental sys- ability to exercise the prerogatives of cit- 50 izenship; and increases participation in tem and stimulate voting behavior. So, too, do course exercises that involve news- the community and in governments, 51 including voting. In the presence of con- paper reading. Importantly, evidence trols for other factors that could affect drawn from the National Education Lon- civics knowledge, having taken classes in gitudinal Study correlates participation in student government with increased that subject predicts a command of cen- 52 tral concepts,45 an increase reflected in civic and political participation. These improved performance on the National ½ndings are consistent with those drawn Assessment of Educational Progress from the National Education Longitudi- (naep) test.46 Civics education also nal Study and the National Longitudinal heightens students’ con½dence in their Study of Adolescent Health that revealed ability to perform such participatory func- that high school students active in “youth 47 voluntary associations” are more politi- tions as writing a letter to Congress. 53 By increasing the representativeness cally engaged in adulthood. and perceived legitimacy of our system of Speci½c curricula have also yielded government as well as the accountability robust effects. A randomized ½eld exper- of its leaders, widespread citizen voting iment concluded that involvement “in protects democratic governance as surely Student Voices signi½cantly boosted stu- as lackluster civic participation jeopar- dents’ con½dence in their ability to make dizes it. With balloting in U.S. presidential informed political decisions, their knowl- contests hovering around 50 percent of edge about how to register to vote, and

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their belief that their vote matters.”54 Over the last half of the twentieth century, Kathleen Moreover, in a randomized controlled political scientists Michael Delli Carpini Hall Jamieson experiment, “participation in Facing His- and Scott Keeter observe, levels of politi- tory and Ourselves programs result[ed] in: cal knowledge changed little, a conclusion greater engagement in learning; increased made more remarkable by the fact that skills for understanding and analyzing education levels in the citizenry increased history; greater empathy and ethical markedly over that period.61 In practice, awareness; increased civic knowledge, this ½nding means that in the mid-1990s, skills, and dispositions; an improved abil- high school graduates’ knowledge was ity to recognize racism, anti-Semitism and about the same as that of high school other forms of bigotry in themselves and dropouts in the late 1940s; college gradu- in others; and reduced racist attitudes and ates of the mid-1990s were more or less self-reported ½ghting.”55 Some civics pro- comparable to high school graduates at grams, such as Kids Voting usa, have been the end of World War II.62 shown to create a trickle-up effect, not only Leaders of both political parties have increasing the knowledge level and civic joined prominent scholars in lamenting dispositions of the young but enhancing the fact that, according to the rigorous their parents’ political knowledge as well.56 standards set by the naep, a majority of Evidence also suggests that inclusion of our elementary and secondary students civics education in a curriculum may cor- are not pro½cient in civics. As President relate with a decreased dropout rate.57 Obama has noted, “The loss of quality In a similar vein, student involvement civic education from so many of our class- in service learning has produced civic rooms has left too many young Americans bene½ts. As the Corporation for National without the most basic knowledge of who and Community Service notes, “[T]he our forefathers are, or the signi½cance of state of youth volunteering is robust– the founding documents.” They were un- with 55% of youth participating in volun- aware of “the risks and sacri½ces made by teer activities each year–and . . . the level previous generations, to ensure that this of their volunteer commitment is directly country survived war and depression; related to the nature of the social institu- through the great struggles for civil, and tions with which they interact.”58 The social, and worker’s rights. It is up to us, Guardian of Democracy report adds, “Ser- then, to teach them.”63 vice learning is far more than community Consistent with this view, the 2006 service alone; high-quality service learn- naep concluded that 27 percent of twelfth ing experiences incorporate intentional graders were at a pro½cient level and 66 opportunities for students to analyze and percent at or above the basic level. solve community problems through the Although the 2010 naep64 found that the application of knowledge and skills.”59 average score for fourth graders was high- When well executed, service learning can er than it had been in either 1998 or 2006, have positive effects on civic knowledge there was no year-over-year improvement and engagement.60 in grades eight or twelve. And, overall, the performance levels of all three grades were Despite the fact that civic education unimpressive. “Twenty-seven percent of produces an array of positive outcomes, fourth-graders, 22 percent of eighth-grad- the citizenry’s current level of civic knowl- ers, and 24 percent of twelfth-graders edge is far from ideal, and the role of civic performed at or above the Pro½cient level education in schools is far from secure. in civics in 2010.”65

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The Not all of the news about students’ per- • Roughly one in four (23 percent) be- Challenges formance in civics is negative. By interna- lieved that when the Supreme Court Facing Civic Education tional standards, U.S. students hold their divides 5-4, the decision is referred to in the 21st own. In contrast to their subpar command Congress for resolution; 16 percent Century of math and science relative to other thought it needed to be sent back to the countries, on civic knowledge and skills lower courts.67 U.S. students fair reasonably well. When One can debate the importance of compared to students in other industrial- knowing the name of the Chief Justice of ized nations in an international study of the Supreme Court or the details of Paul twenty-eight democracies, American four- Revere’s ride, but there is little doubt that teen year olds performed at a higher level understanding such foundational con- than their counterparts in other democ- cepts as checks and balances and the racies.66 U.S. students also outperformed importance of an independent judiciary their international peers at the task of affects one’s other attitudes. Those be- interpreting media content such as polit- wildered by such basics as the branches ical cartoons. These data suggest that in of government and the concept of judi- satisfying its obligation to impart civics cial review are less likely to express trust knowledge and critical thinking skills, in the courts and, as trust declines, more the overall U.S. educational system may likely to say that courts are too powerful, be performing somewhat better than the that judges should be impeached or court systems in place in other democracies. jurisdiction stripped when unpopular The naep conclusion that many stu- rulings are issued, and that under some dents are not pro½cient in civics is consis- circumstances, it might simply be best to tent with the ½nding that the adult popu- abolish the Supreme Court. lation is ignorant of some basic concepts Not only does civics knowledge predict underlying our system of government. normatively desirable beliefs about the For example, in the past decade, surveys value of our existing structures of govern- conducted by the Annenberg Public Pol- ment,68 but heightened knowledge is tied icy Center have found that: to increased politically relevant activity • Only one-third of Americans could such as discussing politics and engaging name all three branches of govern- in the community.69 Overall, “[i]nformed ment; one-third could not name any. citizens are demonstrably better citizens . . . more likely to participate in politics, • Just over a third thought that the more likely to have meaningful, stable Founding Fathers intended for each attitudes on issues, better able to link their branch to hold a lot of power but for interests with their attitudes, more likely the president to have the ½nal say. to choose candidates who are consistent • Just under half of Americans (47 per- with their own attitudes, and more likely cent) knew that a 5-4 decision by the to support democratic norms, such as Supreme Court carries the same legal extending basic civil liberties to mem- weight as a 9-0 ruling. bers of unpopular groups.”70

• Almost a third mistakenly believed that a U.S. Supreme Court ruling could be As mentioned earlier, ½ve hurdles con- appealed. front those working to improve the quality and accessibility of civic education in the schools: 1) neither the federal government

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nor the states have made high-quality dents has declined. As the Guardian of Kathleen civics education a priority; 2) social studies Democracy report concludes: Hall Jamieson textbooks may not adequately convey the Until the 1960s, three courses in civics and knowledge or facilitate the development government were common in American of the skills required of an informed, high schools, and two of them (“civics” and engaged citizenry; 3) consequential dif- “problems of democracy”) explored the ferences in access and outcomes between role of citizens and encouraged students to upper- and lower-class students persist; discuss current issues. Today those courses 4) cutbacks in funding for schools make are very rare. What remains is a course on implementation of changes in any area of “American government” that usually spends the curriculum dif½cult; and 5) the polar- little time on how people can–and why ized political climate increases the likeli- they should–participate as citizens.75 hood that curricular changes will be cast as advancing a partisan agenda. Furthermore, class time devoted to civic There is a widespread belief among education appears to have declined in the social studies educators that “civic knowl- lower grades. Public policy scholar Mar- edge and inquiry” are “not validated” tin West’s comparison of Department of within the accountability system estab- Education Schools and Staf½ng Surveys lished by nclb.71 Other evidence under- from 1987–1988 to those from the years scores the conclusion that neither the fed- shortly after nclb was implemented eral government nor the states have made (2002–2004) showed a reduction in time high-quality civics education a priority. spent on social studies instruction in ele- Speci½cally, the systematic study of civics mentary schools.76 This ½nding has been in high school is not universal; fewer high amply corroborated.77 A re-analysis by school civics courses are now offered than circle (The Center for Information and in the past; the time devoted to teaching Research on Civic Learning and Engage- the subject in lower grades has been ment) not only con½rmed West’s results reduced; and most states do not require but went on to show that the reduction meaningful civics assessment. The 2010 began even before nclb was passed and naep found that “88% of fourth-graders continued after.78 On a more encouraging had teachers who reported emphasizing note, studies of instructional time spent politics and government to a small extent and credits earned in middle schools and or more in social studies classes.”72 Just high schools show either the same or over three-quarters of students said that increased attention to social studies com- they had learned about Congress in 2010. pared to past decades.79 And slightly fewer than seven in ten However, in a climate in which we sig- twelfth graders reported that they had nal what matters by testing it, compara- studied the U.S. Constitution in that year.73 tively few states require meaningful civics Signi½cantly, those who have taken a assessment. As of 2011, the Guardian of high school civics class are more likely to Democracy report noted that “only sixteen have a command of key constitutional states require meaningful assessment in concepts.74 However, proportionately the social studies–a number that has fewer students are now exposed to multi- declined in the past ½ve years as states ple civic education courses than in the have eliminated civics assessments.”80 past. Since the generation now in power In addition, social studies textbooks left high school, the number of civics and may not adequately convey the knowledge government courses completed by stu- or facilitate development of the skills

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The required of an informed, engaged citizen- Nonetheless, a survey of eighteen U.S. Challenges ry.The public as well as parents, teachers, government and civics textbooks conclud- Facing Civic Education and administrators agree about the sorts ed in 1987 that their tendency to avoid in the 21st of knowledge that one should gain in controversial topics “made them lifeless Century public schools. A 2003 Annenberg Public descriptions of the origins, structures, Policy Center survey of these groups and relationships of government,”82 a found that more than half agreed that it ½nding consistent with the one political is absolutely essential or very important scientists Richard Niemi and Jane Junn that fourth graders are able to: reached a decade later. “When we say that students have a ‘textbook’ knowledge of • Understand that the rules of the Amer- how government operates,” they noted, ican government are established in a document called the Constitution; what we mean is that they have a naïve view of it that glosses over the fact that • Give an example of a right protected by democratic politics is all about disagree- the Constitution; ment and the attempt to settle quarrels • Understand the meaning of American peacefully, satisfactorily, and in an orderly holidays such as the Fourth of July and manner. We believe that it is a disservice to Presidents’ Day; and students to let them think that government ideally operates without conflict, as if it • Identify important ½gures in American were possible to enact and administer laws history such as George Washington. that bene½t everyone and harm no one.83 More than six in ten respondents con- In addition to arguing that “controversial curred that eighth graders should be able issues should be discussed fairly and to: explicitly,” the reviewers in that 1987 study • Understand the idea of separation of recommended that texts change their powers in American government; focus “from imparting information to preparing students to become concerned • Identify all ½fty states on a map of the citizens.” Students need to learn the value United States; of public participation by becoming • Understand the effects of European set- involved, they concluded.84 Nearly two tlement of the United States on Native decades later, political theorist Stephen Americans; and Macedo and colleagues agreed that schools too often “teach about citizenship and • Understand the role of slavery in the government without teaching students history of the United States. the skills that are necessary to become The same proportions held that twelfth active citizens themselves.”85 Important- graders should: ly, human development scholars Judy Torney-Purta and Britt Wilkenfeld’s 2009 • Understand how immigration has shaped analysis of data from the iea Civic Edu- America at different points in history; cation Study found that “[s]tudents who • Be able to compare and contrast the U.S. experience interactive discussion-based economic system with those of other civic education (either by itself or in countries; and combination with lecture-based civic education) score the highest on the ‘21st • Know what differentiates a “liberal” Century Competencies,’ including work- from a “conservative” and understand ing with others (especially in diverse current American political debates.81

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groups) and knowledge of economic and in politics at all.”90 When a segment of Kathleen political processes.”86 the population does not comprehend the Hall Jamieson Consequential differences in access and political debate and lacks the wherewithal outcomes between upper- and lower-class to affect collective decision-making, it students persist. More worrisome than forfeits its access to political power, a low levels of aggregate naep scores are result that makes the political system indications that students from families of both less representative of the will of the lower socioeconomic status (ses) have whole and less democratic.91 fewer opportunities to engage in activities Underlying these ½ndings are two real- that stimulate voting and civic engage- ities. Given that, in general, non-Anglo ment, and they substantially underper- students live in economically disadvan- form those from upper ses families. taged school districts, they have access to Those high school students who attend a lower quality education overall.92 And “higher ses schools, those who are col- children in higher income families are lege-bound, and white students get more more likely to live in educationally en- of these opportunities than low-income riched homes. Thus, for example, “[i]n students, those not heading to college, the period from 1972 to 1973, high income and students of color.”87 families spent about $2,700 more per year The twinned side of that reality is rep- on child enrichment than did low- resented in the 2010 naep Civics Assess- income families. By 2005 to 2006, this ment’s report of signi½cant disparities in gap had nearly tripled, to $7,500.”93 scores by family income and parents’ As states face the need to balance their level of education. Whereas at the fourth- budgets in a time of higher-than-average grade level only 10 percent of students unemployment and lower-than-expected eligible for free or reduced lunch scored revenues, school budgets in K-12 educa- at the pro½cient level and just 40 percent tion are experiencing new pressures. It is were at a basic or higher level, that ½gure unlikely that there will be increased fund- rose to 60 percent and 90 percent, respec- ing for underperforming schools or that tively, for those fourth graders not eligi- extra attention will be paid to any con- ble for the lunch program. At the twelfth- tent not evaluated by high-stakes tests. In grade level, students whose parents failed particular, as the Center on Budget Policy to graduate from high school were signi½- and Priorities reports, a majority of U.S. cantly less likely to be pro½cient (8 per- states funded their public elementary cent pro½cient/33 percent at least basic) and secondary schools at a lower level in than those whose parents graduated from 2012 than they had in 2011.94 college (40 percent pro½cient/75 percent All these challenges are of course com- basic).88 pounded by the fact that the polarized In practice these disparities translate into political climate all but ensures that cur- a political penalty for the already disad- ricular changes will be cast as advancing vantaged.89 As political theorist William a partisan agenda. Galston notes, “[C]itizens with low levels of information cannot follow public Although it is uncontroversial to sug- discussion of issues, are less accepting of gest that civic education is a means of the give and take of democratic policy advancing the well-being of the nation debates, make judgments on the basis of and realizing its democratic ideals, in character rather than issues, and are recent decades concern has been elicited signi½cantly less inclined to participate by low levels of voting and inadequate

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The student performance on civics assessment participation in democratic activities such Challenges tests. Reformers have responded with as voting. However, the challenges con- Facing Civic Education efforts both to increase the amount and fronting these reform efforts are substan- in the 21st quality of time spent teaching civic edu- tial–ranging from reestablishing the cen- Century cation and to create focused common trality of civics education to attempting to standards in the social studies.95 Under- institute changes at a time when school scoring the importance of these efforts budgets are being cut and our political cul- are data associating civics education writ ture is increasingly polarized. As a result, large with increased knowledge of the any discussion of ways to inculcate civic U.S. system of government and increased identity will be controversial.

endnotes 1 John Dewey, The School and Society (Chicago: University of Chicago Press, 1900). 2 Diane Ravitch and Joseph P. Viteritti, Making Good Citizens: Education and Civil Society (New Haven, Conn.: Yale University Press, 2001), 5. 3 Linda Darling-Hammond and Jacqueline Ancess, “Democracy and Access to Education,” in Democracy, Education, and the Schools, ed. Roger Soder (San Francisco: Jossey-Bass, 1996), 151–181. 4 Julie A. Reuben, “Patriotic Purposes: Public Schools and the Education of Citizens,” in Amer- ican Institutions of Democracy: The Public Schools, ed. Susan Fuhrman and Marvin Lazerson (New York: Oxford University Press, 2005), 1. 5 Carl H. Gross and Charles C. Chandler, “Introduction,” The History of American Education Through Readings, ed. Carl H. Gross and Charles C. Chandler (Boston: D.C. Heath and Com- pany, 1964). 6 Quoted in William Kent Gilbert, “History of the College and Academy of Philadelphia,” in The History of American Education Through Readings, ed. Gross and Chandler, 24–25. The essay was ½rst printed in Philadelphia in January 1751 and later in 1863. 7 Gerald L. Gutek, Education in the United States: An Historical Perspective (Englewood Cliffs, N.J.: Prentice-Hall, 1986), 30. 8 George Washington, “Eighth Annual Message,” December 7, 1796. See John T. Woolley and Gerhard Peters, The American Presidency Project at uc Santa Barbara, Santa Barbara, Cali- fornia, http://www.presidency.ucsb.edu/ws/?pid=29438. 9 Thomas Jefferson, “Sixth Annual Message,” December 2, 1806. See Woolley and Peters, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=29448. 10 James Madison, “Second Annual Message,” December 5, 1810. See Woolley and Peters, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=29452. 11 Alexis de Tocqueville, Democracy in America, vol. 1, 3rd ed. (Cambridge: Sever and Francis, 1863), 63–64. 12 Horace Mann, Lectures and Annual Reports on Education (Boston: Wm. B. Fowle and N. Capen, 1845), 55. 13 Reuben, “Patriotic Purposes,” in American Institutions of Democracy, ed. Fuhrman and Lazerson, 13. 14 Ravitch and Viteritti, Making Good Citizens, 5. 15 Ibid.

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16 Edward J. Power, Education for American Democracy: Foundations of Education (New York: Kathleen McGraw-Hill, 1965), 28. Hall Jamieson 17 See the Supreme Court holding in Brown v. Board of Education (1954) for a description of the state of education in the South at that earlier time. 18 Ronald Reagan, “Remarks at the Swearing-In Ceremony for James H. Billington as Librarian of Congress,” September 14, 1987. See Woolley and Peters, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=34792. 19 Roy J. Honeywell, The Educational Work of Thomas Jefferson (Cambridge, Mass.: Harvard Uni- versity Press, 1931), 9. 20 Alexis de Tocqueville, Democracy in America (New York: George Adlard, 1838), 297. 21 “Speech of Hon. Thaddeus Stevens, April 1835,” The Pennsylvania School Journal, ed. Thomas H. Burrows, vol. XIV (Lancaster, Penn.: Wm. B. Wiley, 1866), 23. 22 http://nces.ed.gov/fastfacts/ (accessed November 12, 2011). 23 Anthony Lutkus and Andrew R. Weiss, “The Nation’s Report Card: Civics 2006,” nces 2007–476 (Washington, D.C.: National Center for Education Statistics, Institute of Education Sciences, U.S. Department of Education, May 2007), http://nces.ed.gov/nationsreportcard/ pubs/main2006/2007476.asp. 24 George W. Bush, “Remarks Announcing the Teaching American History and Civic Education Initiatives,” September 17, 2002. See Woolley and Peters, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=64688. 25 William J. Clinton, “Address Before a Joint Session of the Congress on the State of the Union,” January 23, 1996. See Woolley and Peters, The American Presidency Project, http://www .presidency.ucsb.edu/ws/?pid=53091. 26 In November 2011, the Annenberg Public Policy Center, which I direct, became both the chief funder and the institutional home of the Civic Mission of Schools project. 27 The Civic Mission of Schools (New York: Carnegie Corporation of New York and circle: The Center for Information and Research on Civic Learning and Engagement, 2003), http:// civicmission.s3.amazonaws.com/118/f7/1/172/2003_Civic_Mission_of_Schools_Report.pdf. 28 Jonathan Gould, ed., Guardian of Democracy: The Civic Mission of Schools (Philadelphia: The Leonore Annenberg Institute for Civics of the Annenberg Public Policy Center at the Univer- sity of Pennsylvania, and the Campaign for the Civic Mission of Schools, 2011), http:// civicmission.s3.amazonaws.com/118/f0/5/171/1/Guardian-of-Democracy-report.pdf. 29 The Civic Mission of Schools. 30 E. Wayne Ross and Perry M. Marker, “Social Studies: Wrong, Right, or Left? A Critical Response to the Fordham Institute’s Where Did Social Studies Go Wrong?” The Social Studies 96 (4) (July–August 2005): 139. 31 Amy Gutmann, Democratic Education, with a new preface and epilogue (Princeton, N.J.: Princeton University Press, 1999), 292. 32 James S. Leming, Lucien Ellington, and Kathleen Porter, eds., Where Did Social Studies Go Wrong? (Washington, D.C.: Thomas B. Fordham Foundation, 2003), http://www.edexcellence.net/ publications/wheredidssgowrong.html. 33 Chester E. Finn, Jr., “Foreword,” in Where Did Social Studies Go Wrong?, ed. Leming, Ellington, and Porter. 34 Frederick M. Hess, Gary J. Schmitt, Cheryl Miller, and Jenna M. Schuette, High Schools, Civics, and Citizenship: What Social Studies Teachers Think and Do (Washington, D.C.: American Enterprise Institute, September 2010), 1.

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The 35 Robert Lerner, Althea K. Nagai, and Stanley Rothman, Molding the Good Citizen: The Politics of Challenges High School History Texts (Westport, Conn.: Praeger, 1995), 71. Facing Civic Education 36 Mary Frederickson, “Surveying Gender: Another Look at the Way We Teach United States in the 21st History,” The History Teacher 37 (4) (August 2004): 476. Century 37 Ronald W. Evans, The Social Studies Wars: What Should We Teach the Children? (New York: Teachers College Press, 2004). 38 Wayne Journell, “Standardizing Citizenship: The Potential Influence of State Curriculum Standards on the Civic Development of Adolescents,” PS: Political Science and Politics 43 (2) (April 2010): 351. 39 http://www.ncss.org/. 40 http://new.civiced.org/. 41 Gould, Guardian of Democracy, 29–30. 42 “Common Core Standards Still Don’t Make the Grade but Massachusetts and California Do!” Education News, September 16, 2010, http://www.educationnews.org/ed_reports/thinks _tanks/100142.html (accessed November 29, 2011). 43 “Closing the Door on Innovation: Why One National Curriculum is Bad for America,” May 2011, http://www.k12innovation.com/Manifesto/_V2_Home.html (accessed November 29, 2011). 44 Paul Gagnon, Educating Democracy: State Standards to Ensure a Civic Core (Washington, D.C.: The Albert Shanker Institute, 2003). 45 See also James Gimpel, J. Celeste Lay, and Jason Schuknecht, Cultivating Democracy: Civic Environments and Political Socialization in America (Washington, D.C.: Brookings Institution, 2003); The California Campaign for the Civic Mission of Schools, The California Survey of Civic Education (Los Angeles: Constitutional Rights Foundation, 2005), http://www.cms-ca .org/civic_survey_½nal.pdf. 46 Richard G. Niemi and Jane Junn, Civic Education: What Makes Students Learn (New Haven, Conn.: Yale University Press, 1998), 145. 47 Compare Melissa K. Comber, “Civics Curriculum and Civic Skills: Recent Evidence,” circle Fact Sheet, November 2003, http://www.civicyouth.org/fact-sheet-civics-curriculum-and -civic-skills-recent-evidence. 48 Jennifer Bachner, “From Classroom to Voting Booth: The Effect of High School Civic Educa- tion on Turnout,” working paper, Harvard University, Cambridge, Massachusetts, May 23, 2010, http://www.gov.harvard.edu/½les/uploads/CivEdTurnout_1.pdf. 49 Reuben Thomas and Daniel McFarland, “Joining Young, Voting Young: The Effects of Youth Voluntary Associations on Early Adult Voting,” circle Working Paper 73, August 2010, http://www.civicyouth.org/featured-extracurricular-activities-may-increase-likelihood-of -voting. 50 Patrick Meirick and Daniel Wackman, “Kids Voting and Political Knowledge,” Social Science Quarterly 85 (5) (2004); Amy K. Syvertsen, Michael D. Stout, and Constance A. Flanagan, with Dana L. Mitra, Mary Beth Oliver, and S. Shyam Sundar, “Using Elections as Teachable Moments: A Randomized Evaluation of the Student Voices Civic Education Program,” American Journal of Education 116 (2009): 33–67. 51 Tim Vercellotti and Elizabeth Matto, “The Classroom-Kitchen Table Connection: The Effects of Political Discussion on Youth Knowledge and Ef½cacy,” circle Working Paper 72, August 2010, http://www.civicyouth.org/featured-the-classroom-kitchen-table-connection -the-effects-of-political-discussion-on-youth-knowledge-and-ef½cacy/. 52 Alberto Dávila and Marie Mora, “Civic Engagement and High School Academic Progress: An Analysis Using nels Data,” circle Working Paper 52, January 2007, http://www.civicyouth

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.org/circle-working-paper-52-civic-engagement-and-high-school-academic-progress-an Kathleen -analysis-using-nels-data. Hall Jamieson 53 Daniel McFarland and Reuben Thomas, “Bowling Young: How Youth Voluntary Associations Influence Adult Political Participation,” American Sociological Review 71 (2006). 54 Syvertsen et al., “Using Elections as Teachable Moments.” 55 Dennis Barr, “Continuing a Tradition of Research on the Foundations of Democratic Edu- cation: The National Professional Development and Evaluation Project” (Brookline, Mass.: Facing History and Ourselves, 2010), http://www.facinghistory.org/system/½les/Continuing _a_Tradition_v93010_0.pdf. 56 Michael McDevitt, “The Civic Bonding of School and Family: How Kids Voting Students Enliven the Domestic Sphere,” circle Working Paper 7, July 2003, http://www.civicyouth .org/circle-working-paper-07-the-civic-bonding-of-school-and-family-how-kids-voting -students-enliven-the-domestic-sphere; Michael McDevitt and Steven Chaffee, “Second Chance Political Socialization: ‘Trickle-up’ Effects of Children on Parents,” in Engaging the Public: How Government and the Media Can Reinvigorate American Democracy, ed. Thomas J. Johnson, Carol E. Hays, and Scott P. Hays (Lanham, Md.: Rowman & Littleﬁeld, 1998), 57–66. 57 Charlane Fay Starks, “Connecting Civic Education to Civil Right and Responsibility: A Strat- egy for Reducing Dropout Among African American Students,” master’s thesis, California State University, Sacramento, 2010, http://csus-dspace.calstate.edu/handle/10211.9/512. 58 Corporation for National and Community Service, http://www.nationalservice.gov/about/ role_impact/performance_research.asp (accessed September 12, 2011). 59 Guardian of Democracy, 33. 60Shelley Billig, Sue Root, and Dan Jesse, “The Impact of Participation in Service-Learning on High School Students’ Civic Engagement,” circle Working Paper 33, May 2005, http:// www.civicyouth.org/PopUps/WorkingPapers/WP33Billig.pdf. 61 Michael X. Delli Carpini and Scott Keeter, What Americans Know About Politics and Why It Matters (New Haven, Conn.: Yale University Press, 1996), 197–198. 62 Ibid. 63 “Barack Obama’s Speech in Independence, Mo.,” The New York Times, June 30, 2008. 64 National Center for Education Statistics, “The Nation’s Report Card: Civics 2010,” nces 2011–466 (Washington, D.C.: Institute of Education Sciences, U.S. Department of Educa- tion, 2011). The naep in Civics (2010) was based on “nationally representative samples of about 7,100 fourth-graders, 9,600 eighth-graders, and 9,900 twelfth-graders. . . . At each grade, students responded to questions designed to measure the civics knowledge and skills that are critical to the responsibilities of citizenship in America’s constitutional democracy.” 65 Ibid. 66 Judith Torney-Purta, Rainer Lehmann, Hans Oswald, and Wolfram Schulz, Citizenship and Education in Twenty-Eight Countries: Civic Knowledge and Engagement at Age Fourteen (Amster- dam: International Association for the Evaluation of Educational Achievement, 2001). 67 Kathleen Hall Jamieson and Bruce Hardy, “Will Public Ignorance and Partisan Election of Judges Undermine Public Trust in the Judiciary?” Dædalus 137 (4) (Fall 2008); Kathleen Hall Jamieson and Michael Hennessy, “Public Understanding of and Support for the Courts,” The Georgetown Law Journal 95 (4) (2007): 899–902. 68 Ibid. 69 Henry Milner, “The Informed Political Participation of Young Canadians and Americans,” circle Working Paper 60, May 2006, http://www.civicyouth.org/PopUps/WorkingPapers/ WP60Milner.pdf. 70 Delli Carpini and Keeter, What Americans Know about Politics and Why It Matters, 272.

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The 71 Lisa Winstead, “The Impact of nclb and Accountability on Social Studies Teacher Experi- Challenges ences and Perceptions about Teaching Social Studies,” The Social Studies 102 (2011): 221. Facing Civic Education 72 National Center for Education Statistics, “The Nation’s Report Card: Summary of Major in the 21st Findings” (Washington, D.C.: Institute of Education Sciences, U.S. Department of Education, Century 2010), http://www.nationsreportcard.gov/civics_2010/summary.asp. 73 Ibid. 74 Jamieson and Hardy, “Will Public Ignorance and Partisan Election of Judges Undermine Public Trust in the Judiciary?”; Jamieson and Hennessy, “Public Understanding of and Sup- port for the Courts,” 899–902. 75 “Talking Points on the Need to Restore the Civic Mission of Schools,” Center for Civic Edu- cation, 2009, http://www.civiced.org/index.php?page=talking_points. 76 Martin West, “Testing, Learning, and Teaching: The Effects of Test-Based Accountability on Student Achievement and Instructional Time in Core Academic Subjects,” in Beyond the Basics: Achieving a Liberal Education for All Children, ed. Chester E. Finn, Jr., and Diane Ravitch (Washington, D.C.: Thomas B. Fordham Institute, 2007), 45–61. 77 Peter Levine, Mark H. Lopez, and Karlo B. Marcelo, Getting Narrower at the Base: The American Curriculum after NCLB (Medford, Mass.: circle: The Center for Information and Research on Civic Learning and Engagement, 2008), 6, 12; Jennifer McMurrer, Instructional Time in Elementary Schools: A Closer Look at Changes for Speci½c Subjects (Washington, D.C.: Center on Education Policy, February 2008); Claud von Zastrow with Helen Janc, Academic Atrophy: The Condition of the Liberal Arts in America’s Public Schools (Washington, D.C.: Council for Basic Education, 2004). 78 Levine, Lopez, and Marcelo, Getting Narrower at the Base. 79 Ibid., 1; McMurrer, Instructional Time in Elementary Schools, 11; Von Zastrow with Janc, Academic Atrophy, 8. 80 National Center for Learning and Citizenship, Education Commission of the States, Citizenship Education Database of State Civic Education Policies, http://ncoc.net/Promoting-Civic -Learning-Assessment-CMS; Guardian of Democracy. 81 Thomas Romer, Kathleen Hall Jamieson, and Bruce Hardy, “The Role of Public Education in Educating for Democracy,” in The Annenberg Democracy Project, A Republic Divided (New York: Oxford University Press, 2007), 12–13. 82 Stephen Macedo et al., Democracy at Risk: How Political Choices Undermine Citizen Participation and What We Can Do About It (Washington, D.C.: Brookings Institution, 2005), 33. 83 Niemi and Junn, Civic Education, 150. 84 James D. Carroll et al., “We the People: A Review of U.S. Government and Civics Textbooks,” Education Resources Information Center Report ed288761 (Washington, D.C.: People for the American Way, 1987). 85 Macedo et al., Democracy at Risk, 33. 86 Judith Torney-Purta and Britt S. Wilkenfeld, “Executive Summary,” in Paths to 21st Century Competencies Through Civic Education Classrooms: An Analysis of Survey Results from Ninth- Graders (Silver Spring, Md.: American Bar Association Division for Public Education and the Campaign for the Civic Mission of Schools Curriculum, October 2009), 1. 87 Joseph Kahne and Ellen Middaugh, “Democracy for Some: The Civic Opportunity Gap in High School,” circle Working Paper 59, February 2008, 2, http://www.civicyouth.org/circle -working-paper-59-democracy-for-some-the-civic-opportunity-gap-in-high-school/. 88 National Center for Education Statistics, “The Nation’s Report Card: Civics 2010.”

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89 Compare Sidney Verba, Kay Schlozman, and Henry Brady, Voice and Equality: Civic Volun- Kathleen tarism in American Politics (Cambridge, Mass.: Harvard University Press, 1995); S. Karthick Hall Ramakrishnan and Mark Baldasarre, The Ties that Bind: Changing Demographics and Civic Jamieson Engagement in California (San Francisco: Public Policy Institute of California, 2004). 90 William Galston, “Political Knowledge, Political Engagement, and Civic Education,” Annual Review of Political Science 4 (2001): 217–234, esp. 218. See also Samuel L. Popkin and Michael A. Dimock, “Political Knowledge and Citizen Competence,” in Citizen Competence and Dem- ocratic Institutions, ed. Stephen L. Elkin and Karol E. Soltan (University Park: Pennsylvania State University Press, 1999). 91 Compare Delli Carpini and Keeter, What Americans Know About Politics and Why It Matters, 3–4. 92 Jennifer Hochschild and Nathan Scovronick, “Demographic Change and Democratic Edu- cation,” in American Institutions of Democracy, ed. Fuhrman and Lazerson, 312. 93 Greg J. Duncan and Richard J. Murnane, “Introduction: The American Dream, Then and Now,” in Whither Opportunity: Rising Inequality, Schools, and Children’s Life Chances, ed. Greg J. Duncan and Richard J. Murnane (New York: Russell Sage, 2011), 11. 94 See “One Year (fy11–fy12) Percent Changes in State K-12 Formula Funding,” http://www .cbpp.org/cms/?fa=view&id=3569. 95 In November 2011, Representatives Tom Cole (R-Oklahoma) and Mike Honda (D-California) introduced hr 3464, the “Sandra Day O’Connor Civic Learning Act of 2011,” calling on the National Assessment Governing Board to provide disaggregated (or state-level) data from the naeps in civics and history. The proposed legislation also sets up a competitive grant program for civic learning at the U.S. Department of Education that, among other things, focuses on currently underserved school populations. There is also a competitive grant program for civic education in the “Harkin-Enzi” esea reauthorization bill, which is currently in play in the Senate.

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What is the Common Good? The Case for Transcending Partisanship

Mickey Edwards

Abstract: Even if most of us can agree on a de½nition of the “common good” (not a simple matter), there are substantial barriers to establishing public policies in accord with that agreement. The “democratic” element in our political system–the right of voters to choose the men and women who will create our laws–depends on the views of those voters being given considerable weight in determining eventual policy outcomes. Unfortunately, we have developed a political system–both in our elections and in the governing process–that gives disproportionate influence to relatively small numbers of voters (who are also the most partisan) and allows political parties through their closed procedures to limit the choices available to general election voters. Coupled with legislative rules that allow partisans to determine the makeup of legislative committees, the resulting process leaves the common good, however de½ned, a secondary consideration at best.

I have yet to meet a person who is consciously opposed to furthering the common good. This universal sentiment has practical relevance, however, only if there is substantial agreement as to what constitutes “the common good.” Are the collective good, the national good, and the majority good all MICKEY EDWARDS is a Vice Pres- the same? Good for whom? In the short term or ident of the Aspen Institute and the long term? Director of the Aspen Institute- Rape, murder, arson, reckless driving through Rodel Fellowships in Public Lead- crowded intersections: all provide ample room for ership. For sixteen years, he served widespread agreement and, as a consequence, com- as a member of the U.S. House of Representatives from Oklahoma. monly accepted proscriptions. There are signi½cant His publications include The Parties disagreements as to how each should be punished, versus the People: How to Turn Repub- debates about the practical and moral effects of licans and Democrats into Americans capital punishment or the extent to which mitigat- (2012), Reclaiming Conservatism: How ing circumstances ought to lessen the price society a Great American Political Movement exacts, but little dissent on the question of whether Got Lost–and How It Can Find Its the actual commission of the deed should be pun- Way Back (2008), and Winning the Influence Game: What Every Business ished. But what about telling a lie about another Leader Should Know about Govern- member of the community? What if that lie were ment (with Michael Watkins and to lower the esteem accorded that individual by Usha Thakrar, 2001). other members of the community? Could we not

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all agree that such an act should also be should be a suf½cient defense. The jury Mickey punished both because it undermines the agreed and Zenger was freed. Edwards fabric of social life and because it deval- By one de½nition of the common good, ues the life thereby damaged? Well, no. damaging the reputation of a high public In New York Times v. Sullivan (1964), the of½cial (in this case, an appointed repre- Supreme Court ruled that a lie, even if sentative of the King) undermined the damaging to the person lied about, is per- legitimacy of the government and harmed fectly acceptable (that is, not a punish- the cohesion and stability of the state. It able libel) if the spreader of the falsehood was clearly contrary to the common good is a journalist, unless (a) the perpetrator to allow such attacks to go unpunished. knew or should have known that the state- The opposing view held that the common ment was false, (b) the damages were good was best served by an unfettered substantial, and (c) the falsehood was mo- press, empowered to hold of½cials account- tivated by malicious intent. Please note able so long as what was said about them that the connective word is and, not or. If was true. The Sullivan case expanded the any of those elements were to be absent second view by concluding that the good –for example, if the person lied about of the community was further served by could not prove malicious intent–no suit allowing even untrue criticisms unless for libel would prevail. Clearly, it is not made with malicious intent. The Zenger bene½cial to society to have its members case was the principal step in creating a lied about, to have their characters de- distinctly American freedom of the press; meaned, to have their reputations dam- the Sullivan case severely compromised the aged based on a falsehood. How does that citizen’s right not to be defamed–and advance the common good? The Court both cases can be defended on the grounds found that the bene½t to society–the of serving a higher community good. common good–would best flow from the During George W. Bush’s presidency, a existence of a free press unconstrained by major policy quarrel ensued after the pub- fears of damaging repercussions in the lic became aware that persons detained event of error. It is a limitation imposed in the “war on terror” were being held in by weighing the harm to one against the captivity inde½nitely, with neither charges presumed bene½t to the larger communi- ½led against them nor an opportunity to ty of which he or she is a part. defend themselves. What’s more, it be- In 1735, John Peter Zenger, the publisher came known that the United States had of The New York Weekly Journal, was put on engaged in waterboarding and other forms trial for having published articles sharply of physical coercion in the process of in- critical of William Cosby, the Crown- terrogating captives. The common in com- appointed colonial governor. Under the mon good usually refers to the people of a laws of the time, simply the act of defam- single community–in this case, the United ing Cosby was suf½cient to sustain the States–and it could be argued that the charge. In addition, Zenger’s libel trial prisoners in question fell outside that de½- was presided over by a Chief Justice nition. But just as advocates and oppo- whom Cosby himself had appointed. nents of capital punishment debate the Zenger’s lawyer, Andrew Hamilton, in a effect of such punishment on the society bold move, argued Zenger’s case not to that employs it, the supporters and de- the bench but to the jury, claiming that tractors of the Bush administration’s in- because the assertions in Zenger’s articles terrogation policies argued whether the were largely based on fact, truth alone primary “common good” claim lay with

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The Case national security or with adhering to tra- cannot be denied even by a vote of thou- for Tran - ditional American values. (This country sands to one. scending Partisan - had, after all, argued forcefully during the To some extent, the fulcrum point in ship Nuremberg trials that the sanctioning of this balancing act is where conservatives torture was suf½cient grounds for putting and liberals divide. The problem is that German of½cials to death and had de- where emotion overrules analysis, where nounced China for its use of waterboard- outcome outweighs process, the sides ing, describing it as torture.) But, the Bush themselves become confused, and con- administration’s defenders answered, the servatives and liberals alike sometimes prisoners whose treatment was in ques- champion the right of the individual and tion were not “innocents” but enemies, sometimes the right of the collective to engaged in war against the United States, deny an individual a right to which he or even though no such charge had been made she might otherwise be entitled. There is nor the factual basis of such a claim tested. a confusing lack of consistency in deter- To that point, the administration’s defend- mining where the common good lies. ers asserted that to put such persons on This is true of adherents to the Republi- trial would pose risks to the nation’s se- can Party as well as adherents to the curity. Those on both sides of these argu- Democratic Party. And while it may be ments had in mind some clear perspec- argued that ideology (conservative or lib- tives as to which position better supported eral) is a more consistent indicator than the collective good of the American people. party af½liation, such is not always the case. The same distinctions arise in matters Even the aclu, which famously defended relating to taxes, spending, and the size and the right of Nazis to march in Skokie, Illi- scope of government. It was once thought nois, later cracked down on dissent within that an individual’s income was his or its own organization. hers to manage and to dispose of as that individual thought desirous; today it is With well-meaning and intelligent cit- often argued that leaving more money in izens divided in their concepts of the a citizen’s pocket, rather than taking it in common good, and a nation suf½ciently taxes, is a de facto taking of money from large that there might well be millions on the government (“how will we pay for the any side of the de½nitional divide, those reduced taxes?”). Proponents of each posi- who are empowered to make law and set tion believe they are arguing from a com- policy in a democratic society have only mon good perspective. Is the common three options available to them: they may good best served by ensuring “the greatest (a) side with the more numerous faction good for the greatest number” or by hon- (that is, majority rule); (b) take advantage oring the individuality–and the attendant of their own positions in government to rights–of each citizen? impose their own views, regardless of the Society is a collective, but its con- wishes of the citizens; or (c) ½nd a way stituent parts are individuals. Is the com- to forge a compromise between the common good determined by the weight of peting visions. Assuming that the majority numbers–the greater good for the view would not impinge on the constitu- greater number? If so, the framework of tional rights of the minority, the ½rst American government is fatally flawed option remains problematic because any since its operating premise is that the signi½cant changes in law or policy should individual (the component part, the cog have as much buy-in as possible; enthusi- in the societal machine) has rights that asm is not necessary but some degree of

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acceptance is if government policies are the most zealous and uncompromising Mickey not to be divisive and fuel resentment. of party loyalists, tends to weed out the Edwards The second option is contrary to the demo- “good government” candidates in favor cratic impulse. Edmund Burke was correct of a warrior class that sees politics not as in arguing that elected of½cials are not to a search for the common good but as be rubber stamps for their constituents a series of pitched battles to defeat the but should instead bring their own ex- “enemy” by any means possible. The gen- pertise, experience, and judgment to the eral electorate may desire compromise, decisions they make. But to ignore com- but to many of those who participate in pletely the wishes of citizens is to render the the partisan primaries that determine the concept of representation moot; account- choices available to voters in the general ability after the fact–removing a legisla- election, compromise is viewed not as a tor from of½ce–cannot undo the decision desirable process of working together but that prompted the retaliation. The wishes as selling out, an unforgivable abandon- of the people must at least be weighed in ment of principle. the decision-making process. That leaves The party primary system, ironically, the third option, compromise. And therein dates back to a major democratic reform is the problem. of the late 1800s and early 1900s, a Pro- Simply put, incentives work. If elected gressive Party initiative that established of½cials understand that the electorate primaries as an alternative to the prover- values compromise and problem-solving bial smoke-½lled rooms in which small and that working cooperatively with those groups of party insiders decided who on the other side of an issue will be re- would be put forth as a party’s nominees. warded with reelection and a long career, The reform opened the process, making it the degree of partisanship and incivility in much more democratic, but by ensuring Congress, state legislatures, city and county that the primaries would be dominated councils, and executive branch of½ces will by the most partisan and ideological vot- diminish. If, on the other hand, one’s suc- ers (the only ones likely to be motivated cess at the ballot box is dependent on con- enough to participate in these semi½nal veying intractability, political rigidity, rounds of an election), the power of the and antagonism toward competing view- bosses was eventually replaced by the points, many candidates for of½ce–and power of the ideologues. many elected of½cials–will be inclined to In today’s more frenetic environment, adopt those attitudes. People who run for with its diversions, polarizing mass media, of½ce and pursue political careers tend to and a citizenry woefully uneducated in be more ½rmly set in their ideas about civics, a popular congressman like Dela- government than their neighbors. There is ware’s Mike Castle can be kept off the little evidence that conservatives become general election ballot for a seat in the more liberal or liberals more conserva- U.S. Senate by a primary opponent who tive in pursuit of victory, but the election receives a mere thirty thousand votes in a process does determine which candidates state of nearly a million people. Or a pop- get elected in the ½rst place and the atti- ular incumbent senator like Robert Ben- tudes they bring with them into the pub- nett of Utah can be denied reelection by lic arena. two thousand votes in a closed party con- A political system like ours, in which vention in a state of nearly three million candidates must ½rst pass through the people. Those candidates who want to ½re of partisan primaries, dominated by avoid the same fate will inevitably be

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The Case under great pressure to adopt whatever al good may lie; the deciders have already for Tran - hard-line positions are required to pass decided. scending Partisan - through the party primary barrier–and Elected of½cials face other pressures to ship to remain ½rmly attached to those posi- remain ½rmly locked in a partisan camp. tions when they come up for reelection. In most states, congressional and state leg- Looking over their shoulders, Utah’s islative districts are shaped by whichever Orrin Hatch and Indiana’s Richard Lugar political party holds a majority of state moved noticeably to the right in anticipa- legislative seats. When population shifts tion of primary challenges in 2012 (Lugar necessitate a redrawing of district bound- lost anyway), and Maine’s Olympia Snowe aries (perhaps pitting incumbents of the decided to retire. Although it is most same party against each other, or deter- notable in the Republican Party, both mining which incumbents will be given major political parties have become en- more dif½cult districts in which to cam- gaged to some degree in this process of paign), party leaders will have both op- puri½cation, purging from their ranks portunity and means to reward loyalists those who think for themselves and whose and punish independent thinking. Run- conclusions diverge from those of the ning in a district with no serious likelihood activists who dominate the nomination of losing to a member of an opposing party, process. a candidate becomes even more depen- In addition to Castle and Bennett, Lisa dent on remaining in the good graces of Murkowski suffered the same fate in her members of his or her own party. “Stick- campaign for reelection to the Senate from ing with the team” becomes a matter of Alaska and narrowly won a write-in cam- political survival. Compelled by the pres- paign because having lost her primary sures of partisan redistricting to stick to she was not eligible to be listed on the the party line, elected of½cials are further November ballot (a result of the “sore discouraged from reaching across the aisle loser” laws which enable parties to con- to ½nd common ground or forging com- trol the election process). And years before, promises with members of another party. Democrat Joe Lieberman–who had been Members of Congress also gain impor- a state attorney general, U.S. senator, and tant reelection advantages if they are able his party’s vice presidential nominee– to secure positions on committees with was defeated for renomination by a liberal jurisdiction over matters of particular in- antiwar activist, Ned Lamont; fortunately terest to their constituents. A seat on the for Lieberman, he lived in one of the few Agriculture Committee may seem incon- states without a sore loser law and was sequential to a citizen in inner-city Balti- able to retain his seat by running in the more but it is of great importance to a cit- general election as an independent. izen whose community depends on farm- Today the Republican Party is almost ing. Membership on the Armed Services monolithically conservative, while mod- Committee or the defense subcommittee erate and conservative Democrats have of the Appropriations Committee is im- all but disappeared from Congress. The mensely important to constituents in dis- average Republican in Congress is now tricts that are heavily reliant on the jobs more conservative than ever before, and at military bases. Energy issues matter the average Democrat is more liberal. As greatly to citizens of states that are home the positions have hardened, the gulf has to large oil and gas producers. In an ideal widened. There is no need to come to- world, one might expect familiarity with gether to weigh where the greater nation- agriculture, defense, or energy issues to

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make one a natural ½t for the committees Finally, there is another problem that Mickey that deal with such issues, but expertise makes it dif½cult to focus the government’s Edwards in the subject matter is not always suf½- attention on solutions that address our cient to land such an appointment. Instead, common problems in ways that bene½t it is a pledge to support the party position, the community at large. In the Republi- regardless of one’s own beliefs, constituent can presidential primaries leading up to preferences, or independent judgment, the 2012 election, former House Speaker that often determines who wins prized Newt Gingrich, accused of persistently committee seats, especially leadership posi- strange behavior ranging from proposing tions on those committees. The ability to statehood for the moon to likening him- compromise is simply excised before the self to Pericles, struggled early, had a brief appointment is made. flirtation with success in South Carolina, These are examples of a systemic flaw and then fell into a succession of third- in our politics and our governance. While and fourth-place ½nishes in a four-man political parties are endemic to democratic race. And yet he persisted, able to do so forms of government (the right of free because a wealthy owner of a Las Vegas association will inevitably bring together casino poured millions of dollars into people who share similar political views), Gingrich’s campaign. Other very rich men civil society has increasingly surrendered and women, empowered by the Supreme control of its election and governance pro- Court’s Citizens United decision, used cesses to those parties and, through a party- super pacs to direct millions into the oriented system of primary elections, to efforts to elect Mitt Romney, Rick Santo- the most partisan and zealous party mem- rum, and President Obama. The president bers. Consider, for example, the “sore bene½ted from the largesse of supporters loser” laws in most states. Under statutes who opposed construction of the pro- promulgated by the parties, the names of posed Keystone gas pipeline; Republican candidates who lost in a party primary candidates were helped by the pipeline’s are prohibited from appearing on a gen- advocates. Support for “Obamacare,” the eral election ballot. Thus in the Delaware president’s health care initiative, funded case cited above, while less than 6 percent one side of the campaign, and those who of the state’s population participated in wanted the legislation repealed were on the the U.S. Senate primary, Mike Castle’s other side. The elections became a contest name was not eligible to appear on the between rich people pursuing narrow ballot when the rest of the state’s voters interests. went to choose the man who would be The hand of the political parties is felt their voice in Washington. If Castle had in this part of the process, too. While par- won the primary, his Republican oppo- ties generally remain distant from con- nent, Christine O’Donnell, who was pre- tested primaries, the ultimate outcome of ferred by more Republican primary vot- congressional races is heavily influenced ers, would have been denied a place on by party contributions. Increasingly, mem- the ballot. It was not the candidates but bers of Congress have been pressured to the citizens of Delaware who were the raise special funds for a pool to be drawn victims of this party-centric system, their on to support the campaigns of candidates options restricted by laws designed to help seeking to defeat of½ceholders of the other party insiders call the shots in determining party or to win an open seat. Party leaders how Americans will govern themselves. have complete discretion as to where to spend those dollars, and because non-

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The Case incumbents have a harder time gaining Serving the common good, no matter for Tran - the necessary funding for expensive ad- how de½ned, requires workable institu- scending Partisan - vertising campaigns, winners often take tions, public con½dence, and public en- ship of½ce feeling a strong sense of indebted- gagement. Not one of those three criteria ness to the party leaders who helped is met in today’s political environment. them secure their victories. In addition, Our institutions are dysfunctional, public the largest super pacs are operated by con½dence in the ability of elected of½- party insiders. Obligation piles upon ob- cials to deal with community dif½culties ligation, often a result of the great piles of is almost nonexistent, and even in a “high money that now flow into campaign trea- turnout year,” the percentage of Ameri- suries, and the ability to be open to alter- cans who contribute to, work in, and even native policy prescriptions is compromised vote in public elections is disappointingly still further. low, especially for a nation that likes to Once elected to Congress, legislators think of itself as the world’s foremost who desire seats on prestigious–and beacon of democracy. powerful–committees may ½nd them- The solution to this problem may be selves required to pledge fealty to party dif½cult to achieve, but it is easy to de- positions in exchange for the appoint- scribe. We must restore civility to Ameri- ments they seek. Before the ½rst hearing ca’s public discourse, and we must reduce is held, the ½rst witness questioned, the partisanship in governance. We must be- ½rst brief written, the legislator knows gin to make public decisions as Americans what he or she is expected to do on those working together to address concerns issues of most importance to the party. rather than as members of rival armies In each of these instances–the need to doing battle over the trappings and privi- cater to party activists in partisan primar- leges of power. Here’s how we can start ies, the influence of party-directed cam- the process: paign funds, and the required allegiance First, return the election process to a to partisan positions–the ability to inde- conversation among citizens rather than pendently assess where the greater com- a battle between bank accounts. Given mon good may lie is seriously compro- the importance of the citizen’s right to be mised. Critical thinking requires the abil- heard on political matters, it may be dif½- ity to question assumptions, including cult to rein in independent expenditures those that underlie one’s own preconcep- on behalf of preferred candidates and tions. Because determining what consti- policies; but the size of those expenditures tutes the common good is rarely a simple can probably be limited, just as direct matter, anything that inhibits serious in- contributions to candidates have been lim- quiry is more likely to perpetuate harm ited. In addition, it is almost certain that than to provide bene½t, whether that bene- non-individual contributions–by corpo- ½t consists of expanding or constraining rations, labor unions, political action the role of government (so long, of course, committees, and political parties–can be as the action remains within the bound- limited or eliminated, either by legislation aries of constitutional permissibility). or constitutional amendment restricting How, then, can we improve on the ability campaign spending to fully disclosed ex- of our elected leaders to put their best penditures by actual living human beings. intellectual efforts toward ½rst de½ning (The law itself recognizes that corporations and then advancing the common good, are only arti½cial people, not real ones, however they may ultimately perceive it? and labor unions, political parties, and

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political action committees are not people, elect more members of whichever party is Mickey either.) Limiting campaign support, either dominant in the state’s legislature. Party, Edwards directly to a candidate or as an indepen- not common interest, becomes the pri- dent expenditure, would help return the fo- mary factor. cus to public, rather than private, interests. After I won a congressional seat that Second, ensure that citizens will have a had been held for nearly a half-century broad range of choices when they go to by the other party–which then had an the polls to choose the men and women overwhelming majority in the state legis- who will make the nation’s laws, set tax lature–my district was redrawn from a rates, create or disband public programs, single square-shaped county in the middle and decide whether to go to war. Three of the state to a large upside-down “L” states–Louisiana, Washington, and most stretching from central Oklahoma to the recently, California–have changed their Kansas border and halfway over to Ar- laws to eliminate closed party primaries. kansas, the only purpose being to put as In those states, any candidate who quali- many of my fellow Republicans as possi- ½es, by ½ling fee or voter signatures, can ble into my district and thus make the appear on the ballot in a primary in which other districts safer for Democrats. The every quali½ed voter is entitled to partic- result was to place tens of thousands of ipate. The ballot may include two or more wheat farmers, cattle ranchers, and small- members of the same party and members town merchants in a new district where of several parties. If no candidate wins a they would be represented by an urban majority, the top two ½nishers face each congressman, familiar with big-city issues other in a general election even if both and unfamiliar with the economic inter- are of the same party or if neither is from ests of his new constituents. So much for one of the two major parties. Americans, the founders’ intended representativeness. who demand choice in almost every aspect Thirteen states have taken this power of their lives, from soups to stereos and away from their state legislatures, either from sneakers to cell phones, would again entirely or to some degree, and placed have a full range of choices when they go much of the redistricting authority in the to the ballot box. hands of independent, nonpartisan redis- Third, take away the ability of party lead- tricting commissions. Every state should ers to draw congressional and state leg- do the same: drawing district lines should islative boundaries for partisan advantage. be about able representation, not partisan The Constitution, with its requirement advantage. To genuinely consider alter- that members of Congress actually live in native de½nitions of a common good, one the states from which they are elected, must be freed of dependence on party. envisions citizens being represented in However one may ultimately envision Congress and state legislatures by men and the common good, it is necessarily true women who understand their concerns that common must refer either to the peo- and interests. Conversely, voters would ple collectively or the national interest as be able to select their representatives from a whole, which may, of course, diverge. among men and women with whom they And good must refer to “that which is are familiar. When political parties draw best,” whether in the short term or with a district lines, urban dwellers may end up longer perspective. In either case, deter- attempting to represent the interests of mining the common good must entail farm communities with which they have some diligent examination of fact and little in common, all in the name of helping some serious reflection. Anything that in-

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The Case trudes upon that process, including pre- to the House Rules Committee) which for Tran - vious commitments (pledges to various bills may be considered for enactment, scending Partisan - interest groups, which violate the con- are selected by the majority party. The ship gressional oath to carry out one’s duties majority chairs, and has more members without condition or reservation), loyalty on, every committee and every subcom- to party or person (a president, for exam- mittee; it determines which bills will get ple), or indebtedness to supporters (in- a hearing and who will be asked to testify cluding ½nancial contributors), renders as to the bill’s merits. To “discharge” a moot the purposes of democratic repre- bottled-up bill from a committee and sentation and the purposes of the consti- bring it to the floor for a vote requires 218 tutional structure. This obligation argues members’ signatures, which means that for several important systemic changes. at least one, and usually far more than In other places, including a book on this one, of the members of the majority party subject, I have spelled out my concerns must sign the discharge petition, thereby about a number of the most common pro- incurring the wrath of both the Speaker posals to eliminate the corrosive effect of and the chairman who might hold con- money on the political system. I won’t siderable sway over the member’s own repeat them here out of recognition of legislative initiatives and future commit- the limited space available to me in this tee assignments. One way to break this essay but will repeat the basic conclusion partisan control over our laws is to re- I have reached. We are a nation of peo- quire that committee positions be ½lled ple–more than 300 million of us–and without regard to party membership and it is to us and to the Constitution that our to require that Speakers be elected by bi- elected of½cials owe their allegiance. It partisan majorities. (In the Senate, the is people, not entities and not interests, leader is the head of the majority party, that should select those who will write but Senate Majority Leaders are more the laws and make the policies that will constrained by the intricacies of the Sen- affect our lives. Just as only people–real, ate’s rules.) not arti½cial, people–may cast votes at Members of congressional committees the ballot box, only real people should be receive brie½ngs from staff members who empowered to provide the funding for conduct research, interview experts, and political campaigns. No money from cor- recommend which positions to take. The porations, labor unions, political action problem is, Republicans are briefed by committees, or political parties. Votes and partisan Republicans and Democrats by money should come from the same place: partisan Democrats. Brie½ngs are inevi- the individual American citizen. tably tainted by partisan or philosophical When Congress acts, it should act on preconception. A better answer would be behalf of the common good, not the good of to empower a nonpartisan House manager Republicans and not the good of Demo- or parliamentarian to hire committee crats. Our members of Congress should staff members based on education and act as Americans, all members of the same experience and after suf½cient vetting to club, not rival clubs. The problem is that ensure the ability to provide unbiased the basic architecture of Congress re- data to all members, without regard to inforces not commonality but separate- party af½liation. ness. House Speakers, who exercise ulti- On the House floor, members who mate control over legislative procedure, wish to address their colleagues move to even determining (through appointments the front of the chamber (“the well”) and

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stand at a lectern. But it isn’t that simple: perspectives are offered. Our elected of½- Mickey there is not one lectern but two–one for cials fail us; they operate in a system that Edwards Democrats, positioned in front of the fails us; our news media fails us; our Democrats (who all sit together, on one schools fail us. American democracy is side of the chamber) and another for dysfunctional, but the dysfunction is not Republicans, positioned in front of the wholly the fault of those we have elected: Republicans (who all sit together on the those of us who elected them share in the other side of the chamber). It is some- blame. Our members of Congress are times hard to remember that these are all locked into philosophical boxes–but many members of the same Congress, all Amer- of us are, too. We listen to only views we icans, all having taken the same oath of already agree with, read only writers whose of½ce, as they divide from their ½rst day perspectives we share. We listen to, and in the House into separate camps, eating believe, the nonsense we hear whether at separate tables, reading newspapers and we hear it from Rush Limbaugh or Keith making telephone calls in separate cloak- Olbermann; we accept as truth the opin- rooms. Republicans meet in their “con- ions of a Charles Krauthammer or a Paul ference,” Democrats in their “caucus”; Krugman, but rarely both. they seldom meet together other than on In the broadest and most general sense, the House floor or in committee rooms the pursuit of the common good is merely where they line up on opposing sides. All an expression of our desire to have our of those arti½cial divisions should be re- government–the members of society act- moved–cloakrooms available to all, sin- ing through a formal collective process– gle lecterns, mixed seating in committees act in the best interests of the community (by seniority, perhaps). It is fruitless to as a whole. Because collective decisions seek agreement on the common good in an in a democracy are made through inter- environment where there is no common. mediaries (the men and women we place in elective of½ce), our ½rst thoughts are In suggesting ways to improve the ability often about whether the trust we have to discern and serve the common good, I placed in them has been well rewarded. have discussed the importance of systemic But it is a mistake to place the burden of change in the election process, the redis- advancing community interest solely, or tricting process, the ways in which politi- even primarily, on the holders of public cal campaigns are funded, and how Con- of½ce. A functioning democracy requires a gress selects leaders, considers legislation, high degree of participation. That is gen- and functions on a daily basis. That, how- erally thought to be measurable by the ever, is not enough: the Congress operates, percentage of eligible voters who register elections are conducted, and procedures and the percentage of registered voters are established within a broader context. who vote. But in fact that is a barometer It is not only Congress that needs repair. of interest, not contribution. To be a con- Democracy is a participatory system. It tributing member of society and a valu- requires an informed electorate, knowl- able piece of the quest for the common edgeable in the processes of government. good, citizens must be willing to adopt fun- It requires a citizenry competent in criti- damental behaviors that are sorely absent cal thinking, able to probe and question from today’s life. Let me reiterate just a few: and consider alternatives. It requires civil First, we must all be able to engage in conversation and the ability to listen constructive dialogue. That does not mean without forming rebuttals even as other just a vigorous expression of a viewpoint

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The Case –something we all are quite good at– There is more required of the citizen for Tran - nor does being articulate and reasoned in than active listening and critical thinking scending Partisan - that expression answer the need. Civil dia- –for instance, an education system that ship logue of the kind necessary to democratic emphasizes civics and a media focused governance is a two-way activity that more on information than on conflict. requires both speaking and listening. The list is long because democracy re- Missing not just from government forums quires not just participation but serious, but from the private sector as well is a informed, dedicated, intelligent partici- willingness to listen to, and fairly consider, pation. Ignorance and gullibility are use- a point of view that does not comport ful skills for one who wishes to remain fully with our own preconceptions. Un- secure in an undemocratic society, but they fortunately, it is far more common for a are deadly to democratic governance. They citizen to begin forming a rebuttal even make coming together to understand the as another is speaking. It is not about common good nearly impossible. The re- learning so much as it is about “winning.” forms need to begin with government, True conversation requires not only a will- but they cannot stop there. ingness to understand other points of view The National Institute for Civil Dis- but to continue a dialogue so that we can course, the Aspen Institute, the Bipartisan integrate the varying perspectives into a Policy Center, No Labels, and other insti- story that will allow us to ½nd those com- tutions have undertaken serious efforts mon interests and aspirations from which to get beyond the divisiveness that para- we can build the compromises necessary lyzes our search for commonality. It is to achieve a truly common good. not an attempt to erase disagreement: It is also necessary for the citizens of a vigorous debate over alternative policies democracy to learn the skills of critical is the central ingredient of a vibrant thinking–the ability to challenge, ques- democracy. Nor is it an attempt to create tion, test that which is presented as fact or an arti½cial politics of the “center”: many fact-based argument. A citizen who simply great advances in our society have come accepts as true whatever assertions are not from the center but from the edges of voiced by a favorite columnist or commen- the conversation (the civil rights move- tator or candidate of a preferred party ment, the labor movement, the women’s quickly becomes a soldier in Army A, movement). Instead, it is a desire to create ready to do battle with the soldiers of a conversation between citizens, whether Army B, with a goal not of coming to- in of½ce or otherwise, who seek to ½nd gether but of destroying the opposing force. that common ground on which we can all Modern technology has given Americans a stand, that win-win place of compromise new ability to know more than ever before and conciliation that will allow us to –more that is true and more that is not. move forward together as a single nation, Here we can learn a lot from science, for a diverse in our ideas and our experiences good scientist begins by testing hypothe- but united in our desire to advance to- ses: sounds good, but will it hold up under gether as a national family. That should scrutiny? To a newspaper reader or screen be our goal. watcher, such a system would require questioning the credentials of the person making the assertion, asking what advocates of a different position might say about the matter.

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Citizens United: Robbing America of Its Democratic Idealism

Jim Leach

Abstract: The 2010 Citizens United ruling has been widely reviewed from the lens of legal precedent. In this critique, the author suggests the need to examine the logic and effects of the ruling from a historical, philosophical, and linguistic perspective. He challenges the Court’s basis for providing inanimate entities First Amendment protection to “invest” in politics by equating corporations with individuals and money with speech. He holds that Citizens United employs parallel logic to the syllogism embedded in the most repugnant ruling the Court ever made, the 1857 Dred Scott decision. To justify slavery, the Court in Dred Scott de½ned a class of human beings as private property. To magnify corporate power a century-and-a- half later, it de½nes a class of private property (corporations) as people. The effect is to undercut the democratic basis of American governance.

Having traveled to every state in the union and spoken with people in hundreds of venues over the past several years, I have become convinced that our country has never been more blessed with extraordinary leadership in almost every ½eld of human endeavor, from business to medicine, from the arts to academia. Yet it is becoming harder for thoughtful, independent-minded leadership to emerge in the political system. As money conflicts have multiplied and ideological cleavages intensi½ed, the will and capacity of representatives of the people to mediate social dif- JIM LEACH, a Fellow of the Amer- ferences are breaking down. Compromise may ican Academy since 2010, is Chair- have once been the art of politics, but intransigence man of the National Endowment is the new art of political survival. If a legislator in for the Humanities. For thirty today’s environment chooses to seek common years, he served as a member of ground on an issue–that is, compromise–he or the U.S. House of Representatives she becomes vulnerable to a primary challenge in from Iowa; he also chaired the which participation is low and money games are Committee on Banking and Finan- cial Services. He has taught at both unforgiving. Princeton University’s Woodrow When I ½rst ran for public of½ce, the joke was Wilson School and the Harvard that no smart candidate should ever argue with Kennedy School. those who buy ink by the barrel, a.k.a. the press.

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Citizens Today, a not-so-funny corollary is that a that politicians have an instinct for polit- United: smart candidate should never argue with ical survival, a key component of which is Robbing America those who buy ads by the bushel. Under a desire to raise campaign revenues and of Its the contemporary “win at all costs” polit- suppress opponent treasuries, why in a Democratic Idealism ical ethic, the ½rst thing the new breed of corporatist political system would a political consultants tells their clients is politician want to speak up against the to throw civility out the window. Civility drug companies or gambling interests or requires a willingness to consider investment banks if corporate monies respectfully the views of others and an can quickly be shoveled into campaigns? understanding that we are all connected and rely on each other. These ideas are Over our tumultuous history, the U.S. anathema to those who now manipulate Supreme Court has generally been at the so much of the political process. forefront of advancing justice and pro- Yet seldom is there only one proper tecting the rule of law. But from time to path determinable by one individual or time, our politics and the Court have one political party. Public decision-mak- been out of step with our deepest ideals. ing does not lend itself to certitude. That For almost nine decades after our found- is why humility is a valued character trait ers signed the Declaration of Indepen- and why civility is an essential compo- dence, af½rming that all men are created nent of civil society. equal, a number of states sanctioned slav- To be clear, civility is not simply or ery; and until the Civil War, the Supreme principally about manners. Indeed, on Court formally upheld this egregious Capitol Hill polite words are sometimes assault on human dignity. more problematic than raucous ones. Brazenly, in Citizens United, the Court Consider this example of a typical con- employed parallel logic to the syllogism versation between a lobbyist and a legis- embedded in the most repugnant ruling lator walking to or from a vote on the it ever made, the 1857 Dred Scott decision. House floor: “Congressman, as you know, To justify slavery, the Court in Dred Scott we maxed out for you in the last election, de½ned a class of human beings as private and we and our allies sure hope to be able property. To magnify corporate power a to more than match that support this fall. century-and-a-half later, it de½ned a class But please understand that tomorrow a of private property (corporations) as bill of importance to us is coming up on people. Ironies abound. Despite over- the floor (or in your committee) and we whelming evidence to the contrary, the would sure appreciate your support. By mid-nineteenth-century Court could the way, how are your wife and kids?” see no oppression in an institution that Politely stated, but there is no reference allowed individuals to be bought and to the common good. Instead, coercively sold. In the Citizens United ruling, despite implied is an ongoing, quasi-contractual overwhelming evidence to the contrary, relationship between an interest group the Court implied that corporations were and a public of½cial. somehow oppressed–in this case con- These implicit uncivil contracts can be sidered to be censored–and therefore coercive even if never discussed because should be freed to buy political influence corporate power, newly magni½ed by the and sell opposing candidates down a 2010 Citizens United decision, can so easily river of negativity. reward a candidate or inflict political ret- How are corporations oppressed? Do ribution. On the assumption, for instance, corporate leaders not have free speech

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and the right to give campaign contribu- square with the Declaration of Indepen- Jim Leach tions like all other citizens? Have they dence. All men may be created equal in and the political action committees (pacs) relation to each other, but not necessarily that they control not already been over- in relation to corporations or, under Citi- empowered to infuse millions into the zens United, in relation to how corpora- political process? Is it an accident that as tions may empower some individuals rel- the influence of moneyed interests has ative to others. There is great inequality increased in American politics, the gap between corporations, no equality of between the rich and poor has widened? individual and corporate “personhood,” To advance the sophistic argument that and no equality of individuals when one more money in campaigns equates to with many corporate ties may have more more democracy, the Court had to employ capacity to influence decision-making a linguistic gyration. It presumed that than one with none or just a few. money is speech and that a corporation is an Multiple personality disorder may individual. But where in any dictionary or from time to time seem to describe a can- in any founding documents are these didate in regard to stances taken, but it equivalencies made? never was intended to de½ne the political Speech is the act of expressing thoughts, system itself. More money is not more feelings, or perceptions by the articula- democracy. tion of words. It is a vocalized form of Corporate larceny is at issue; so are human communication. In pejorative democratic values. To presume that cor- jargon, money may “talk,” but precisely porate money can be construed as de½ned, money is a medium of exchange, “speech,” that speech for many will be a measure of value, or a means of pay- coerced rather than free. After all, to tap ment. In the manner it is used in politics for political purposes the assets of share- it can be considered a campaign contribu- holders or by implication union mem- tion. It is not “speech” in terms of what any bers, more than a few of whom can be strict constructionist could conceivably expected to hold different political judg- believe the First Amendment addresses. ments than management or union stew- A corporation is an arti½cial creation of ards, is a “taking” of their assets, a per- the state, which in turn is a creation of version of their “speech,” a diminution the people. To vest an inanimate entity of their political rights. with constitutionally protected political What the Court has done is reason by rights makes mockery of our individual analogy rather than constitutional logic. rights heritage. While corporations as a But analogy, like metaphor, is more suit- “legal ½ction” have been given analogous ed to poets than jurists. When used in status to individuals in aspects of com- Citizens United, the analogies are not con- mercial law, citizenship rights are of a vincing. Music, for instance, is more very different nature. A corporation can- analogous to speech than money is. not vote or run for of½ce. The inspiring Money may be used to buy many things, words of our founders were about free including influence, and when large men born with inalienable rights. It is they amounts are given in the political pro- who speak. It is they who can assemble. It cess, conflicts of interest are created that is they who are considered equal among undercut rather than embellish democ- each other. racy. Likewise, a monkey or a gorilla is a To hold that a corporation is a person closer analogy to a human being than a with citizenship rights simply does not corporation is. But no one suggests that a

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Citizens primate be given citizenship rights. A human nature, the majority concluded United: corporation, to be sure, has shareholders, that independent corporate political Robbing America yet there is a distinction between a corpo- expenditures “do not rise to corruption of Its ration and its ownership. or the appearance of corruption.” Really? Democratic Idealism The main way “corporate-ness” can be Is it not clear that under a free speech analogized to personhood relates to its guise the Supreme Court has authorized hierarchical structure. In the corporate influence wielders, in many cases masked world, one decision-maker or, at most, a to the public, to use unlimited resources collective few are accountable for how to rob America of our democratic heri- corporate resources are allocated. Autho- tage? rizing corporate leaders to distribute Our founders were moral philosophers shareholder assets–that is, other peo- as well as political activists. They dwelled ple’s money–in political campaigns thus on a subject the Court ignores: human empowers small numbers of insiders. nature. To constrain what was implicitly There is no escaping the reality that the considered a natural instinct of public precept of corporate personhood pushes ½gures to aggrandize power, John Han- American politics in an oligarchic direc- cock, Benjamin Franklin, and their fellow tion. Nor is there escaping the only delegates to the Constitutional Conven- justi½cation for spending corporate tion followed James Madison’s lead and assets in campaigns. Money spent in adopted a governance framework for the campaigns must be considered good American republic based on Montes- investments for shareholders, quid pro quieu’s separation of powers doctrine. quos that can be banked. Could it be that Divided governmental authority was the Court’s de½nition of protected established in the Constitution with a “speech” might more accurately be de- similar legislative/executive/judicial scribed as influence buying? model triplicated in decentralized fashion at the state, county, and city levels. The Prior to Citizens United, the Supreme overlaps and continuous tension created Court implicitly recognized that citizen between levels and branches of govern- expression was different from issue advo- ment were designed to bifurcate and con- cacy backed by money. Hence it upheld strain power. I note this background to congressionally established reporting underscore the human dimension of requirements and limits on campaign abstract principles. No politician will giving for individuals making campaign ever acknowledge that campaign contri- contributions. However, in Citizens United butions affect his or her votes or judg- corporate persons are granted “supra- ment. But for the public to assume that man” status: limited transparency re- candidates whose campaigns are sup- quirements and unlimited capacity to ported by large amounts of money from spew money into the political system. interest groups do not become indebted The Court’s lawmaking judgment cannot to these groups is to deny human nature. be challenged by Congress because an It is to flout how our founders thought activist 5-4 majority has presumptuously about power and the role of citizenship. held that the moneyed intervention At our country’s founding, property- capacities that it has granted corpora- less people as well as women and slaves tions in the political process are protect- were denied the right to vote, and there ed by the First Amendment. And lacking was an original constitutional acceptance an evidentiary basis and appreciation for that slaves could be considered three-

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½fths of a person for legislative and Elec- ever, that corporate power often operates Jim Leach toral College apportionment. But none of with one troubling bipartisan dimension. our founders ever advanced the notion Corporations have a tendency to align that one individual could be several per- with those in either party who hold posi- sons and have magni½ed influence based tions that may affect issues of direct con- on control of corporate assets. cern to their interests. Corporations are The arc of our history that has bent generally blind to the party af½liation of toward justice has suddenly with the Citi- those they support in legislative commit- zens United decision twisted back to that tees that have jurisdiction over their part of our constitutional heritage that interests. Surprising to some, Citizens was self-evidently unjust. Property con- United thus increases the likelihood that siderations have again become accentu- ½nancial interests will increase their ated in a key aspect of citizenship, the donations to both sides of banking-ori- injustice of which weakens the links ented committees; commodity groups to between government and the people. both sides of the agriculture committees; the military-industrial complex to both Corporatist politics has several other sides of the armed services committees; rami½cations of a very different dimen- and so on. Ideology has its place, but sion than our founders considered. When power in the commercial sphere supports our constitutional system was estab- power in the political domain. lished, the founders assumed that indi- Tertiary effects involve empowerment viduals elected to Congress would come of foreign interests. Granting to corpora- from many different backgrounds and tions the right to muscle further into the that they would be prepared to represent political fray is complicated by the fact vigorously their state, its interests, and its that shareholding by sovereign wealth people. A consequence of Court-enhanced funds and foreign individuals in Ameri- corporatist power is the nationalization can corporations is substantial and grow- of local elections. Candidates across the ing. Foreign governments, citizens, and country become indebted to the same corporations have historically been barred corporate groups. Candidates in farm from making political contributions. states, for example, increasingly ½nd that Under the new ruling, a door has been their campaigns are supported by oil opened to allow them to be able to influ- companies on one side and out-of-state ence, explicitly or implicitly, how Ameri- unions on the other, causing indebted- can institutions exercise political power, ness to groups that often do not reflect whether through companies that they con- the same views as the majority of their trol as U.S. incorporated subsidiaries or constituents. through stock owned in American com- Secondary effects apply to political par- panies on or off public exchanges. ties. Because the new ½nancial empower- Equally consequential, an American ment under Citizens United is provided to corporation controlled by American share- unions as well as corporations, the ten- holders may have vested interests differ- dency will be for the Democratic Party to ent from the national interest. In a global become more like the old, union-domi- economy, corporate leadership is as- nated Labour Party in Great Britain and sumed to be pro½t driven. When an the Republican Party less like the pro- industry outsources jobs and facilities to environment, trust-busting party of Teddy foreign countries, its advocacy “invest- Roosevelt. The irony would remain, how- ments” in the American political system

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Citizens may be unaligned with citizen interests. mined to protect moneyed influence ped- United: The corporate personhood precept estab- dling that obscures citizen speech and Robbing America lished in Citizens United thus gives foreign eviscerates the capacity of citizens and of Its countries and foreign nationals with policy-makers to weigh competing views Democratic Idealism American corporate ties the prospect of in balanced ways. becoming more powerful factors in At issue is whether a new analytical American elections than many American paradigm about the First Amendment citizens. more consistent with linguistic logic, As a candidate who campaigned seven- American history, and democratic values teen times for Congress, eschewing pac is in order. Absent a clear directive from and out-of-state contributions, I can the Constitution, absent carefully ex- attest that a troubling effect of corporate- pressed views of the founders, should not controlled giving is that it diminishes cit- the courts follow a strict constructionist izen respect for the political system, the approach to the meaning of our individ- desire to vote, and even the willingness to ual rights–centered democracy? Rather engage in the political process by giving than conflate a corporation with a person small contributions. Over the years, for and money with speech, should not the fo- example, constituents would come up to cus be shifted to the transactional relation- me on the street or at Rotary or Farm ship inherent in speaking and listening? Bureau meetings and say that they had If all men are created equal, surely it sent a check for $20 or $30 to my cam- follows that all citizens are entitled to paign that they wouldn’t otherwise have have their views respectfully listened to if I had not adopted a policy of not in the public square and, after elections, accepting pac funds. The public under- to have the representatives they choose stands that it is of marginal signi½cance be in a position to seek common ground to make a modest contribution to a can- in pursuit of the common good, uncon- didate if that candidate receives tens of strained by having their ears plugged thousands of dollars, sometimes now with corporate money. millions, from corporate- and union- In the wake of the Citizens United ruling, controlled funds. a distinguished former justice, Sandra Day O’Connor, has been speaking out It is no accident that our tax laws are about the need for states that elect their loaded with loopholes, that corporate Supreme Court justices to change to a muggings are frequent in American poli- system in which governors nominate and tics. Nor is it an accident that many legislatures con½rm high court nomi- Americans, from tea party advocates to nees. Justice O’Connor sees a conflict of middle-class homeowners to the Occupy interest problem potentially exploding in Wall Street movement, believe that they states like Texas where huge amounts of are not being listened to, that vested corporate money can quickly be mar- interests hold an improper, behind-the- shaled in support of or opposition to judi- scenes sway in the political life of our cial candidates. country. I share Justice O’Connor’s concerns Nuances aside, the main casualty of the but would add that the goal of advancing Citizens United ruling is idealism. At a time equal justice under the law applies just as when the country needs to pull together, much to the making and administering of the Supreme Court has chosen a path to laws as it does to their adjudication in a magnify public cynicism. It has deter- courtroom. Indeed, the objective of ad-

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vancing equal justice begins in the ½rst capable of evolving in ever fairer, more Jim Leach and second estates before it becomes the equalitarian ways. responsibility of the third estate, where Many good people enter politics only judges, generally speaking, are tasked to ½nd that the system causes the low with interpreting and enforcing rather road to become the one most traveled. than making law–Citizens United being a Politicians routinely develop conflicts that sparingly embraced, lawmaking exception. do not technically rise to a legal standard The standard of judiciousness in the of corruption because legislated law and making of law is fairness, while the stan- now judicial ½at have weakened that dard of judiciousness in the adjudication standard. of law is allegiance to the letter of law and The low road is traveled because it is its constitutional framework. Hence from the shortest path to of½ce and justi½ed an equal justice perspective, the judiciary because other contenders generally stam- should be acutely concerned about law- pede alongside, though increasingly far making that empowers deep-pocketed from the center stripe. If a candidate special interests to the detriment of the chooses a less-conflicted route where few common good. No judge should be placed travel, the likelihood is that candidate in the position of having to uphold will come up short. patently unfair laws designed to appease Speech is thus at issue from two per- corporate power brokers to whom legisla- spectives. At one end, uncivil speech tors or elected executives may be indebted. must be protected by the courts, but In this circumstance, public con½dence ½ltered by the public; at the other, mon- in the judicial as well as the legislative eyed “speech” must not be allowed to and executive branches of government is weaken the voices of the people. The jeopardized. A citizenry simply cannot be Constitution begins “We the people,” not expected to have con½dence in a judicial “We the corporations.” system in which the standard becomes equal application of unfair laws. Equal justice requires that the law itself be fair.

Many are familiar with the saying, sometimes attributed to Bismarck, that the public should not look too closely at laws or sausages being made. Law- and sausage-making are different, but what unites them is a public concern that the seen and unseen ingredients of each be integrated in as “clean” a manner as possible. In America, process is our most important product. Our founders recognized human frailty and thus went to great lengths to attempt to erect a system that would be democratic rather than aristocratic or oligarchic. Individuals could be expected to make mistakes, but the political system was to be above reproach,

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The American Corporation

Ralph Gomory & Richard Sylla

Abstract: The United States from its earliest years led the world in making the corporate form of business organization widely available to entrepreneurs. Starting in the 1790s, corporations became key institutions of the American economy, contributing greatly to its remarkable growth. This essay reviews the evolution of corporations across several eras of the country’s history. The most recent era is marked by a shift away from a stakeholder view of corporate interests and purposes to one dominated by pro½t and shareholder-value maximization. We strongly question whether this shift has been bene½cial to the country as a whole. If our assessment is correct, there is a need to ½nd ways of inducing corporations to act in ways that produce better societal outcomes. We therefore explore ways–including some suggested by the history of U.S. corporations–in which corporate interests and the public interest might become better aligned.

Great corporations exist only because they are created and safeguarded by our institutions; and it is therefore our right and our duty to see that they work in harmony with those institutions. –Theodore Roosevelt, First Annual Message to Congress, 1901

Questions about the actions and purposes of American corporations have been with us as long as corporations themselves. Both the questions and the answers to them have varied widely over time. RALPH GOMORY The Occupy Wall Street movement that began in , a Fellow of the New York City in September 2011, spreading there- American Academy since 1973, is Research Professor at the New after to other cities, raised or reiterated some of the York University Stern School of basic questions about how well these American in- Business. stitutions work. The questions being raised today cover a wide range of issues. RICHARD SYLLA, a Fellow of the American Academy since 2012, is Why, during the ongoing ½nancial and economic the Henry Kaufman Professor of crises that broke out beginning in 2007, did large the History of Financial Institu- ½nancial institutions and industrial ½rms teetering tions and Markets and Professor of on the brink of failure–often because of their own Economics at the New York Uni- misguided strategies and decisions–get bailed out versity Stern School of Business. by the federal government? Why did the govern- (*See endnotes for complete contributor ment seemingly do much less for homeowners fac- biographies.) ing foreclosures on houses now worth less than the

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mortgage debt incurred to buy them, per- tion, one in which corporate rights and Ralph haps because they had lost their jobs in the privileges vastly outweigh corporate social Gomory & Richard economic downturn and could not afford responsibilities? Sylla the mortgage payments due? Americans have always viewed corpo- Why do the pro½ts of American corporations with mixed feelings. On the one rations and the compensations of their hand, a corporation with limited liability executives stay high and even rise in some and endowed with a long life is an attrac- cases while jobs disappear and both eco- tive vehicle for numerous investors to pool nomic growth and median family incomes their individual capitals, receiving trad- stagnate? Why does the judicial branch able shares of the company in return. join in to strengthen the influence of cor- Pooling of capital makes possible large, porations, ½nancial and non½nancial, as long-term investments that can achieve with the Supreme Court’s Citizens United economies of scale and scope in the pro- decision in 2010? That decision granted duction and distribution of goods and corporations relatively unlimited free- services that are beyond the capabilities speech rights to spend corporate funds in of sole proprietorships and partnerships. electoral politics. Indeed, one of the less appreciated reasons It is not the ½rst time in U.S. history for the rapid rise of the U.S. economy in that people have wondered whether ours the nineteenth century in comparison to is a government of the people or a gov- other nations was the relative ease of ob- ernment of the corporations, by the cor- taining a corporate charter in America. porations, and for the corporations. Such On the other hand, inherent in the cor- fears are as old as the republic. They were porate form are problems of conflicting present in the 1790s, when the United goals. Will the managers of corporations States began to lead the world in the manage them in the interests of the development of the corporation as the shareholder-owners? Or will the man- most dynamic form of modern business agers act in their self-interest? Will cor- enterprise. They arose again in the ½nan- porate managers take into account the in- cial and economic crises of the late 1830s terests of employees, customers, suppliers, and early 1840s, after state legislatures had lenders, and the polity that made the cor- created thousands of corporations. In the poration possible? decades around the turn of the twentieth Inevitably, these problems of corporate century, when many corporations became goals that have arisen throughout the his- very large, the fear of corporate power tory of the American corporation are still resurfaced, leading to antitrust laws and with us. Our essay outlines how they have federal regulation. The crises of the Great been addressed in several distinct eras of Depression led to further restraints on the U.S. corporate development. This history ½nancial and economic powers of corpo- perhaps can inform how we might deal rations. with them now. If there is any surprise about the current We conclude by strongly questioning crisis, it is not that worries about corpo- whether today’s dominant corporate goal rate power and its abuse are once again –pro½t maximization–is bene½cial to the being raised, but that so little is being country as a whole. done about them in comparison with the reforms of the 1840s, the Progressive Era, In the period from the 1790s to the 1860s, and the New Deal. Could we be witness- the United States led the world in modern ing the ultimate triumph of the corpora- corporate development. Recent research

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The provides the ½rst comprehensive look at charters for potential competitors, and American corporate development, revealing that U.S. would-be corporations using the same Corporation states from 1790 to 1860 chartered 22,419 tools to gain charters. business corporations under special leg- General incorporation laws, also a mod- islative acts and several thousand more ern norm, were introduced late in the ante- under general incorporation laws that were bellum era as a way to avoid the corrup- introduced mostly in the 1840s and 1850s.1 tion involved in legislative chartering as These totals far exceed the number of well as what was perceived as too close a corporations created in any other country relationship between corporations and the (most likely in all other countries com- states. Under general laws, any group of bined) during that time. The United States incorporators meeting the speci½cations thus became what might be called the of the law could receive a charter, the grant- ½rst corporation nation. ing of which became an administrative Most of the early American corpora- rather than legislative function of govern- tions, operating within a state or in a city ment. Access to the corporate form be- or town, were small by later standards. came more open–a gain for society. But The largest were banks and insurance com- state oversight of the creation and moni- panies, joined later in the era by railroads toring of corporations was reduced, which and manufacturers. Stockholders, often had costs in terms of corporate governance. locals, could monitor corporate operations ½rsthand, and they were more directly From the 1860s to the 1930s, most corpo- involved in corporate affairs than would rations remained small (as is still true), later be the case. Stockholders’ meetings but growing numbers of them became very were frequent and actually provided guid- large and operated nationwide and even ance for management. Passive stockhold- multinationally. Large corporations re- ers could keep an eye on their investments quired professional managers, who often by checking prices in securities markets had limited or no ownership shares. These and by observing the dividends they re- “Berle-Means” corporations, so named ceived, which in this era accounted for after the authors of a famous 1932 book, the lion’s share of corporate net earnings. The Modern Corporation and Private Property, Legislative chartering meant that char- effectively separated ownership (share- ters could be tailor-made for each corpo- holders) from control (management), ration, with its powers, responsibilities– marginalizing the influence of owner- including those to the community–and shareholders in corporate affairs. basic governance provisions carefully In this era, external checks on the pos- speci½ed.2 Most charters were not per- sibility that managers would behave oppor- petual, but rather had set terms of years tunistically against the interests of owners and had to come up periodically for re- and anti-socially against the larger inter- newal, a constraint on corporate malfea- ests of the country came in two forms: in- sance. Voting rules for shareholders in vestment bankers and government. Large elections of directors and other corporate corporations often had to access capital matters varied. They were not always the markets by selling shares and bonds, a modern norm of one vote per share, which process in which investment bankers favors large-block shareholders. Legisla- served as intermediaries. These bankers tive chartering could easily be corrupted, had an interest in corporate governance however, with incumbent corporations to assure the investors who had purchased using money and influence to defeat corporate securities from them that their

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investments were sound and secure. They porations to disclose more (and more Ralph exercised that interest by monitoring timely) information to their stockholders Gomory & Richard their corporate clients, even going so far and the general public. The acts also pro- Sylla as to place bank representatives on cor- vided regulatory oversight of securities porate boards. To many Americans, how- trading and investment companies. ever, such banker influence was suspect, Corporations recovered much of the and charges of banker dominance and a prestige they lost during the Depression “money trust” caused investment bankers through their contributions to the suc- late in this era to retreat from their mon- cessful outcome of World War II. The les- itoring and oversight roles in corporate sons about the economy learned from affairs. That, of course, served to increase World War II varied with the eye of the the powers of corporate managers. beholder. To some, the overwhelming fac- Americans’ suspicions about large banks tor in the U.S. contribution to the war and investment bankers were also directed effort was our immense ability to manu- at large corporations. The Gilded Age of facture. That capacity was certainly there: the late nineteenth century featured the already by the 1920s, the United States rise of the Robber Barons, both the busi- not only led the world in production of ness leaders who amassed great power and the key industrial products, steel and elec- wealth in the rise of mass-production and tricity, but also led in their per-capita mass-distribution industries, and the great production. When the United States en- ½nanciers of Wall Street who collaborated tered the war, President Franklin Roosevelt with them. Popular politicos, such as trust- created the War Production Board, com- busting Theodore Roosevelt, adopted ordi- prised of industry leaders. Under their nary Americans’ concerns about the con- command, the country moved with incred- centration of wealth and power, leading ible speed from civilian to military pro- to the passage of antitrust laws and cor- duction. Airplanes in enormous numbers porate regulation at both the federal and were produced in place of cars. U.S. ship- state levels. The purported goal was to building capacity produced carrier-led prevent or rein in monopoly, but in some fleets whose eventual scale dwarfed those cases the application of antitrust laws and of America’s enemies. regulations detracted from corporate ef½- But there was another influential way ciency and protected inef½cient producers of looking at the war’s outcome. This view, from more ef½cient competitors. (Amer- popular in academic and intellectual cir- ican political economy often protects cles, attributed the favorable outcome to particular competitors from competition Allied scienti½c superiority. Radar played in the name of avoiding monopoly.) a key role in deflecting the German aerial assault on Britain following the fall of The period from the 1930s to the 1980s France and in determining the course of began with the Great Depression, which the war in the Paci½c. The atomic bomb put the ½nancial and corporate sectors ended the war with Japan without the mas- under a cloud, resulting in a host of New sive loss of American troops that a ground Deal reforms. In ½nance, the Glass-Steagall assault on the Japanese home islands Act (1933) separated investment banks almost certainly would have entailed. and commercial banks, ramped up federal Yet the wartime radar came from Eng- regulation, and introduced deposit insur- land, and European science underpinned ance. A series of securities acts (1933, 1934, the atomic bomb. Before the war, Ameri- and 1940) compelled publicly traded cor- can science was not signi½cant on a world

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The scale. Science in this country, moreover, ing directors. Often these included top American was not viewed as practical. The great managers themselves. Outside directors Corporation productivity of the United States had its chosen by management were obviously footing in mass production technologies beholden to management. Stockholders, and mass distribution capabilities, not in the putative owners, had little say. The science. Berle-Means corporation remained alive The prestige of science, and the appre- and well, enjoying its heyday in the two ciation of its practicality, rose sharply decades after World War II. Corporations following the war. Academia and govern- did so well in this period because of a ment, especially after Sputnik (1957) and strong American economy, a worldwide in the face of the intensifying Cold War, demand for American products and know- came together on the idea that the United how, and a lack of competition from States should lead the world in science. abroad. A widespread, though not unani- The National Science Foundation came mous, view was that corporate and coun- into being to fund academic research in try prosperity were closely linked. It was science and engineering. Cold War nation- during this period of prosperity in the al defense budgets underwrote the transfer 1950s that General Motors ceo Charles of cutting-edge science and engineering Wilson, in hearings related to his nomi- to a cadre of corporate military contrac- nation by Eisenhower to be secretary of tors. They left the more mundane area of defense, made his famous statement that manufacturing to established ½rms using “what was good for our country was good older mass production technologies. At for General Motors and vice versa.” the end of his two terms in of½ce (1953– In the early postwar decades, the prob- 1961), President Dwight Eisenhower, a mil- lem of corporate goals seemed under con- itary hero of World War II, would warn trol. Managers in general did not feather the country of a rising “military-industrial their own nests at the expense of owners complex.” and other stakeholders. J. K. Galbraith, For two decades after 1945, large Amer- a keen observer of corporate America, ican corporations were subject to little explained that the system worked as well international or domestic competition be- as it did because managerial power was cause of their oligopolistic market struc- faced by countervailing powers in the form tures. Dividend payouts declined as cor- of big labor and big government. Unions porations retained more and more of their were at their strongest in these decades, pro½ts to fund much of their investment. in part because of New Deal labor reforms, Because of New Deal reforms and pro½t and they pushed for higher wages as well retention, the ½nancial sector, which ear- as health care and retirement bene½ts lier had both ½nanced and strongly influ- from corporate employers. As for big gov- enced corporate affairs, was essentially ernment, federal regulatory and antitrust reduced to advisory and service roles. laws put in place from the 1880s through Stockholders did not mind lower dividends the 1930s remained on the books, and because prosperous times increased the postwar Congresses and administrations value of their shares, and regulation by added a host of new laws. the Securities and Exchange Commission The interests of managers, stockholders, increased investor con½dence that Wall workers, consumers, and society seemed Street provided a level playing ½eld. well aligned. And they needed to be. Aside Managers still controlled corporations, from purely economic issues, the United and they exercised their power by choos- States and the Soviet Union were ½ghting

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a Cold War that was in signi½cant part a sibility to all these constituents in toto con- Ralph war of ideas. Communism as practiced and stitutes responsibility to society. . . . Business Gomory & Richard advocated by the U.S.S.R. asserted that it and society have a symbiotic relationship: Sylla would deliver the workers of the world The long-term viability of the corporation from the slavery of capitalism and raise depends upon its responsibility to the soci- their standard of living. Soviet ideology ety of which it is a part. And the well-being of dominated states of Eastern Europe, en- society depends upon pro½table and respon- gulfed China and Cuba, and supported sible business enterprises.3 strong Communist parties in many parts Corporations thus for some decades after of the world, including important West World War II were willing to accept a mix European countries such as France and of goals; they aimed for good products, Italy. satis½ed customers, a good effect on the Fortunately, the widely shared growth community and nation, and a steady return and prosperity in the United States sup- to the shareholders. But that was about to ported the idea that capitalism could be change. both effective and benign. Even the Soviet The economies of the rest of the non- leader Nikita Khrushchev, in a widely Communist world began to revive. Foreign quoted remark on a visit to the United competition for the American market States, admitted grudgingly that “the slaves mattered more than ever because of the of capitalism live well.” tremendous evolution of seaborne com- For several decades, corporate leaders merce in the form of container ships. recognized the claims of various stake- Goods of every size made in one country holders. As late as 1981, the Business could be shipped around the world to Roundtable issued a statement recogniz- another nation at greatly reduced cost. ing the stewardship obligations of corpo- Later, airborne freight also entered the pic- rations to society: ture for goods of more value per pound. Corporations have a responsibility, ½rst of The de facto protectionism provided by all, to make available to the public quality the oceans was being repealed by the march goods and services at fair prices, thereby of transport technology. earning a pro½t that attracts investment to Japan in particular, by providing gov- continue and enhance the enterprise, pro- ernment support and direction, empha- vide jobs, and build the economy. sized manufacturing for export. It developed and adopted new and better manu- [. . .] facturing techniques, forging rapidly ahead That economic responsibility is by no in key industries ranging from automo- means incompatible with other corporate biles, once the U.S. stronghold, to con- responsibilities in society. sumer electronics and, later, computer memories. American industry, used to easy [. . .] success in an environment with limited The issue is one of de½ning, and achieving, competition, was slow to respond. Rising responsible corporate management which inflation and energy-price shocks further fully integrates into the entire corporate eroded American competitiveness. The planning, management, and decision-mak- U.S. dollar lost value compared to other ing process consideration of the impacts of leading currencies. The stock market lan- all operating and policy decisions on each guished. The easy years were over, and of the corporation’s constituents. Respon- the 1970s saw a major slowdown in what

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The had been steadily rising U.S. productivity, ests of some stakeholders may be counter American economic growth, and prosperity. Corpo- to the interests of others. Higher wages may Corporation rate America was in trouble. mean lower pro½ts, and lower wages may mean higher pro½ts. The period from the 1980s to the present In contrast, shareholder value was deter- has been marked by a major shift away mined daily in the stock market, which from a broad view of stakeholder interests the ef½cient-markets hypothesis showed to an almost exclusive focus on share- to be good for measuring that value. The holder value. Galbraith’s countervailing stock market, academics further argued, powers had in fact begun to break down would identify good corporate managers by the 1970s. Declining union membership –those who increased share prices–and gradually reduced the influence of big labor would expose bad ones: those who didn’t. on corporate managers. Corporations Managers who failed to maximize share- hastened the trend by closing factories holder value would be disciplined and even in the old manufacturing belt of the jettisoned by the market for corporate Northeast and Midwest, where unions control, which featured hostile takeovers were strong, shifting production to Sun and leveraged buyouts ½nanced by a reju- Belt states that had long antiunion tradi- venated and innovative ½nancial sector. tions. The old manufacturing areas became Society supposedly bene½ted because the known as the Rust Belt. corporate goal was now to make the total Countervailing power weakened further value of the enterprise, as measured by as academics and others began to attack what it would take to buy it on the open government antitrust and regulatory poli- market, as large as possible. cies as misguided. They called for deregu- This academic doctrine fell on recep- lation and increasingly placed government tive ears. From a shareholder perspective, itself under scrutiny. Instead of working it put their interests in the driver’s seat; in the public interest, many argued, gov- the success of the company was to be mea- ernment practiced interest-group politics. sured by their return. From the point of Bureaucrats had their own interests– view of corporate management, it was a larger budgets, more authority, more mixed blessing. After all, corporate lead- employees–which had little to do with the ership was used to a great deal of inde- public interest. Ronald Reagan, the popu- pendence, they took pride in having good lar president from 1981 to 1989, epitomized products and being respected members this new view when he famously said gov- of the community, and they dealt with their ernment wasn’t the solution, it was the fellow workers and managers every day. problem. Shareholders, in contrast, were a distant Academics came to the rescue of corpo- and uninformed mass to be dealt with by rations, or so it seemed, with new theories dividends. But in a world of pro½t maxi- of what corporate managers should do. mization, pro½ts could be measured every Instead of catering to the interests of var- day and had to be reported every quarter. ious stakeholders, as they had done in the This gap in the natural orientation of good old days of the postwar era, managers shareholders and corporate managers was would best serve owners and society in well recognized in academia: it was sim- general, the academics argued, by single- ply the old principal-agent problem. And, mindedly working to maximize share- the academics argued, it was not that hard holder value. The stakeholder view was a problem to solve. The solution was to complicated; actions that are in the inter- give corporate leadership major stock op-

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tions. When the stock went up, manage- magazine named him Manager of the Ralph ment bene½ted hugely. This approach Century. But Welch’s initiatives would Gomory & ge Richard aligned the interests of managers with lead to problems for and his successor Sylla those of the shareholders. after he retired. The stock-options solution cost the The principal-agent problem often did company and its shareholders nothing if seem to be solved by the stock-option form the stock did not go up, so it was possible of remuneration. Employees, however, to vote the corporate leadership amounts were not discussed in the stock-option of options that overcame any hesitancy. solution to the principal-agent problem, In fact, ceo compensation soared to pre- although they were affected by it. Wages, viously unheard-of heights. And under executive compensation, and pro½ts all many circumstances, a ceo did not have come out of the total “value added” by a to be exceptional to pro½t from stock op- corporation. With the extensive use of tions. In the rising stock market of the stock options, executive compensation and 1980s and 1990s, compensations for all pro½t, which is reflected in stock price, ceos rose together. Certain practices in are linked together. Both improve if wages corporate governance helped generate can be held down. Thus, holding down this result. ceos sometimes served simul- wages became in the interest of both taneously as chairmen of their boards. management and shareholders. They invited other ceos to serve on their The path that the division of corporate boards and possibly chair the compensa- value added has taken since 1980 is reflect- tion committee, a favor that often was ed in data on productivity, pay, and income returned. ceos and boards hired compen- shares. From 1947 to 1979, productivity sation consultants that, perhaps unsur- rose 119 percent, average compensation of prisingly, seldom if ever recommended production and non-supervisory workers reducing ceo compensation. (who constitute more than four-½fths of Criticisms of ceo compensation usually the private-sector labor force) grew 100 elicited a response such as, “He created percent, and the share of national income $2 billion of increased value, why shouldn’t received by the top 1 percent of earners he get $100 million of it?” This attitude (which would include most of top corpo- implied that the efforts of an entire com- rate management) ranged from 9 to 13 pany, with tens of thousands of employees, percent. From 1979 to 2009, in contrast, were the result of a single ceo or top- productivity rose 80 percent, worker com- management team. John F. Welch, ceo of pensation rose 8 percent, and the top General Electric from 1981 to 2001, is a 1 percent of earners increased their share prominent example. In the 1980s, Welch of national income to more than 23 per- was dubbed “Neutron Jack” for reducing cent.4 The changes in compensation trends ge employment by more than one hundred and top-income shares that began in the thousand (of about four hundred thou- 1980s are striking. sand) and for ½ring each year the bottom Equally striking is the change in tone 10 percent of his managers. Welch also that top corporate executives take with led the old manufacturing company into regard to corporate responsibilities. In 1981, ½nancial services, which came to account as earlier noted, the Business Roundtable for a large proportion of ge’s pro½ts. emphasized stakeholders. But by 1997, Shareholder value and pro½ts soared the same organization of prominent senior under Welch, whose stock options made executives stated: him a very wealthy man. In 1999, Fortune

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The [T]he principal objective of a business enter- this picture. One major change is the rise American prise is to generate economic returns to its of the Asian economies, especially that of Corporation owners. . . . [I]f the ceo and the directors are China. not focused on shareholder value, it may be China has experienced rapid economic less likely the corporation will realize that growth since the late 1970s, when leaders value.5 of the one-party Communist state turned their economy in a capitalist direction. Stock options indeed had apparently China’s rapid industrialization and export aligned the interests of management with orientation have had a major negative those of shareholders. impact, via imports of Chinese goods, on Does the emphasis on maximizing share- U.S. productive capability, especially in the holder value invariably lead to higher stock area of manufacturing. One result is an prices? The evidence is mixed. Stock price enormous imbalance of trade, as imports indexes did trend upward from late 1982 from China are not balanced by a roughly to early 2000. But at the end of 2011 they equivalent counterflow of exports from had barely changed from the levels reached the United States. Instead, China accumu- in 2000. And even if the emphasis on stock lates huge dollar balances and then lends price results in higher stock prices, who them back to the United States by pur- bene½ts? Is maximizing shareholder value chasing U.S. debt securities. The trade good for the country as a whole? To answer imbalance has led to a large increase in that question, one must ask who owns the availability of cheaper consumer goods. the stock. If, for example, stock ownership Wal-Mart, among other retailers, is a great were spread evenly across the U.S. popu- outlet for these Chinese goods. While lation, rising stock values would have a this has bene½ted American consumers, widely bene½cial effect. On the other hand, it has come at a high cost to parts of the if one person were to own all stock, it is American economy. doubtful that it would be in the national China’s approach to trade is best de- interest to have all corporations and their scribed as traditional mercantilism, a employees working to make that one per- pattern of government policies aimed at son even wealthier, especially if they had advancing a nation’s industries in world to hold down wages to do it. trade. China’s actions, which include mis- The actual situation is in between, but priced currency, subsidies, and the rapid it is close enough to the second case to be appropriation of foreign know-how, allow worth mentioning. The most recent (pre- many Chinese industries to compete on crisis) data show that the wealthiest 1 per- the world scene with prices and capabili- cent of Americans own roughly one-third ties that would otherwise have required of the value of all shares, that the wealth- decades to attain. The effect on many iest 5 percent hold more than two-thirds American industries has been devastat- of the value of all shares, with the other ing. Business scholars Gary Pisano and third spread over the remaining 95 per- Willy Shih have enumerated the long list cent.6 Ownership of U.S. corporations is of high-tech goods no longer made in the highly concentrated. United States.7 Meanwhile, U.S. global corporations, in The preceding section traced the grand their normal pursuit of pro½ts, are strongly outlines of what has been happening in aiding the industrialization of China. the U.S. economy in recent decades. But They are also to a large extent using China other changes are transpiring underneath as a manufacturing base to supply the

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U.S. market. Either alone or in joint enter- What does theory have to tell us about Ralph prises with Chinese corporations, U.S. the overall impact of these developments? Gomory & Richard corporations are building plants in China Many economic observers believe that Sylla that enhance both that country’s produc- when you lose manufacturing, for example, tive abilities and its technical know-how. it is because your comparative advantage The goods imported from these enter- is somewhere else; that it is more bene- prises contribute largely to the enormous ½cial to let market forces move you in the imbalance of trade. The result is $2–3 direction of your comparative advantage; trillion at the disposal of the Chinese gov- and that it is a mistake in these circum- ernment for the purchase of more U.S. stances to try to hold on to what you once Treasury securities–or, as seems more had. likely in the future, for the acquisition of These views, however, follow most stan- American companies and their technolo- dard economic models in assuming that gies. In addition, U.S. corporations are countries have ½xed capabilities. With ca- increasingly locating their R&D in China, pabilities ½xed, the action of market forces providing a further and direct way for will indeed respond in the way described, China to acquire American technologies. and thus the free-market, free-trade result Competition from China has highlighted is bene½cial. But what are the effects on two general attitudes toward U.S. manu- the home country when a trading partner facturing. Some lament the destruction changes its capabilities? To be speci½c, of American manufacturing, which is tra- what is the effect on the United States when ditionally high wage, R&D intensive, and China does not hold its capabilities ½xed, the greater part of U.S. exports in inter- but instead substantially improves them? national trade. They ask where our man- Economic theory does not assert that ufactured goods will come from if we do when a trading partner improves its capa- not make them and do not have anything bilities, and then market forces act on on the same scale to trade for manufac- these new capabilities, the new free-trade tured imports. result is better for the home country than Others believe in a “new economy” in the situation that existed before the change. which manufacturing is off-shored. Amer- In fact, it can be harmful.9 According to ica creates the design; those with devel- standard models, a trading partner’s ini- oped manufacturing skills and perhaps tial development is good, but as that part- lower wages build what we design. Amer- ner moves from less developed to more ica specializes in R&D and innovation; the developed, further development can be- duller and older things that have become come harmful. The result is a decrease in commodities are made abroad. This view the home country’s gdp.10 This theoreti- is intrinsically appealing. It is pleasant to cal result takes into account all the effects; imagine that inventive Americans will it includes the consumer bene½ts of design new products and leave the grunt cheaper goods from the newly developed work of making them to other nations. partner (China) as well as the negative Although this view is popular in some impact of losing productive industries in academic and ½nancial circles, its quan- the home country (the United States). titative underpinnings are weak. R&D is Hence, the simple assertion that free simply too small a part of industrial trade is bene½cial does not enable us to activity across the board to replace the conclude that China’s development is loss of manufacturing.8 good for the United States. (And recall that China’s current approach is more

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The accurately described as mercantilist than The industrial revolution of the late American as free trade.) It is more reasonable to say 1800s changed this world. Steel mills and Corporation that theory expects China’s development factories sprang up, and people migrated to have a negative impact at some point. on a large scale to the new production Indeed, that point has likely been reached. centers. Economic activity became increas- We remarked earlier that U.S. global cor- ingly the province of large organizations. porations are strongly aiding China’s rapid Agriculture itself gradually became more development. We cannot, therefore, ignore the mechanized and less people-intense, and possibility that the interests of our global corpo- it was organized increasingly in large cor- rations and the interests of our country may porations. have diverged. These developments have fundamentally changed our way of life. The goods Nobel laureate Michael Spence looks we consume today are too complex to be beyond U.S.-China trade in particular to made at home, on a family farm, or in a describe the overall negative effect of glob- small shop; they require large organiza- alization on the U.S. economy. Spence also tions to create them. You cannot manu- goes beyond the overall economic effect facture a car in your garage; it takes a to describe the effects on different parts large-scale organization to do it. The food of American society. He concludes that we eat is rarely produced by a family on a globalization has led to higher levels of nearby farm, but is instead made by large unemployment, particularly in manufac- organizations on highly mechanized farms turing industries that compete with im- with machinery produced by other large ports, and that it has widened income organizations, and then is transported on disparities within the country.11 Spence’s highly organized networks to huge outlets. analysis reminds us to consider not only The same is true of services; you cannot how U.S. industries and corporations are organize a telephone network on your own. faring on the world stage, but how well The goods and services we consume they are serving American citizens at home. today are primarily created by organiza- To begin this discussion, we must ½rst tions, not individuals. To contribute to the ask what we as Americans want from our economy today, an individual usually must corporations. Only then can we measure be part of an organization. Being part of current circumstances against our ideals. an organization is what most people must do in the modern world to earn a To do this sensibly we need a historical living and support themselves and their perspective on the corporation. It is im- families. Therefore, the fundamental social portant to remember that from the earliest role of business organizations, usually cor- times until the middle of the nineteenth porations, is both to produce ef½ciently century, most of the world’s work was the goods and services that are consumed done on small farms or in small shops. in the modern world and–equally impor- This traditional world was dominated by tant–to enable people to participate in agriculture and the need to provide food. that production, so that they earn a share Large organizations, with the exception of the value produced for themselves and of the army, the navy, and the church, were their families. almost nonexistent. This was the world With this background in mind, we in which Adam Smith and David Ricardo suggest that Americans can reasonably lived and which they described in their expect two things from our corpora- influential economic writings. tions12:

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1) Productivity: Our corporations should creased productivity, as noted earlier, Ralph be productive, each contributing as have gone to the top economic tier. The Gomory & Richard much as possible to the total of goods resulting concentration of wealth and its Sylla and services produced in the United attendant political power threatens the States. It is the sum of these efforts that nature of our democracy. Three decades makes America prosperous. of this realignment merits a low grade, charitably a D. 2)Sharing: Our corporations should provide productive and well-paying jobs so that the value the companies create Currently, the dominant motivation of is widely shared by Americans. This the American corporation is to maximize widely shared wealth gives the nation pro½ts and raise stock price in the interest and its people economic security and of shareholders. While this is often regard- political stability. ed as a legal requirement, it is not. Corpo- rate directors owe their ½duciary duties These expectations sound very different not to the shareholders, as is often thought, from the present goal of maximizing pro½t but to the corporation.13 Indeed, it would and shareholder value. They are closer to be surprising if the law prescribed share- the role that corporations played during holder value as the only goal given that the the prosperous 1950s and 1960s, when in- Business Roundtable, as early as its 1981 terests other than those of the top exec- statement quoted above, publicly urged utives and large shareholders were also the consideration of many other factors. taken into account. Despite its lack of legal standing, the If these are the goals, how well are U.S. sway of “maximizing shareholder value” corporations doing? They are doing well appears absolute. In today’s large corpo- by their own criterion of maximizing prof- rations, shareholders are distant from the itability and (less certainly) shareholder company and their sole attachment is to value. In fact, major corporations have had the shares they hold, although they usu- record pro½tability in recent years, even ally hold them for only a short time. Cor- though the nation has been racked with porate results, if the goal is shareholder declining incomes, high unemployment, value, are easily measured; companies that and languishing stock prices. do not measure up will see a change of But corporations are not doing very well ceo or of the board, or possibly a hostile by the two criteria we list above. With takeover. respect to the ½rst criterion, gdp has in- If we assume that this motivation is un- creased more slowly in recent years, and changeable, then the road to better social the most productive sectors affected by outcomes must lie in making these out- corporate globalization are no longer the comes more pro½table for corporations. growth areas of the U.S. economy. Our We begin by discussing ways to improve high-tech and manufacturing areas have the performance of corporations on our been among the hardest hit. On the ½rst ½rst criterion, which, in homely terms, is criterion, therefore, we are hard pressed about making a bigger total pie (gdp) for to award a grade better than C. Americans without concern for how it is On the second criterion, we have seen divided up. only small returns to most Americans over the last thirty years, the period in which Given the strong negative influence that the shareholder view overtook the stake- Asian mercantilist policies have on our holder view. Almost all the gains from in- corporations, one measure that must be

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The considered is tariffs. Tariffs have had a long If other countries retaliate by imposing American history in this country. Although econ- tariffs and reducing imports from the Corporation omists almost unanimously resist the United States, the number of import imposition of tariffs and almost automat- certi½cates issued will automatically de- ically support free trade, no economic crease so their ability to export their goods theory says that persisting in free trade is to the United States is also reduced. This the best response to mercantilism. Modern creates an incentive not to impose tariffs. developments in strategic trade theory in Alternatively, if they retaliate by adopt- fact suggest the opposite. Nor does the ing a similar import certi½cate system of history of tariffs or other restrictive mea- their own, the result is a world of more sures provide an unambiguous guide to balanced trade, a desirable outcome. their usefulness or harmfulness. Another quite different but also tradi- The situation in which tariffs are applied tional method employed in the United as well as the form of tariff can affect the States is to use the individual or corporate outcome. In a 2003 Fortune article, Warren income tax to bias individuals or corpora- Buffett proposed what he called import tions toward desired social goals. In the certi½cates.14 Buffett’s import certi½cates, case of the individual, there are tax advan- while certainly a form of tariff or quota, tages given to promote homeownership, are closely connected to what economists and in the corporate case there has been a refer to as cap and trade. reduction in the corporate income tax Cap and trade is familiar to economists based on the company’s growth in R&D through its application to air pollution. spending. In the case of air pollution, the total of What is suggested here is to use the cor- allowable emissions is decided on in ad- porate income tax to provide direct incen- vance and is called the cap. Pollution cer- tives for companies to have high value- ti½cates are then issued, each allowing a added in the United States. While Asian certain amount of pollution, with the total countries have provided such incentives, of the certi½cate amounts equal to the cap. usually by deals with individual companies, These certi½cates are then sold in an open an approach better suited to the United market, and those companies with pollu- States and to the capabilities of the Amer- tion most expensive to control end up with ican government would be an across-the- the certi½cates. board approach: reward all companies for Similarly, a cap can be put on imports, creating high value-added in the United and permits to import can be issued and States, whether they achieve that goal traded. In order to balance trade, the cap through R&D and advanced technology or (or total of import certi½cates issued) is set by ½nding ways to improve production of equal to, for example, the previous year’s goods and services. exports. If the U.S. government issues the One form that such an incentive could certi½cates, it is a source of revenue. If the take would be to lower a corporation’s in- certi½cates are instead earned by exporters come tax in proportion to the value added in quantities scaled to their exports, the per U.S. employee. Such a tax could be price obtained by selling them in an open made revenue neutral by having a high tax market becomes an incentive to export. rate for unproductive companies and a low As economies adjust to the presence of tax rate (or even a subsidy) for productive the certi½cates, the certi½cate value can be companies. Depending on the rates, the expected to move toward zero. incentive could be strong or weak.

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Many forms of this approach can be of the business insurance market. Coop- Ralph considered. An approach better suited to eratives are more common in Europe, but Gomory & Richard an economy struggling with unemploy- in the United States they have had a sig- Sylla ment would be to reward companies for ni½cant presence in agriculture, farm their total value added in the United credit, federal home loan banks, rural elec- States rather than productivity or value tric service, mutual insurance, and credit added per employee. With such an incen- unions. There is also a recent movement tive in place, a company moving work advocating so-called B corporations, overseas would suffer a tax disadvantage. which are required to create a bene½t for There are many variants of these general society as well as for shareholders.16 approaches that can be considered. We These corporations represent a return to are not alone in thinking that it is a direc- the earliest concept of the corporation in tion worth considering. As Jeffrey Immelt, U.S. history, which was to achieve a spe- ceo of General Electric, stated in 2007: ci½c public purpose stated in the charter “If the U.S. government wants to ½x the of incorporation. trade de½cit, it’s got to be pushed; ge Perhaps most interesting, however, is the wants to be an exporter. We want to be a possible evolution of the corporate form good citizen. Do we want to make a lot of itself. As we remarked above, early corpo- money? Sure we do. But I think at the end rations in the United States were legisla- of the day we’ve got to have a tax system tively chartered, with charters especially or a set of incentives that promote what made for each corporation. Charters laid the government wants to do.”15 out the corporate responsibilities and basic governance procedures; often the charter Next we need to consider the second was for a limited time, not perpetual. goal, which bears on who gets how much Such charters, whether given by states or of the bigger pie. The focus on shareholder by the federal government, could be a value as the only corporate goal is a recent way of creating corporations that do better development. While it has the advantage on the second of the two corporate goals of simplicity and measurability, it also we laid out, providing American workers pits wage-earners directly against those with well-paid jobs. whose interest is mainly in share price: One form of such a corporation could be that is, the shareholders and top execu- a corporation that is pledged to be value- tives. There is no concept of sharing or added maximizing rather than pro½t distributing the fruits of greater produc- maximizing. Maximizing value added is tivity. Perhaps we should consider other measurable, just as maximizing pro½t is. forms of organization. The following sug- Furthermore, as it is the sum of value gestions are intended to provoke thought, added by individuals and organizations not provide a solution. But we do think in a country that adds up to gdp, maxi- that such thought is needed. mizing value added makes the total eco- Other forms of organization–namely, nomic pie as large as possible, without mutual corporations and cooperatives– specifying what share of the value added have a signi½cant history in the United is to be wages and what is pro½t. This is States. In the insurance industry, the mu- the essence of our ½rst goal. If manage- tual form serves more than 135 million ment’s compensation is tied to value added auto, home, and business policyholders; rather than pro½t, all parties–wage- it accounts for 50 percent of the automo- earners, shareholders, and management– bile/homeowners market and 31 percent can gain from greater value added, and

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The this is an incentive for them to work Berle and Means said, “the former would American together to increase it. appear to be the lesser of two evils.” Corporation Dividing the value added is where there But there was a third choice. Since pas- is conflict, which the present pro½t-max- sive shareholders had surrendered con- imizing arrangement settles entirely in trol of, and responsibility for, corporate favor of those who are compensated by management, and since managements had pro½t. This approach leaves out the wage- made no case that corporations should be earners. We have seen the consequences operated in the interest of managers: of that division over the past thirty years. They have placed the community in a posi- In a world of companies devoted to tion to demand that the modern corporation maximizing value added, there could be serve not alone the owners or the control many ways to divide the portion of the but all society. . . . [I]f the corporate system is value added that is available for wages to survive . . . the “control” of the great cor- and pro½ts. Some companies will give as porations should develop into a purely much as they can to pro½ts, making them neutral technocracy, balancing a variety of indistinguishable from today’s pro½t max- claims by various groups in the community imizers. They may ½nd it easier to raise and assigning to each a portion of the in- money in the stock market. Some compa- come stream on the basis of public policy nies may choose to give more in wages, rather than private cupidity.17 and they may ½nd it easier to hire and keep good people. Some may choose to American corporations from the 1930s excel in being environmentally friendly. to the 1980s appeared to follow Berle and Were such a change in the purpose of Means’s third choice, or what might be the corporation to be adopted we might called the stakeholder view of the corpo- become a nation with a great variety of ration. That changed when stock options companies, all in their different ways came in to align the interests of share- adding to the gdp and many adding to a holders and top managers, seemingly better distribution of income, wealth, solving the conflict of shareholder and and, in turn, political power. managerial interests that Berle and Means had exposed. With shareholders and Adolf Berle and Gardiner Means, in the management aligned, however, other last chapter of The Modern Corporation and interests took a back seat. Perhaps it is Private Property, expressed doubts about time to consider a different problem: how two views of the corporation. One was do we align the actions of corporations with the the view that the corporation belonged to broader interests of the country?18 This is the its shareholders and ought to be for their problem we have been addressing in the sole bene½t. They questioned this view last part of this essay. because passive shareholders had ceased The great American corporations today to have power over, or any responsibility are doing well for their top managers and for, the management of corporations. shareholders, but this does not mean that The other view was that the management they are doing well for the country as a that controlled a corporation, possessing whole. The growing concentration of powers obtained on a quasi-contractual income and wealth threatens both the basis, “can operate it in their own inter- long-range productivity of the country, ests, and can divert a portion of the asset through extensive off-shoring, and its fund or income stream to their own long-range internal stability, through a uses.” If these were the only two choices, growing concentration of wealth that

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carries with it political as well as econom- the economics profession and, indeed, Ralph ic dominance. These issues and what to from all Americans. Gomory & Richard do about them deserve more thought from Sylla

endnotes * Contributor Biographies: RALPH GOMORY, a Fellow of the American Academy since 1973, is Research Professor at the New York University Stern School of Business. He was for many years President of the Alfred P. Sloan Foundation. Before that, he spent thirty years at ibm, where he rose to become Director of Research and then Senior Vice President for Science and Technology. He has been awarded the National Medal of Science. His publications include Global Trade and Conflicting National Interests (with William J. Baumol, 2000). RICHARD SYLLA, a Fellow of the American Academy since 2012, is the Henry Kaufman Pro- fessor of the History of Financial Institutions and Markets and Professor of Economics at the New York University Stern School of Business. He is chairman of the board of the Museum of American Finance. His publications include Founding Choices: American Economic Policy in the 1790s (edited with Douglas A. Irwin, 2011), A History of Interest Rates (with Sidney Homer; 4th ed., 2005), and The State, the Financial System, and Economic Modernization (edited with Richard Tilly and Gabriel Tortella, 1999). 1 Robert E. Wright and Richard Sylla, “Corporate Governance and Stockholder/Stakeholder Activism in the United States, 1790–1860: New Data and Perspectives,” in Origins of Share- holder Advocacy, ed. Jonathan G.S. Koppell (New York: Palgrave Macmillan, 2011), 231–251; Richard Sylla and Robert E. Wright, “Corporation Formation in the Antebellum United States in Comparative Context,” forthcoming in Business History (2013). 2 In this era, states would often charge a bonus for chartering a corporation. States also invested in corporations, receiving dividend incomes from them. Sometimes a corporate charter would require the company to provide funding for what otherwise might be a publicly funded organization. And states taxed corporations in various ways. See Richard Sylla, John B. Legler, and John J. Wallis, “Banks and State Public Finance in the New Republic: The United States, 1790–1860,” Journal of Economic History 47 (1987): 391–403; and John J. Wallis, Richard Sylla, and John B. Legler, “Interaction of Taxation and Regulation in Nineteenth- Century U.S. Banking,” in The Regulated Economy: A Historical Approach to Political Economy, ed. Claudia Goldin and Gary D. Libecap (Chicago: University of Chicago Press, 1994), 121–144. 3 The Business Roundtable, “Statement on Corporate Responsibility,” October 1981, 12. 4 See Robert B. Reich, “The Limping Middle Class,” The New York Times, September 4, 2011, http://www.nytimes.com/2011/09/04/opinion/sunday/jobs-will-follow-a-strengthening -of-the-middle-class.html?_r=1. 5 “Statement on Corporate Governance,” Business Roundtable White Paper, September 1997, 1–2, as quoted in George P. Baker and George David Smith, The New Financial Capitalists: Kohlberg Kravis Roberts and the Creation of Corporate Value (Cambridge: Cambridge University Press, 1998), 205–206. 6 Edward N. Wolff, “Recent Trends in Household Wealth in the United States: Rising Debt and the Middle-Class Squeeze–An Update to 2007,” Working Paper No. 589 (Annandale- on-Hudson, N.Y.: Levy Economics Institute of Bard College, March 2010). 7 Gary P. Pisano and Willy C. Shih, “Restoring American Competitiveness,” Harvard Business Review 87 (7–8) (July/August 2009). 8 See Ralph Gomory, “The Innovation Delusion,” http://www.huf½ngtonpost.com/ralph -gomory/the-innovation-delusion_b_480794.html.

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The 9 Ralph E. Gomory and William J. Baumol, “A Linear Ricardo Model With Varying Parame- American ters,” Proceedings of the National Academy of Sciences 92 (1995): 1205–1207. Corporation 10 Ralph E. Gomory and William J. Baumol, Global Trade and Conflicting National Interests (Cam- bridge, Mass.: mit Press, 2000). 11 Michael Spence, “Globalization and Unemployment,” Foreign Affairs, June 2011. 12 See Ralph Gomory, “Country and Company: Part I–Divergent Goals,” http://www .huf½ngtonpost.com/ralph-gomory/country-and-company-part_b_174875.html. 13 Section 8.30(a) of the Model Business Corporation Act (which has been adopted in many states) reads as follows: “Each member of the board of directors, when discharging the duties of a director, shall act: (1) in good faith, and (2) in a manner the director reasonably believes to be in the best interests of the corporation.” The act then follows with an almost identical section on the duties of the corporate of½cers, also requiring them to act in the interests of the corporation. 14 Warren Buffett and Carol J. Loomis, “The Nation’s Growing Trade De½cit is Selling the Nation Out From Under Us,” Fortune, November 10, 2003. 15 An interview with Jeffrey Immelt, in Manufacturing & Technology News, November 30, 2007. 16 See http://www.bcorporation.net/. 17 Adolf A. Berle and Gardiner C. Means, The Modern Corporation and Private Property (New York: Macmillan, 1932), 354–356. 18 Economists might well consider this a different principal-agent problem.

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Unions & Civic Engagement: How the Assault on Labor Endangers Civil Society

Andy Stern

Abstract: American trade unions are a crucial segment of civil society that enriches our democracy. Union members are stewards of the public good, empowering the individual through collective action and solidarity. While union density has declined, the U.S. labor movement remains a substantial political and economic force. But the relentless attacks by the political right and its corporate allies could lead to an erosion of civic engagement, further economic inequality, and a political imbalance of power that can undermine society. The extreme assault on unions waged by Republicans in Wisconsin, Ohio, Michi- gan, and at a national level must be countered by a revitalized labor movement and by those who understand that unions are positive civil actors who bring together individuals who alone have little power. Unions need both structural reform and greater boldness; there are moments in which direct action and dramatic militancy can bring about positive social change. The current assault on labor can be rebuffed, and unions can expand their role as stewards for the public good and as defenders of efforts by the 99 percent to reduce inequality and protect democracy.

The school board members didn’t see it coming. The parents at the school’s town hall meeting seemed to accept that enough had been done about the safety of kids on and near school grounds. Time to move on. But then Lucia, an immigrant from Mexico with an eighth-grade education, took the floor. A janitor in a West Los Angeles of½ce building and the mother of two young sons, she soon captured the crowd with her outspoken complaints about why administrators were not doing more to ensure a safe place for learning. ANDY STERN is a Senior Fellow Other parents admired Lucia, who not only had at Columbia University’s Rich- the courage to confront school of½cials, but also man Center for Business, Law, and had the ability to sum up parental concerns in a Public Policy. He was President of clear way that ultimately brought necessary and the Service Employees Interna- tional Union from 1996 to 2010. He overdue safety improvements to a school plagued is author of the book A Country that by gang violence. Works: Getting America Back on Track “I was a very timid person, honestly, a very timid (2006). person,” Lucia recalled of the period soon after she

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How the had arrived in the United States in the unions and community groups to form Assault early 1990s. “If I had to speak in public, I the New York Civic Participation Project, on Labor Endangers would turn red and would not know what which seeks to galvanize workers around Civil Society to say.” Then she became involved with the jobs and civic issues in their neighbor- Justice for Janitors campaign of Service hoods, such as Queens, Bushwick, Wash- Employees International Union (seiu) ington Heights, and the South Bronx. In Local 1877 in Southern California.1 Miami, United for Dignity, an indepen- Over time, participation in the union dent nonpro½t started by 1199/seiu helped Lucia acquire the knowledge and United Healthcare Workers East, offers con½dence that later enabled her to speak leadership classes to low-wage immi- out at her sons’ school and in other public grant workers. And in Boston, worker settings. “When we were trying to deal centers originally created by seiu Local with overcrowding at the school, I brought 615 provide English-language training, a lot of people to the meetings–my sis- teach computer and leadership skills, and ters, the neighbors, other parents,” Lucia build ties to other community-based said. Applying the training she had organizations. Many unions engage in received in the union local, she used her similar efforts, both with immigrant new civic skills to rally collective action workers and the broader union member- that often got results. ship. The sociologist Veronica Terriquez has studied the seiu janitors’ local and American trade unions are a crucial examined levels of civic engagement segment of civil society that enriches our among union members, including Lucia, democracy. Unions often give a voice at with schoolchildren. “The ½ndings sug- work and in the community to those who gest that union members–indepen- individually lack power, particularly those dently and without prompting from the on the bottom rungs of our economy: union–draw upon their acquired skills immigrants, low-wage workers, people to effect change in their lives,” Terriquez of color, and other economically disad- writes. “People learn to run meetings, vantaged groups. communicate problems effectively, and Every day across our country, union use existing processes and protocols. workers like Lucia not only perform their This empowers people to help them- jobs and contribute to America’s eco- selves and their children.”2 nomic growth and prosperity. They also The study found that mobilizing union volunteer at homeless shelters, coach in protests and participating in union-led youth sports programs, teach Sunday campaigns helped the Latino immigrants School, walk long miles in fundraising transcend barriers, including limited events for breast cancer awareness, regis- English language skills and low formal ter others to vote, and so on. These union education levels. In essence, the janitors’ members are stewards of the public involvement with their union led to good. Their daily acts of citizenship, like greater civic engagement. those of many other Americans, often do During my time as president of seiu, I not come cloaked in the union label. saw ½rsthand many examples of worker While these acts flow from the innate empowerment through labor-initiated desire people have to build a better programs like those in Los Angeles that world, those among the millions of union helped Lucia. In New York City, for exam- families bene½t from both an organiza- ple, seiu Local 32bj joined with other tional framework and a philosophical

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core. Unions empower the individual, ing of society to counter the assault Andy Stern but they do so through collective action waged against them, most recently by and solidarity. Republican governors and legislators The janitors in Los Angeles fought hard in states such as Wisconsin, Ohio, and struggles with antiunion employers, but Michigan. workers stuck together and won decent Emboldened by gains in the 2010 elec- wages and bene½ts, as well as a voice at tions, conservative leaders in those states work.3 Their union-won economic gains and elsewhere pushed quickly to abolish enable them to buy the products and or severely restrict collective bargaining services made and provided by other by unions representing public employ- workers and to pay taxes to support needed ees, teachers, and others. The Republi- public services, such as schools, roads, cans hoped to weaken labor, but in fact clean water, ½re½ghting, and police sparked a resurgence of union and pro- forces. Much harder to quantify on a bal- gressive activism. Within months, the ance sheet are all those daily acts by backlash resulted in some gop legisla- unionists that contribute to the common tors being recalled and a successful state- good, whether they occur at school board wide vote in Ohio overturning the law meetings, church cafeterias, or environ- curbing union bargaining rights. mental cleanups in the neighborhood. The union mobilization in Ohio, Wis- Those are moments of civic good that consin, and Michigan underscores that help bond our society and make it better. trade unions are civic actors that engage Unions empower workers in a variety far beyond collective bargaining. By bring- of sectors that are increasingly marginal- ing together individuals who alone have ized by the problems of our current eco- little power, unions join workers into a nomic and political system: force that regularly contributes to positive • Labor, for example, speaks for manufac- outcomes in the workplace and broader turing workers who continue to lose arenas, including elections and legisla- jobs to technology and outsourcing of tion. work to other countries where labor is Much of the important social legisla- far cheaper. tion that has built a better society came about because of the strong political sup- • Labor gives a voice to teachers and port of labor. Unions backed civil rights school support workers, who are under legislation, Social Security, Medicare, harsh attack from many directions environmental laws, wage and hour laws, even as their unions push for greater the ban on child labor, and much more. resources for schools and improved In recent years, unions such as seiu have teacher performance. given strong support to the struggle for • Organized labor helps health care work- marriage equality and for lgbt rights. ers stand up against unwise changes in Labor’s collective bargaining gains over Medicare and Medicaid funding that many years have helped bring important will hurt the most vulnerable in our progress for all Americans. The bumper society, such as disabled individuals sticker “Unions–The Folks Who Brought who need home care assistance to live You The Weekend” highlights, for exam- decent lives. ple, labor’s role in achieving the forty-hour work week at a time when most Ameri- • Unions enable public workers who pro- cans were forced to work longer hours. vide services necessary to the function-

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How the Few such gains seem possible in 36.2 percent of public-sector workers Assault today’s harsh antiunion climate. Those at belonged to unions–one factor in the on Labor Endangers the very top of our society in terms of recent round of campaigns against public Civil Society wealth, income, and power have captured employees. Over the last half-century, virtually all of our society’s economic union levels in the private and public sec- gains in recent years. Suffering is worsen- tors have swapped places. Unionization ing for those at the bottom, and the rates in the public sector at the end of broader middle class is rapidly eroding. World War II were below 10 percent, Unions are one of the few forces that can while the private sector was at 36 percent. help counterbalance this increased power While union density has declined, the of corporations and the wealthy. actual numbers make clear that the The Occupy movement, which began American labor movement remains a in a park in New York City as a protest substantial force. The Bureau of Labor against Wall Street’s abuses and the cor- Statistics reports that unions represented rosive power of multinational corpora- 16.3 million wage and salary workers in tions over our democratic process, went 2010. Of those, 14.7 million were them- on to de½ne the inequality issue power- selves union members, and 1.6 million fully and simply as the 99 percent versus had jobs covered by–and bene½ting the 1 percent. Unions are a crucial and from–union contracts. When family incontestable component of that 99 per- members are included, unions represent cent, seeking greater economic and polit- a sizable and important bloc of people ical fairness. despite lower union membership rates. (Declines in membership cannot simply Today, the tremendous resources devot- be taken to mean that fewer Americans ed to harsh attacks on unions by gop want unions to represent them. Other political candidates and of½ceholders, factors, such as the decline of unionized conservative pundits such as Glenn Beck manufacturing through off-shoring and and Rush Limbaugh, and their corporate displacement of jobs owing to new tech- and right-wing allies might lead one to nologies, have contributed to fall off in think that labor has gained massive union membership. The economic col- power over America’s businesses and lapse that began in 2008 has also been a politics. But a clear look at the current factor.) state of unions provides a different and Unions are still a powerful force in key more complex picture. In reality, unions states as well. New York, for example, is have signi½cantly less agenda-setting home to 2 million union members (24 power than the gop would have voters percent) and California to 2.4 million believe; yet they still function as a (17.5 percent). Not unexpectedly, the signi½cant counterweight to other, less- eight states with union membership rates democratic power centers of American below 5 percent in 2010 were all in the life. South, with the lowest being North Car- The union membership rate in 2010 olina (3.2 percent).5 was 11.9 percent, down from 12.3 percent It pays to belong to a union that can the previous year4 and down from about bargain collectively for its members. 36 percent in 1945. The percent of wage Despite declining membership rates, and salary workers who were members of workers who belong to unions had me- unions in the private sector in 2010 dian weekly earnings far above their dropped to 6.9 percent. By contrast, some nonunion counterparts. In 2010, union

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members took in $917 per week, com- ers today comes because of the declining Andy Stern pared to only $717 per week for nonunion union membership rates that erode workers.6 labor’s ability to win a fair share of the One of labor’s contributions to the economic pie. Increasingly, larger and broader good over the years has been that larger pieces of that pie go to sharehold- many Americans not in unions have seen ers, executives, Wall Street bankers, and their wages and bene½ts improve as a others at the top. result of union gains at the bargaining table. In their efforts to keep unions out, The Occupy movement, and the alliances employers have had to raise pay, at times that unions formed with it in 2011, repre- provide health care/pensions, and even sented popular dissatisfaction with the treat workers with more dignity on the status quo–a status quo that has arisen job. Even opponents of labor tend to con- as unions have been vili½ed and have lost cede that a rising union tide lifts many leverage to ½ght for a fair share of eco- nonunion boats, particularly in tight nomic gains not only for their members, labor markets. That may be one reason but for the American middle class in gen- why historically pacesetting unions, such eral. It is stunning, in fact, that weekly as the United Auto Workers (uaw), have earnings for rank-and-½le employees been vili½ed in recent years. Employers today have not increased in real terms for and union opponents understand that decades. Some segments of the current forcing concessions in flagship collective workforce now earn less in real terms bargaining sectors can help slow, and than they did thirty years ago. even reverse, worker gains throughout Government data released in October the economy, union and nonunion. 2011 revealed that median pay for all One might hope that more Americans American workers fell in 2010 to $26,364, would examine the strong contracts down 1.2 percent from the previous year. negotiated by the uaw, Teamsters, Median pay was at the lowest level, after police/½re½ghters, seiu, and other unions adjusting for inflation, since 1999. Cer- and say: “Look at the good wages and tainly, factors such as increased global- bene½ts they have; what do we need to do ization, expanded use of technology, new to get our employers to start paying the entrants into the workforce, and the eco- same?” Too often, however, the argu- nomic collapse that began in 2008 all ment is made that union workers have it contributed. But another major factor is too good and they should be brought the decline in the bargaining power of down. That is the path to the low-road unions. economy we are on, rather than the high- Research on income numbers by David road economy that we need–and that Madland and Nick Bunker at the Center other nations, such as Germany, have for American Progress has found that if achieved. unionization rates increased by 10 per- The United States needs a prosperous centage points–to roughly the level they middle class if it is to be economically were at in 1980–the typical middle-class strong. Henry Ford understood this near- household, unionized or not, would earn ly a century ago when he increased Ford $1,479 more. “One thing is clear,” the workers’ pay dramatically because he study’s authors argue, “stronger unions wanted them to be able to afford to buy make a stronger middle class.” They con- the cars they were building. Some of the tinue: downward economic pressure on work-

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How the A stronger middle class is the foundation an inequality gap, nor do we see the Assault for a vibrant American economy. [Unions] broad corporate and right-wing attack on on Labor Endangers ensure that workers are considered in cor- unions that characterizes our current Civil Society porate decision-making and provide job American dilemma. German employers training that helps workers advance in generally work cooperatively with their careers. In the political arena, unions get unions. Both custom and statute require workers involved to boost voting rates, and that unions and works councils have key are champions of economic programs that decision-making powers. create a strong middle class. They pushed Instead of the U.S. model of weakening for and have defended Social Security, unions, Germany’s model of a strong Medicare, family leave, the minimum wage, labor movement has helped yield higher and more recent policies, such as health wages than those in America, huge trade care reform.7 surpluses, six weeks of annual vacation time, and other bene½ts by law. As op- Other research by sociologists Bruce posed to the anti-labor warfare that we Western and Jake Rosenfeld has found have seen in Wisconsin, Ohio, and Mich- that the decline of unions accounts for igan, German employers, labor, and gov- one-third of the rise in inequality in the ernment normally all pull together. Not United States over the last thirty years.8 everything is rosy, and there are excep- Inequality is the enemy of a strong democ- tions in Germany; but results there show racy that has the vital civic engagement alternative approaches that could strength- of its citizens. The share of pretax income en labor-management outcomes here. taken by the richest 1 percent of Ameri- cans more than doubled between 1974 and 2007, rising to 23 percent from 9 percent The assault on organized labor in the according to the U.S. Census Bureau. And United States comes at a time when the ultra-rich, the top 0.1 percent of Amer- Americans of all demographics and per- icans, took an astounding 12.3 percent of suasions need to act collaboratively to America’s total pretax income–four develop creative new ideas to move our times what they took in the mid-1970s. economy into the twenty-½rst century, Some pundits argue that workers are and to put our country back on a path of just caught up in a world economy where sustainable growth. The German exam- inequality is inevitable. But a study by ple is illustrative of the economic power, Thomas Harjes, an economist for the and social prosperity, that arises from a International Monetary Fund, reported healthy working relationship between that from the late 1970s to the early organized labor, companies, and govern- 2000s, inequality in Europe “rose mod- ment. estly or even declined” while it skyrock- I sometimes hear people (some of them eted in the United States. Those Euro- liberals) argue that unions were needed pean countries where unions were strong earlier in our country’s history when faced the same globalization and tech- abuses such as child labor and unrelent- nology challenges, yet did not develop ing work hours were real problems. Now, the wide inequality gap seen in the Unit- they assert, unions have outlived their ed States. France, for example, saw a usefulness in the modern economy. When decline in inequality over the last twenty one reads of janitors at the nonunion years, according to Harjes.9 company Wal-Mart being locked inside Germany, as noted above, has a strong stores for their entire shifts, coal miners labor movement and has not developed killed in disasters like the nonunion

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Massey tragedy in West Virginia, and the occur in most workplaces? The clearest Andy Stern Latina women at Chef Solutions in Con- reasons involve the harsh antiunion cam- necticut being forced to trade sex with paigns waged by companies and their managers to keep their jobs, it is dif½cult hired consultants, as well as the overall to ignore how weak this argument really weakness of our labor laws and their is. Unions need to adapt their practices enforcement, as Dine has pointed out. In for a new era, but there is no discounting a 2007 study, the Center for Economic their necessity in protecting the rights of Policy Research found that one in ½ve workers. active union supporters is ½red illegally The constant anti-labor drumbeat from as a result of union organizing activities.12 corporate powers, the right wing, and Another study, by labor expert Kate much of the media, led by Fox News, has Bronfenbrenner, reported that 80 percent an impact on our society and its workers. of employers who face a union organiz- But there are many indicators that a sub- ing campaign force workers to go through stantial number of workers would choose one-on-one, captive-audience meetings to be represented by a union if they in which they pressure workers with could. In 2007, a poll by Peter D. Hart threats, such as the closing of the Research Associates found that among plant/workplace or transfer of work else- nonunion workers, a majority (53 per- where.13 Only about 1 percent of compa- cent) said they would vote to have a nies make good on threats to close, but 51 union tomorrow, given a free choice.10 percent of them threatened such closures Were that to occur, more than sixty million (even though it is illegal to do so). Bron- workers would be added to the union fenbrenner also found that more than rolls. As the veteran labor expert Philip half of the employers with immigrant Dine writes, “If even one-quarter of workers threaten to call immigration those 60 million workers actually formed of½cials during union drives. unions, the size of the labor movement Human Rights Watch, which conducts would double overnight.”11 highly respected objective examinations The harshness of today’s economy has of abuses occurring around the world, added to support for labor. In 1984, only focused more than a decade ago on Amer- 30 percent of nonunion workers polled ican workers’ freedom to form unions said they would vote to join a union if they and engage in collective bargaining. “Our could. That support rose to 39 percent in ½ndings are disturbing, to say the least,” 1993, 42 percent in 2001, and then 53 per- said the study’s authors. “Loophole-ridden cent in 2007. The desire to have union laws, paralyzing delays, and feeble en- representation thus grew over a period forcement have led to a culture of impu- when employers’ economic and political nity in many areas of U.S. labor law and power expanded and that of labor weak- practice. Legal obstacles tilt the playing ened. It is no coincidence that the con- ½eld so steeply against workers’ freedom centration of wealth at the upper echelon of association that the United States is in of society and the downturn of a prosper- violation of international human rights ous economy occurred at a time when standards for workers.”14 A similar study workers’ voices were often suppressed by today would ½nd the situation even worse. employers and antiunion politicians. The modest reforms in the Employee What explains the gap between those Free Choice Act proposed after the 2008 majorities now expressing support for election would have helped restore some joining unions and the failure of that to balance and would have given workers a

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How the fair chance to join unions. But that did stands out. Their actions in 2011 not only Assault not occur, largely due to the ½libuster denied workers the right to collective bar- on Labor Endangers process in the Senate. gaining, but violated both international Civil Society Labor issues are not the only ones norms described below and also, inextri- derailed by the ½libuster and other forms cably, delivered a harsh blow to the prin- of political obstructionism. The threat of ciples of civic engagement that uphold ½libusters has effectively required a super- and strengthen a robust democracy. majority of sixty votes in the Senate to Although much of the attack on unions pass legislation. This severely weakens following the 2010 elections has been at democracy and undermines civic engage- the state level, it can be seen also at the ment by discouraging the sense among national level: in the Republican-con- workers and the broader public that pos- trolled House of Representatives and on itive change can occur if people work the campaign trail for the 2012 gop pres- hard to win popular support for it. As we idential nomination. Mitt Romney, the look to the future, it is hard to see mean- 2012 Republican presidential candidate ingful labor law reform absent a change (and one perhaps less extreme than oth- in the ½libuster rules, even if a majority of ers he defeated for the nomination), the Senate and House as well as the presi- repeatedly blasted unions during his dent and the public all support it (as they campaign appearances. He lavished praise did early in President Obama’s tenure). on Wisconsin Governor Walker for win- The inability to win a supermajority to ning passage of the bill to outlaw public- pass labor law reforms and the renewed sector bargaining, and he ended up sup- attacks on labor following the 2010 elec- porting Ohio Governor Kasich’s sweep- tions, particularly on public employees ing antiunion agenda that then was and teachers, bode ill for the future, rejected overwhelmingly by Ohio voters despite President Obama’s reelection and in November 2011. Democrats’ success in 2012 Senate races. Romney in mid-October 2011 reversed A key issue then is how labor can expand his earlier opposition to right-to-work civic engagement of its members if it laws and came out in strong support of must devote almost all its energy to sur- national right-to-work legislation that vival amidst this onslaught. would bar even union security agree- I strongly believe that the relentless ments requiring nonmembers to pay for attacks that weaken American unions will representational services. In his televi- likely lead to an erosion of civic engage- sion ads, Romney began to feature his ment in the United States, further eco- support for right to work. He also devot- nomic inequality, and a political imbal- ed great energy to attacking the National ance of power that can undermine socie- Labor Relations Board (nlrb), particu- ty. Those who support a democracy with larly on the now-resolved complaint ½led the thriving civil engagement of its citi- by nlrb Acting General Counsel against zens need to lend their voices in support Boeing’s decision to relocate work to of organized labor and necessary mea- South Carolina from Washington State in sures to strengthen unions, rather than order to retaliate against unionized work- allow the erosion that is occurring today. ers engaging in activities protected under The extreme and unacceptable assault on labor law.15 Romney went so far as to unions waged by Governors Scott Walker appoint Boeing’s lead counsel in the (Wisconsin), John Kasich (Ohio), Rick nlrb case as his labor advisor for the Snyder (Michigan), and others truly presidential campaign.16

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Not to be outdone, Republicans in the questions. For example, the Nordic coun- Andy Stern House passed legislation on November tries, where democracy and civic engage- 30, 2011, to negate an nlrb rule that ment thrive, have very strong unions, sought to give workers a timely vote on very low levels of inequality, and good whether or not to be represented by a economic growth. Canada, our neighbor union, rather than the current procedure and trading partner to the north, has that allows long delays by employers strong unions (including seiu) and a opposed to unions. Although the Senate union density of above 30 percent–more is unlikely to pass such legislation, the than twice that of the United States. Ger- gop-led House persists in its war on many, as noted, has powerful trade unions labor. and tough laws that give workers a strong Why? Harold Meyerson, a columnist voice in corporate decision-making. Yet for The Washington Post, analyzed Repub- business thrives in these countries, and lican motives this way: everyone bene½ts from unions and management working together for common When it comes to elections, unions are still goals. the most potent mobilizers of the Demo- cratic vote–getting minorities to the polls oth the hostility of the corporate and and persuading members of the white B political right toward unions and labor’s working class to vote Democratic. Indeed, powerful role as a steward of the com- Republican gains among working-class mon good have roots in American histo- whites (whom they carried by an unprece- ry. Unions actually predate our country’s dented 63 percent to 33 percent in 2010) founding, as some nonagrarian workers are, above all, the result of the deunioniza- pushed for a greater say than that of the tion of that class. An analysis of exit polling old master-servant relationship.18 Despite over the past 30 years shows that unionized current reverence for the founding fa- white working-class men vote Democratic thers, it is important to remember that at a rate 20 percent higher than their non- civic engagement and political democra- union counterparts. For political reasons, cy had clear limits in America’s opening Republicans are determined to deunionize century and even beyond. Voting in most workers even more.17 states was restricted primarily to white For unions to be a catalyst that encour- property-owning males. Women, Native ages and reinforces positive levels of civic Americans and people of color (both slave engagement by their members, unions and free), and most wage earners had have to exist in the ½rst place. The coun- their civic participation severely restrict- tries that scholars regularly judge to have ed by law, as John Kretzschmar, director the most vital civil societies often are those of the Brennan Institute for Labor Stud- in which unions thrive and are accepted, ies, has pointed out.19 usually as one of the three “social part- Judges here relied on British law in the ners” along with business and govern- absence of statutes on unions and bar- ment. gaining; as a result, America’s early unions I would challenge labor opponents, such were viewed as illegal criminal conspira- as those in Wisconsin, Michigan, and cies. Employers could form groups to Ohio and in the Republican-controlled advance their interests, but employees House, to name a true democracy that who did so by joining unions engaged in does not have a labor movement partici- illegal behavior. Over time, wage earners pating in the debates on major public who were not property holders agitated

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How the and often got voting rights; workers also collective bargaining. After World War II, Assault began ½ghting for expanded rights on a consensus emerged that unions were on Labor Endangers economic matters. crucial to democratic societies as war- Civil Society Unions remained illegal conspiracies in torn nations sought to rebuild. Japan had many jurisdictions until the 1930s. As abolished unions, but General MacArthur unemployment rose to 25 percent by 1932, and the Allies restored them in 1946. a series of laws were passed that helped Most signi½cant from the standpoint of unions. The National Industrial Recov- civil engagement was the discussion and ery Act adopted in 1933 sought greater adoption, with U.S. support, of the Univer- fairness for workers through provisions sal Declaration of Human Rights by the that stated: “Employees shall have the United Nations General Assembly in 1948. right to organize and bargain collectively The declaration is widely viewed as a cen- through representatives of their own tral pillar of international human rights choosing, and shall be free from the law. It spells out a range of rights to which interference, restraint, or coercion of em- every individual is entitled, including the ployers.” Although a conservative U.S. rights to life, liberty, equality of treatment Supreme Court quickly deemed the pro- before the law, freedom of movement, labor legislation unconstitutional, the right to own property, freedom of thought Wagner Act passed by Congress in 1935 and religion, freedom of expression, and led to expanded union organizing in the many others. Article 23 speci½cally pro- years that followed. vides: “Everyone has the right to form and By the end of World War II in 1945, to join trade unions for the protection of union membership rose to more than 14.3 his interests.” It also details other accept- million from about 8.7 million in 1940. ed rights, such as equal pay for equal work Predictably, as labor’s numbers and and decent working conditions. power expanded, political enemies mobi- The global concurrence about the right lized. A conservative Congress targeted to form and join unions was further solid- unions in 1947 with the Taft-Hartley Act, i½ed by what are commonly referred to as passed over President Truman’s veto; Core Labor Standards, a set of four inter- signi½cantly, he called it the “slave labor nationally recognized basic rights and act.” It severely limited labor’s right to principles that countries have agreed to strike, outlawed secondary boycotts, and follow. They are: freedom of association banned closed shops that required an and the right to bargain collectively; the employer to hire only union labor. Oppo- elimination of forced labor; abolition of nents of the legislation pointed out that it child labor; and the elimination of dis- had been drafted not by Congress, but by crimination in employment. corporate lawyers working for the Cham- The discussion of unions and civil soci- ber of Commerce and the National Asso- ety expanded signi½cantly as workers in ciation of Manufacturers.20 Eastern Europe struggled for democracy. Despite the setback of Taft-Hartley in In my late 20s, I watched Lech Walesa, the the United States, there remained a broad Polish trade union leader, rally shipyard and global consensus that labor was an workers in Gdańsk in a series of strikes important component of democracy. The that led to martial law and a vicious Nazi party viewed unions as a threat, and crackdown by the Communist govern- in 1933 Hitler seized funds of German ment. Walesa and the Solidarnosc union unions, arrested labor leaders, sent them movement went on to topple the repres- to concentration camps, and replaced sive regime in Poland.

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President Reagan and many on the on to work as a metalworker in the São Andy Stern political right embraced the Solidarnosc Paulo auto industry. Lula led strikes dur- union very publicly and repeatedly. But ing the late 1970s and was jailed by the here at home, almost simultaneously, military junta. The skills he honed in the Reagan succeeded in busting the air traf½c union movement enabled him to go on to controllers’ union in 1981, setting off a become president of his country. war on labor that has yet to moderate. The crucial role that unions have (The bizarre affection the right has for played in Brazil, South Africa, and other unions abroad but not at home could be countries–from South Korea to Ger- seen yet again in late 2011 during the cam- many–contrasts with the United States, paign for the Republican presidential where the voices of corporations and their nomination. Former gop Senator Rick political allies in the 1 percent have dom- Santorum issued a strong call in Iowa for inated public debate in recent years. This federal government support for labor has occurred for a confluence of reasons, unions–unions, that is, in Iran. Santorum but it is important for labor to take a hard wanted the United States to “have several look at itself and accelerate the process of avenues of getting money into Iran to change if workers are to play a signi½cant help striking labor unions.”21 But on role in shifting the status quo toward pro- labor issues on his home turf, Santorum gressive outcomes. wants to abolish unions that represent federal, state, and local workers; he regu- Just as unions in other countries have larly attacks the nlrb; and he opposes evolved to address tough challenges, so, most everything American unions sup- too, must American unions adapt and port.) change.22 Labor’s 2011 victory in Ohio, The civic role played by unions threat- overturning the harsh restrictions on col- ened those in power not only in Eastern lective bargaining rights by a 62-38 per- Europe, but also elsewhere in the world. cent margin, showed a strong reservoir of The ruling elites in El Salvador in the public backing for union rights and 1980s were complicit in the killing of underscored labor’s ability to reach trade unionists; tens of thousands died at beyond its own ranks to build broad the hands of military-backed death squads. coalition support. A similar show of pub- Under apartheid rule in South Africa, lic support for unions could be seen in independent black trade unions devel- California when voters rejected Proposi- oped negotiating and organizing skills, tion 32, which was backed by the anti- despite suffering torture and death. Labor union Koch brothers (Charles and David). was key to the broad mobilization in the That proposal would have decimated period from 1986 to 1994 that brought an labor’s ability to participate in the politi- end to apartheid; it was then minework- cal process. ers’ leader Cyril Ramaphosa who negoti- Nevertheless, many middle-class Amer- ated the transition to democracy, and icans have mixed views on unions, and many union leaders entered top levels of some feel strongly negative. Much of the post-apartheid government. hostility toward labor is driven by the Lula da Silva, the thirty-½fth president relentless antiunion drumbeat of the of Brazil, is another example of the im- right wing as well as corporate America. portant leadership roles unionists have But some is a by-product of labor’s own played in building civil society globally. shortcomings and the instances in which He left school after fourth grade and went unions have acted in ways that cut

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How the against their role as stewards for society. role as a positive civic force is seen by the Assault Let me focus briefly on a few of the issues public. on Labor Endangers that have fed negativity toward labor. I think, too, of the case of Barbara Bul- Civil Society First, while unions have a lower rate of lock, the former president of the Wash- corruption than that found in either busi- ington, D.C., Teachers’ Union, who served ness or government, there still is a need ½ve years in prison for a scheme involv- for strong efforts by unions to root out ing the embezzlement of nearly $5 mil- wrongdoing within their own ranks. As a lion of union funds to pay for a lavish young activist in my seiu local union in lifestyle of fur coats, jewelry, trips, and Pennsylvania, I saw the corrupt president parties. Her actions unfairly tarred D.C. of the United Mine Workers, Tony Boyle, teachers who every day gave their all in tried and convicted in federal court near tough classroom environments starved Philadelphia for the murder of his elec- of the resources needed to provide quali- tion opponent, Joseph “Jock” Yablonski, ty education for mainly poor kids. and Yablonski’s wife and daughter. Six The American Federation of Teachers years later, James R. Hoffa, who had led (aft) and the D.C. teachers’ union lead- the Teamsters union from 1957 to 1967, ers took appropriate action in that sad sit- went missing near Detroit never to be uation, but whatever damage done by found–presumably murdered by orga- Bullock’s malfeasance was minor com- nized crime elements opposed to his pared to that inflicted by a much broader regaining power within the union. Such and far more sophisticated attack on high-pro½le crimes, while infrequent, teachers’ unions in the years that fol- have severely harmed labor’s image over lowed. A sustained campaign has been the years. waged for some time based on the central Unions, as institutions with millions of (but false) premise that teachers’ unions members, are not immune to wrong- are a root cause of America’s education doing. During my tenure at seiu, I had to problems. trustee a large local in Los Angeles and Many who urge education reform are permanently ban from membership a people of good faith; but some, such as member of our International Executive the antiunion Walton family, who owns Board after evidence emerged that he had Wal-Mart, and Michelle Rhee, former misused member funds. In response, we D.C. school chancellor, are not. Improv- established a Commission on Ethics and ing education in America involves devel- Standards and named outside authorities oping and supporting our teachers, not to it, such as James Zazzali, former Chief constantly attacking them. A study Justice of the New Jersey Supreme Court, released in 2011 found that teacher as well as rank-and-½le members and morale in the United States was at a local union leaders. We sought to twenty-year low. Attacks by those like the strengthen an ethical culture in which Waltons and Michelle Rhee serve only to emerging leaders understand that they prevent a climate in which teachers, are the stewards of their members’ school administrators, parents, and oth- resources; this cannot be done in one ers can work together to build a more training session, but rather must be built effective student-centered educational into leadership development at all levels. system and mobilize to win adequate Tough internal controls also are needed funding for public education. so that unions protect the workers’ It will come as no surprise that I sympa- money and, more broadly, so that labor’s thize with the aft and the National Edu-

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cation Association in this debate. But I do County’s educational program. School Andy Stern think the attacks on teachers’ unions employees voluntarily gave up scheduled have helped fuel a false narrative of raises in the last three years to help cope American labor as a special interest that with the budget crisis in the aftermath of sel½shly protects its own at the expense the economic downturn, yet the union has of the broader society. That narrative has protected important health and pension a special resonance with the public when bene½ts highly valued by its members.23 it involves America’s children, who in Another step in the right direction fact do deserve far better from our educa- occurred in November 2012, when the tion system. It is easy for teachers’ union teachers’ union in Newark, New Jersey, opponents to attack the “rubber rooms” rati½ed a historic agreement that rewards in New York City, where tenured teachers teachers with higher pay and bonuses accused of incompetence or wrongdoing based on performance. Newark teachers received full pay to sit in sparse rooms will have a seat at the table evaluating one and do nothing (until this practice was another, and the contract empowers a ended in 2010). It is far harder to shift the majority of teachers in any school with focus to innovative labor-management authority to decide issues such as how to partnerships, such as those in Cincinnati, adapt school schedules or how to use train- Oklahoma City, and Pittsburgh, where ing and preparation time as they deem in students are bene½ting from teachers and the best interests of their students.24 school administrators working together Public employees face a challenge sim- to transform schools servicing primarily ilar to teachers. Again, much of the attack low-income communities. on public workers is driven by forces The Washington Post, to its credit, last strongly hostile to unions. But labor’s year highlighted the success of the Mont- cause is hurt when citizens read of ½re- gomery County (md) Education Associ- ½ghters in St. Louis who receive large dis- ation, which has worked cooperatively ability pensions for being totally and per- with the school system there to win a role manently incapacitated, yet who go on to in personnel decisions, teacher training, work at new jobs involving physical labor and budget decisions. The teachers’ union while collecting those pensions. We all helped create a peer review system that honor our ½re½ghters for going into seeks to assist struggling teachers, but harm’s way to save lives, but support for also facilitates ½ring in cases where it is them and their union can erode if the clearly justi½ed. Contrary to the argu- public believes it is paying for a costly ment of “reformers” such as Michelle entitlement that is unfairly administered. Rhee who say that it is nearly impossible In California, an outcry occurred in 2010 to ½re a unionized teacher, more than ½ve when an administrator for the Forestry hundred have been dismissed or resigned Department retired with a check for in the last decade in Montgomery Coun- $294,440 for unused time off–one of ty with the union contract in place. At the nearly four hundred employees who left same time, the union has helped convince state jobs with checks equal to or exceed- school authorities that many of the “re- ing their previous year’s salary. Most forms” advocated by the Walton family, people understand that there needs to be Rhee, and others will not help students in some “banking” of time off when public the end. By emphasizing student achieve- workers, such as prison guards or public ment as their primary goal, the union has safety of½cers, are denied vacation or won a broad role in shaping Montgomery holidays due to emergencies or special

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How the circumstances. But the backlash to the and seiu embraced the civil rights move- Assault huge payouts in California clearly hurt ment, fought racism in the workplace, on Labor Endangers public unions and played into the politi- and joined in the push for antidiscrimi- Civil Society cal narrative orchestrated by those whose nation legislation. Unions helped orga- primary goal is to weaken labor. nize the Montgomery bus boycott, joined Public employee unions needed over the Selma to Montgomery march in force, the years to break out from the narrow and worked with Dr. Martin Luther King, constraints of traditional collective bar- Jr., who was assassinated while in Mem- gaining and negotiate instead not only phis to support striking union members. for wages and bene½ts, but also for the Given their mixed record through the delivery of high-quality public services. years, unions today need to face the chal- Management usually resisted such efforts, lenge of becoming more diverse through- but public worker unions are gaining cit- out their leadership, from local unions to izen support by partnering with govern- the very top positions. I used to say fre- ment to improve public services. Citizens quently that union leaders are too often often are frustrated by inef½ciencies and “male, pale, and stale.” In seiu, more than bureaucracy and need to see public work- a million new members joined between ers siding with them in the effort to have 1996 and 2010, and a majority of them services delivered better and at fair cost. were women and workers of color. A con- Yet another problem unions must con- certed effort was made to reflect that in front is the need for greater racial, ethnic, our leadership, and by 2005 we had an and gender diversity in the labor move- executive board that was 40 percent ment. Looking back in history, African women and 33 percent people of color. Americans had to ½ght to join unions, But there is so much more that needs to and many American Federation of Labor be done in this area. (afl) unions in their early years barred Unfortunately, many other unions do blacks from membership, particularly in not do as well at reflecting the diversity of the crafts. My own union, seiu, by con- their memberships. If labor is to prosper trast brought together white and black in the decades ahead, all unions must do a janitors in Chicago in the early 1900s and, far better job of developing multicultural indeed, had an elected vice president and leadership that is more inclusive of women three executive board members who were and people of color. We need more peo- African Americans. By the 1930s, the ple like Mother Jones and A. Philip Ran- Congress of Industrial Organizations doph. I am proud that seiu is today led (cio), made up of industrial unions, by a woman, Mary Kay Henry, a veteran aggressively recruited black members labor organizer who also is a leader in and became an important force for America’s lgbt community, and Eliseo desegregation and antidiscrimination Medina, a respected ½gure in the Latino before many other segments of American community who has helped lead the na- society. tional immigration reform effort. In the 1960s, African Americans made As part of the broad effort for gender up about 25 percent of U.S. union mem- and racial equity, labor needs to embrace bers, but some unions, such as those in the movement for immigrant rights more the construction trades, continued to bar vigorously than it has so far. America black apprentices and otherwise limit needs comprehensive immigration reform African American membership. But at that provides a meaningful legal path to the same time, unions such as the uaw citizenship for undocumented workers.

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In the past, unfortunately, some unions • Refocus on membership growth through Andy Stern saw immigrants from Mexico and Cen- reinvigorated organizing of nonunion tral America as threats to their jobs and workers; mistakenly supported bad immigration policies. Today labor is united in pushing • Modernize strategic approaches to for immigrant rights and works closely employers in the new, competitive glob- with grassroots coalitions of religious al environment; and community groups both for changes • Improve labor’s messaging to the in federal law and also in opposition to broader public, using all the tools of racist and reactionary laws recently enact- modern technology and communica- ed in states such as Arizona and Alabama. tion; Unions need to be out front on the immigration issue both because it is the right • Widen efforts to build coalitions with thing to do and because they will bene½t citizens’ groups, civil rights advocates, church activists, environmentalists, as our country’s demographics grow more lgbt diverse in coming years. the community, and others who share a progressive outlook; and

As labor faces strong attacks from • Expand and improve labor’s political antiunion corporations and the political effectiveness by further involving right, there are a number of other changes workers and their families in the civic that must occur if it is to win and expand process.25 public support. I pressed to modernize and streamline union structures during In future, unions need to streamline. my tenure as seiu president. I based my Many members are divided into national suggestions for reform on changes that unions that do not have the size, strength, had been made within seiu over a num- resources, and focus to win for workers ber of years. Those changes enabled my against today’s ever-larger employers. As union to more than double, to 2.1 million the attack on public workers escalated, members, during my time in of½ce. After we had thirteen unions with signi½cant a long period of internal discussion with- numbers of public employees. Trans- in the afl-cio in the early to mid-2000s, portation workers were divided into ½fteen needed reforms did not seem likely. seiu different unions, health care workers and a group of other unions withdrew into more than thirty, and manufacturing and formed Change to Win. workers into nine. We need consolidation Unfortunately, real reform did not so that labor can bring size, power, and develop out of those events, and changes focus to the table. There are too many are still needed to strengthen unions. The small unions that lack what is needed to labor movement needs to: deliver for their members. When I pushed for change, only ½fteen of the sixty-½ve • Embrace the mission of seeking justice afl-cio national unions had more than for all workers, including, but not lim- two hundred ½fty thousand members, ited to, current union members; and forty had fewer than one hundred thousand. Many of these unions, even with • Confront labor’s own underlying structural impediments and those of its good leadership, do not have the strength af½liates; to unite more workers in their industry in order to improve workers’ lives and civic engagement.

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How the I have proposed, as have others, that we matic militancy can change things. Labor Assault seek to unite the strength of workers who needs a greater boldness, like that evi- on Labor Endangers do the same type of work (or are in the denced by unemployed workers, stu- Civil Society same industry, sector, or craft) to take on dents and young people, those who suf- their employers. And we need to ensure fered home foreclosures, and others in that workers are in national unions with the diverse Occupy movement. the strength, resources, focus, and strate- At the onset, the media and many gy to help nonunion workers join togeth- politicians–conservative and liberal– er to improve pay, bene½ts, and working scoffed at Occupy for not serving up a conditions. This also means that unions ten-point program or outlining detailed will have to adopt new strategies of incor- legislative solutions to the problems it porating nonunion workers into their protested. But as time passed, the Occupy structures, and that they must constantly movement forced a broad and ongoing look to protect the rights of all workers national discussion about the central while simultaneously ½ghting for the issue of income inequality in America. rights of their own members. Unions did the right thing by supporting Because the economy today is global, Occupy while refraining from actions unions must speed the building of a global that would have infringed on its inde- labor movement. Transnational corpora- pendence. tions move country to country, without In the face of harsh police repression, national loyalties, to ½nd and exploit the Occupy receded from public focus in cheapest labor. Today’s global corpora- 2012, but Occupy still serves to remind tions have no permanent home, recog- labor of the importance of direct action nize no national borders, salute no flag and confrontation, which can yield more but their own corporate logo, and move results than speeches by union leaders at their money to anywhere they can make the National Press Club. This is particu- the most and pay the least. larly so in an era when strikes by unions Global ½rms have won trade agree- happen infrequently given the huge bal- ments that make it easier to move pro- ance of power currently possessed by duction, while providing no rights to employers. help workers improve pay, working conditions, and job security. The result of Workers going forward need to devel- globalization is that workers in any one op even more effective political action country cannot set and maintain high efforts; this is crucial to labor’s role as a labor standards without uniting to raise steward of the common good. With the standards everywhere. If American man- U.S. Supreme Court’s decision in Citizens ufacturing is to recover, unions need to United to allow unlimited political spend- work to level the global playing ½eld so ing by corporations, the challenge to that corporations are made to decide unions today is severe. While unions also where to locate their production opera- are free to spend politically, everyone tions based on where the best labor force knows that corporations can far outspend is, rather than the cheapest. labor and other progressive forces. I also believe that unions need to learn With the intensity of the 2012 cam- from the success of the Occupy move- paign now behind us, one cannot help ment, which helped shift the public de- but remember the movement of hope bate dramatically a year ago. There are that occurred at the beginning of the moments in which direct action and dra- Obama administration four years ago. It

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came about in part because union mem- Underscoring its civic engagement Andy Stern bers did what the civic textbooks urge: role, the union had done extensive train- they participated in the electoral process. ing of members in their locals. Those seiu implemented a program a few skills had been honed in political races years ago called “Walk a Day in My from local school boards to state legisla- Shoes” that put politicians to the test. ture campaigns, House and Senate con- Candidates had to earn the union’s en- tests, and, of course, the presidency. dorsement in part by spending time at More than three thousand seiu mem- home and on the job with workers. So in bers and staff worked full-time in the August 2007, then-Senator Barack Obama 2008 Obama campaign, pounding the arrived before dawn at the home of Pauline pavement and talking with voters in Beck, an seiu home care worker in Oak- nineteen target states. More than one land, California.26 Together that day, hundred thousand seiu janitors, nurses, Beck and Obama helped John Thornton, home care and child care providers, and an 86-year-old former cement mason others volunteered to work after their with a broken hip and a prosthetic leg, get shifts and on weekends. out of bed, bathe, dress, eat breakfast, Data were not yet available for the 2012 and prepare for the day. Obama mopped elections at the time of this writing, but a floors, did some sweeping, and ran loads nationwide survey of seiu members of laundry. As seiu member Beck began commissioned by the union after the to outline more tasks for the future presi- 2008 election found that 77 percent voted dent, patient Thornton laughed and said, for Obama and 21 percent for McCain. Of “She’s working the hell out of him.” the nineteen states that seiu targeted, Other candidates, such as Joe Biden and Obama carried seventeen. seiu mem- Hillary Clinton, also got a taste of life as bers helped win eight of the eleven tar- an seiu member. Biden walked a day in geted Senate races and twenty-two of the shoes of school custodian Marshall twenty-nine targeted House races. seiu Clemons, and Clinton went through a workers knocked on 3,571,955 doors seek- shift with a registered nurse. John McCain ing support; made 16,539,038 political and the other gop candidates all declined phone calls during that election cycle; sent to participate. out 5,125,378 pieces of campaign mail; seiu members also challenged presi- registered more than 227,000 new voters dential candidates in 2008 to release a in battleground states and California; detailed health care reform plan. And the and helped 10,992 voters to cast early bal- union pressed them on immigration re- lots or vote absentee. form, jobs, and workplace fairness issues, Catalist, a data services ½rm, issued an among others. seiu initially let state analysis of the 2008 election using its councils go their own way, but after detailed database of all voting-age indi- Obama’s win in Iowa, there was strong viduals in the United States. The ½rm pro- rank-and-½le pressure to endorse the Illi- vided data services to a majority of the nois senator, which the union did in Feb- progressive political community that ruary. seiu members in their purple T- year, including seiu, so it had the ability shirts and jackets went out knocking on to compile an increasingly accurate pic- doors, passing out campaign literature, ture of the American electorate and the calling voters from union phone banks, forces influencing it. Catalist indepen- and using every modern campaign tool dently was able to break out data on the available. efforts of seiu members, ½nding that

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How the they turned out at higher rates than nomic greed fosters political apathy. Assault nonunion workers. Unions historically have helped counter on Labor Endangers Catalist also reported that 88 percent of that apathy, but Tocqueville’s fear of Civil Society seiu activities were done person-to-per- greed can be seen in the growth of inequal- son through live phone calls (64 percent) ity, as discussed above. or in-person interactions (24 percent). Legal scholar Lawrence Lessig and That was about 50 percent more than the Glenn Greenwald, a writer now at The average of all progressive organizations Guardian, have argued effectively that in 2008. seiu alone did more overall policy outcomes today often are indiffer- voter contact in Virginia (20 percent), ent to the will of the people and to demo- New Mexico (13 percent), and Colorado cratic debate.28 The power of money in (8.5 percent) than any force, including politics has enabled elites to shape out- the campaigns themselves and the party comes that are at odds with most voters. committees. In a discussion of Lessig’s book Republic, In Indiana, after subtracting the work Lost: How Money Corrupts Congress–and a of the Obama campaign, data showed that Plan to Stop It, he and Greenwald agreed more than 40 percent of all voter contact that the Occupy protests in late 2011 was done by seiu. Catalist reported that expanded rapidly and developed reso- seiu members knocked on 118,765 doors nance because people now understand in Indiana; made 186,145 phone calls to that voting no longer ½xes systemic prob- voters; and registered 14,003 Hoosier lems in our “money for influence” culture. voters. That huge outpouring of individ- Greenwald says that “the only recourse uals engaged in electoral participation for citizens becomes either passive had a big impact: Obama won the state acceptance of their powerlessness (i.e., by a margin of 25,000 votes. apathy and withdrawal) or disruption Other unions also performed at high and unrest fomented outside the elec- levels in 2008. And if we look more toral system.” More people today, includ- broadly at the rate of voter participation ing union members, fear that both politi- as one metric for civic engagement, it is cal parties are too subservient to corpora- clear that unions are an important ele- tions, which seem to own the political ment of increased turnout. Political sci- process, and that citizens, as Lessig argues, entist Benjamin Radcliff and Patricia have largely lost the ability to affect what Davis, of the U.S. Department of State, government does. studied nineteen industrial democracies When we look at the period following around the world and all ½fty U.S. states. the 2008 economic collapse, one might They found that aggregate rates of turnout have expected very tough legislation and are affected strongly by the strength of regulations on banks and Wall Street the labor movement: “The results indicate aimed at preventing a future reoccur- that the greater the share of workers rep- rence. Instead, even the very modest resented by unions, the greater is the Dodd-Frank reforms–far short of the turnout.”27 retooling of the ½nancial sector that is needed–continue to be resisted and De Tocqueville feared domination of watered down by members of Congress society by the state and saw the Ameri- whose campaigns are funded by the very cans he studied in the 1830s to be joiners institutions opposing regulation. of private associations that counterbal- We have thus entered an era that is very anced the state. He also argued that eco- threatening to civic engagement and

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democratic society. People who vote for numbers to provide some counterbal- Andy Stern “change they can believe in” understand- ance on both the political and economic ably become disillusioned by not seeing fronts; that is why labor has been target- that promise become reality. ed by state politicians in Wisconsin, America is a country divided. The pro- Ohio, and Michigan, and by gop presi- cess has broken down. The danger is we dential and congressional candidates no longer seem capable of transcending nationally. Those who believe in strong our divisions to accomplish anything. civic engagement as a foundation for a Our checks and balances allow a minor- vigorous democracy need to speak out ity–usually a small minority–to block against the wave of anti-labor legislation the will of the majority on issue after and action around the country. And they issue. Debt ceiling approval and disaster need to support new steps to strengthen aid end up being levers for political workers’ abilities to exercise their endan- hostage-taking by Republicans in this gered right to join unions and participate new era. fully in our system as a counterbalance to The Citizens United decision by an the growing inequality, both political and extremist and activist conservative Su- economic. preme Court will only worsen the huge There are millions of workers out there and corrosive impact of money–mainly like Lucia, the immigrant janitor in Los corporate and right-wing money–that Angeles ½ghting for a better life for her now further floods our public debate. children with the skills she gained through The current voter suppression agenda the union–the same union that also gives further cause for concern, as Repub- helped her to win decent wages and a bet- licans and their corporate/right allies ter life for her family. Lucia’s future, as push to deny voting rights through new well as America’s, will be bright indeed if restrictions (allegedly intended to pre- the current assault on labor can be rebuffed vent fraud that most observers agree is and unions can expand their role as stew- minimal). ards for the public good–and as defend- Unions are the only segment of civil ers of efforts by the 99 percent to reduce society with the resources and grassroots inequality and protect democracy.

endnotes 1 seiu Local 1877 is part of seiu United Service Workers West, which represents more than forty thousand janitors, security of½cers, airport service workers, and other property service workers in California. 2 Veronica Terriquez, “Schools for Democracy: Labor Union Participation and Latino Immi- grant Parents’ School-Based Civic Engagement,” American Sociological Review 76 (4) (August 2011). The quotes from Lucia in the preceding paragraphs are taken from Terriquez’s article. 3 Don Stillman, Stronger Together: The Story of SEIU (White River Junction, Vt.: Chelsea Green Publishing, 2010). 4 Bureau of Labor Statistics, “Union Membership (Annual),” press release, January 21, 2011. 5 Ibid. 6 Ibid.

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How the 7 David Madland and Nick Bunker, “As Unions Weaken So Does the Middle Class: New Census Assault Data Shows the Importance of Unions to the Middle Class,” Center for American Progress on Labor Action Fund, September 23, 2011, http://www.americanprogressaction.org/issues/2011/ Endangers Civil Society 09/madland_unions.html. 8 Bruce Western and Jake Rosenfeld, “Unions, Norms, and the Rise in U.S. Wage Inequality,” American Sociological Review 76 (4) (August 2011). 9 The study is cited in Thomas Geoghegan, Were You Born on the Wrong Continent? How the Euro- pean Model Can Help You Get a Life (New York: New Press, 2010), 187. 10 Philip M. Dine, State of the Unions: How Labor Can Strengthen the Middle Class, Improve Our Economy, and Regain Political Influence (New York: McGraw-Hill, 2008). Dine, whose work I draw on here, was the highly respected labor reporter at the St. Louis Post-Dispatch for many years and now works for the National Association of Letter Carriers. 11 Ibid., 140–141. 12 Ibid., 138. 13 Ibid., 137. 14 Ibid., 139–140. 15 See John Logan, of San Francisco State University, writing in The Hill, http://thehill.com/ blogs/congress-blog/presidential-campaign/185651-romney-puts-anti-union-politics-front -and-center. 16 The nlrb-Boeing issue may have helped Romney in South Carolina, a state not in play in 2012. Romney’s broader attack on labor did not help him in key swing states, such as Ohio and Michigan. 17 Harold Meyerson, “The gop’s War on Labor Unions,” The Washington Post, December 1, 2011. 18 John Kretzschmar, “A Little History of Unions and Civic Engagement,” William Brennan Institute for Labor Studies, University of Nebraska at Omaha. 19 Ibid. 20Philip Dray, There is Power in a Union: The Epic Story of Labor in America (New York: Doubleday, 2010), 497. Dray’s history of the American labor movement is a good source for those interested in how unions evolved. 21 Evan McMorris-Santoro, “Santorum: Labor Unions Are Force For Good . . . If You’re Iranian,” Talking Points Memo, November 19, 2011. 22 A discussion of the union reforms that I and others proposed to the afl-cio during the last decade can be found in Stillman, Stronger Together. 23 Michael Alison Chandler, “Rede½ning Unionism: Montgomery Teachers’ Path Values Part- nership, not Confrontation,” The Washington Post, March 10, 2012. 24 Andy Stern and Eli Broad, “Teachers Deserve This ‘Thank You,’” The Huf½ngton Post, Novem- ber 15, 2012. 25 For more detail, see Stronger Together, from which these recommendations, as well as the following discussion of streamlining, are drawn. 26 See Stillman, Stronger Together, chap. 27, from which this discussion of seiu’s role in the 2008 election is drawn, along with internal seiu reports. 27 Benjamin Radcliff and Patricia Davis, “Labor Organization and Electoral Participation in Industrial Democracies,” American Journal of Political Science 44 (1) (January 2000): 132–141. 28 See Glenn Greenwald’s discussion with Lawrence Lessig on the blog FireDogLake’s Book Salon, http://fdlbooksalon.com/2011/10/08/fdl-book-salon-welcomes-lawrence-lessig -republic-lost-a-declaration-for-independence/.

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Philanthropy, the Nonpro½t Sector & the Democratic Dilemma

Peter Dobkin Hall

Abstract: The central dilemma of American democracy is the tension between “voice” and “equality”: between the Constitution’s unconditional guarantees of citizens’ expressive, associational, and property rights and the legal and political equality that is the foundation of majoritarian decision-making. Phi- lanthropy and nonpro½t organizations–which enable citizens to give money and time to support causes in which they believe–have posed this dilemma with unusual force, allowing moneyed minorities to oppose and sometimes overwhelm the popular will. In the past, these assertions of private power have inevitably aroused popular opposition producing legislative and regulatory outcomes that have maintained a balance between voice and equality. Today, with unprecedented accumulations of wealth and legal changes permitting the unrestricted use of wealth in politics, the unchallenged exercise of private power through philanthropy and the nonpro½t sector poses grave threats to the democratic process.

The components of the nonpro½t sector–philanthropy, voluntary associations, charity, and nonpro½t organizations–are often regarded as quin- tessentially civic institutions: avatars of the common good that stand above self-interest and eschew partisanship. PETER DOBKIN HALL is Profes- But despite their proclaimed high purposes, at no sor of History and Theory at the time in American history–not even now, when School of Public Affairs, City Uni- private wealth and its creators are so effusively cel- versity of New York. He is also ebrated–have these nonpro½t institutions been Senior Research Fellow at the unshadowed by public skepticism and distrust. Hauser Center for Nonpro½t Orga - nizations at Harvard University. Inevitably, private initiatives in the public interest, His publications include Lives in whether promoted by wealthy individuals or by Trust: The Fortunes of Dynastic Fam- groups of citizens in support of causes that do not ilies in Late Twentieth-Century Amer- command majority support, are–and always have ica (with George E. Marcus, 1992), been–problematic among a people with a founda- Inventing the Nonpro½t Sector and tional commitment to democratic governance and Other Essays on Philanthropy, Volun- principles of equality. tarism, and Nonpro½t Organizations (1992), and The Organization of Tensions between political and legal equality American Culture, 1700–1900: Pri- (with its corollary, majority rule) and the voice pro- vate Institutions, Elites, and the Ori- vided citizens by the Constitution’s First Amend- gins of American Nationality (1982). ment–which guaranteed our expressive (freedom

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Philan - of speech, worship, and the press), asso- as indispensable to democratic politics thropy, the ciational (assembly and petition), and and market capitalism. Standing alone Nonpro½t Sector & the property rights (including giving and vol- among an unconditionally equal citizenry, Democratic unteering)–have been both endemic and as De Tocqueville noted, an individual Dilemma persistent since colonial days. was powerless.2 Only by combining with In its purest form, eighteenth-century others could individuals influence gov- democratic theory envisioned the state as ernment and, failing that, join together to the instrumentality through which citi- do what government could or would not zens exercised their rights. It frowned on do. It was not long before groups like the private associations and activities that conservative Society of the Cincinnati, weakened or challenged elected govern- representing the views of the “wealthy, ments. Not only were political parties learned, and respectable,” and the radical and factions regarded with suspicion, any democratic societies, which assembled and all kinds of private associations were more humble citizens, matured into viewed as instruments for advancing pri- political parties–the Federalists and the vate interests at the expense of the people, Democratic Republicans–which have, in the common good, and the state. one form or another, dominated Ameri- James Madison’s famous Federalist can politics ever since. No. 10 (1787) addressed the hazards that Because it can be wielded only periodi- “factions,” as associations representing cally, the vote is, at best, a blunt instru- special interests, posed to democratic ment for influencing government.3 There government. George Washington himself are other more effective ways of influenc- warned in his 1796 Farewell Address ing the state–demonstrating, lobbying, against “all combinations and Associa- letter-writing, editorializing, participa- tions, under whatever plausible character, tion in public meetings, litigation, politi- with the real design to direct, controul, cal contributions, and organizing–that counteract, or awe the regular delibera- can empower vocal minorities not only to tion and action of the Constituted au - influence the actions of political bodies, thorities.” These, he asserted, “serve to candidates, and of½ceholders, but also to organize faction, to give it an arti½cial shape opinion and mobilize the public. and extraordinary force; to put in the But explicit political action is not the place of the delegated will of the Nation, only means of shaping and influencing the will of a party; often a small but artful public policy. Even before the Revolution and enterprising minority of the Com- and the rati½cation of the federal Consti- munity.” They are likely, he declared, “in tution, Americans had begun to learn the course of time and things, to become that crafting fellow citizens’ values and potent engines, by which cunning, ambi- beliefs could have powerful political con- tious and unprincipled men will be sequences.4 As early as the mid-eigh- enabled to subvert the Power of the Peo- teenth century, churches, schools, and ple, and to usurp for themselves the reins colleges were all being used to promote of Government; destroying afterwards ideas and practices that often ran counter the very engines which have lifted them both to ecclesiastical and political estab- to unjust domination.”1 lishments and to popular opinion. The rati½cation of the Constitution Practical necessity compelled Americans effectively nationalized politics and to accept–and ultimately to embrace– empowered a new mass of citizens. As a philanthropy and voluntary associations result, the cultural, economic, and social

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leaders who once could count on defer- shed of intellect” and attracted to the city Peter ence to maintain their influence found the “promising young author and rising Dobkin Hall themselves increasingly excluded from lawyer and large capitalist”–and “the power. In the early nineteenth century, prettiest girl.” In doing so, Harvard made these disempowered elites increasingly Boston one of the nation’s chief produc- turned to philanthropy and voluntary ers of human and intellectual capital.7 associations to promote views and causes Although Boston’s growing wealth that could neither muster popular support produced a virtual tidal wave of philan- nor enlist the resources of government.5 thropic giving by the mid-nineteenth This is not to suggest that the agendas century, such generosity could not dispel of these disenfranchised elites were nec- public suspicion of donors’ motives. Giv- essarily malign. In the antebellum peri- ing an overview of Boston’s charities in od, when few states were willing to tax 1845, Harvard Treasurer Samuel Atkins their citizens to support education, the Eliot complained that willingness of committed citizens of persons who are farmers or mechanics in means to establish private academies and this country often use a language and support private higher education was no exhibit a tone of feeling which are incon- doubt admirable and, more often than sistent with the state of things here, and not, produced cohorts of educated citi- are applicable only to what is found in zens essential to the new republic. At the Europe. They talk of oppression of the same time, the plurality of religious and rich; when there is not a rich man in Amer- political views that flourished ensured ica that can, and perhaps not one that that these private cultural enterprises wishes, to oppress them. produced a widening variety of perspectives and skills. “Riches alone do not enable a man to be Still, the ½elds in which eleemosynary much of an oppressor anywhere,” Eliot corporations were becoming most active– continued, higher education, health care, religion, and in this country the rich man can cut no and social welfare–were likely to be led ½gure at all in that line. There must be posi- by the institutions that commanded the tion and privilege superadded to wealth to greatest material support. In higher edu- make it possible to oppress, and in New cation, Harvard, which could elicit the England neither that position nor that generosity of Boston’s increasingly wealthy privilege can be attained by any body. So elite, and Yale, which drew on smaller but far is the rich man from having attained more numerous contributions from the them, that he is, in truth, farther from nation’s evangelical Protestant network, them than other persons. He is jealously emerged as America’s leading colleges by watched, constantly suspected.8 the middle of the nineteenth century.6 While Harvard and Yale attracted their While suspicion of the “voluntary sys- share of striving young men of humble tem” was unable to prevent the emer- origins, they also increasingly served the gence of powerful private institutions in elites whose generosity enriched them– New England, it was far more effective by educating their sons and sending them elsewhere in the country.9 Both New off into careers as corporate executives York and Pennsylvania annulled British and leaders of the learned professions. charities laws that had been retained in Harvard helped Boston, as Oliver Wen- Massachusetts and Connecticut, substi- dell Holmes put it, “drain a large water- tuting their own indigenous legal codes.

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Philan - In 1784, New York created an oversight “to the United States of America, to thropy, the body, the Regents of the University of the found at Washington, under the name of Nonpro½t Sector & the State of New York, which exercised the Smithsonian Institution, an estab- Democratic broad authority over all charitable, edu- lishment for the increase and diffusion of Dilemma cational, and religious institutions. In the knowledge among men.”11 1820s, New York’s legislature passed laws President Andrew Jackson–as a South- that gave the state authority to regulate erner with a deep-seated hostility to pri- the size of institutional endowments and vate philanthropy–curtly noti½ed Con- to limit the proportion of estates that gress of the bequest, noting that the could be bequeathed for charitable pur- Executive had no authority to take any poses. Pennsylvania not only delayed giv- steps for accepting the trust nor for ing its courts equity jurisdiction (and obtaining the funds, and that it was Con- with it the power to enforce charitable gress’ responsibility to take such mea- and other trusts) until the 1870s, it also sures as it deemed necessary.12 When the embraced highly restrictive criteria–the Senate moved to approve the Judiciary purely public charities standard–for Committee’s report that con½rmed the what quali½ed legally as a charity. Phil- Smithson trust, an acrimonious debate adelphia may have been the “city of broke out. Senator William C. Preston of brotherly love,” but its solicitude did not South Carolina led off the opposition, extend to organized charities. And despite mixing traditional Jeffersonian opposi- their wealth, until the last decades of the tion to private endowments with aggres- nineteenth century, both New York and sive nationalism. On the one hand, Preston Pennsylvania lagged far behind New questioned both the propriety of the gov- England in charitable giving and in the ernment’s accepting the legacy and wheth- establishment of eleemosynary corpora- er its powers extended to executing the tions. purposes of the trust; on the other, he In the South, hostility toward private argued that if the bequest were to be giving and voluntary associations was accepted, it should be applied to national even more overt. Some states forbade the purposes, not merely to the bene½t of the establishment of charitable corpora- citizens of the District of Columbia. tions. Others permitted them, but with Denying that the government had the charters that limited their life spans and authority to receive and administer such mandated the presence of public of½cials a trust, Preston declared that the “dona- on their governing boards. An 1832 Vir- tion had been partly made with a view to ginia Supreme Court decision regarding immortalize the donor, and that it was the property holdings of charities cap- too cheap a way of conferring immortality tured Southern attitudes toward private . . . and he had no idea of this District philanthropy, warning of “the whole being used as a fulcrum to raise foreigners property of society” being “swallowed up to immortality by getting Congress as the in the insatiable gulph of public chari- parens patriæ of the District of Columbia ties.”10 to accept donations from them.”13 This hostility toward private charity Beyond questioning the legality of the also manifested on the federal level. In nation’s receiving the bequest, the con- 1835, the U.S. government was informed gressmen began to ½ght among them- that James Smithson, a wealthy British selves about what sort of institution could amateur scientist, left the bulk of his sub- best increase and diffuse knowledge. stantial estate–a half-million dollars– Each congressman had his pet scheme,

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ranging from a national university and a despotism. Public opinion may be so com- Peter public lecture series through experimen- bined, and inflamed, and brought to bear Dobkin Hall tal farms and factories. It took until 1839 on odious individuals or opinions, that it for the Senate to resolve to create a public will be as perilous to think and speak with corporation, the Smithsonian Institu- manly freedom, as if an Inquisition were tion, which, at its outset, would establish open before us. It is now discovered that and operate an astronomical observatory the way to rule in this country, is by an and sponsor public lectures on natural, array of numbers, which a prudent man moral, and political sciences. will not like to face. Of consequence, all Congress continued to debate how best Associations aiming or tending to establish to realize Smithson’s vision when ½nally, sway by numbers, ought to be opposed. in 1846, it was revealed that the Smithson They create tyrants as effectually as stand- bequest had been invested in bonds ing armies. Let them be withstood from issued by the states of Arkansas, Illinois, the beginning. and Michigan–all of which had defaulted “They are perilous instruments,” he cau- on their obligations, wiping out the fund. tioned. After weeks of wrangling, much of it still about the legality of the government’s They ought to be suspected. They are a accepting the bequest, a phalanx of rep- kind of irregular government created within resentatives, led by former President our Constitutional government. Let them John Quincy Adams, voted to restore the be watched closely. As soon as we ½nd Smithsonian fund and to entrust it to a them resolved or even disposed to bear corporation whose trustees (the Regents) down on a respectable man or set of men, would be elected and appointed federal or to force on the community measures of½cials serving ex of½cio. All told, it took about which wise and good men differ, let more than a decade to overcome opposi- us feel that a dangerous engine is at work tion to what would eventually become a among us, and oppose to it our steady and great national institution. stern disapprobation.14 Northern intellectuals expressed a par- Channing was not alone in his appre- allel suspicion of private philanthropic hensions. In 1838, Brown University Pres- and associational initiatives. In an 1829 ident Francis Wayland, a political econo- essay in the Christian Examiner, a leading mist and the nation’s leading Baptist New England journal of opinion, William intellectual, wrote a passionate denunci- Ellery Channing, the “pope” of Boston ation of associations, published under Unitarianism, warned against the power the title The Limitations of Human Respon- of voluntary associations: “Let Associa- sibility. tions devoted to any objects which excite Wayland ½rst outlined the moral haz- the passions, be everywhere spread and ards that associations pose by encourag- leagued together for mutual support, and ing citizens to sacri½ce their own con- nothing is easier than to establish a control science to that of the group. “When men over newspaper.” Channing continued: are thus associated,” he wrote, We are persuaded that by an artful multi- it is well known that their feeling of moral plication of societies, devoted apparently responsibility is vastly less acute than to different objects, but all swayed by the when they act as individuals. Associations same leaders, and all intended to bear will perpetrate acts, at which every mem- against a hated party, as cruel a persecution ber of the association would individually may be carried on in a free country as in a

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Philan - revolt. Hence, the common proverb that protect and empower the individual. thropy, the “corporate bodies have no consciences.” “Responsibility, instead of being thrown Nonpro½t Sector & the The leaders throw the responsibility upon upon masses,” he concluded, Democratic the members, and the members throw it would be thrown more distinctly upon Dilemma back again upon the leaders, and between individuals. Every man, instead of inquir- the two, we ½nd that although the thing ing for the decision of the majority, would has been done, yet who is to be blamed for be obliged to decide for himself. Instead of it, it is by no means easy to ascertain.15 following thoughtlessly the movement of “What were the French Jacobin clubs but public opinion, every man would learn to voluntary associations?” Wayland asked, act from the promptings of individual con- connecting seemingly innocuous volun- science and duty. Public opinion would tary associations to the emergence of thus be formed by the deliberate reflection of tyranny. every individual acting in the fear of God, instead of being formed by the clamor of At ½rst, they were mere societies for the men who “make a trade of philanthropy.”17 harmless purpose of discussing theoretical questions of civil politics. Soon they were espite restrictive charities laws in most changed into associations, for the purpose D states outside of New England, private of carrying into practice those truths which philanthropy and voluntary associations they supposed themselves to have demon- continued to grow and spread through- strated. They were next multiplied, by the out the United States. Just as the Civil establishment of af½liated branches in every War stimulated the growth of enormous town of France, (each one, however, gov- corporate business enterprises as compo- erned and directed by the central associa- nents of an emergent national economy, tion in Paris,) until they were able to con- so it also fueled the burgeoning of associ- trol the public sentiment of the nation. They ational and philanthropic activities.18 then boldly assumed the government of the A key element in the Union cause was empire. The throne and the legislative as - the U.S. Sanitary Commission, a federally semblies were prostrate at their feet. The chartered but privately funded relief right of franchise, that palladium of liberty, agency that took charge of the medical was valueless; for elect whom you would to and public health tasks associated with be a legislator, he dared not disobey the the war effort. After the war, a host of vol- mandate of the club. Legislative proceed- untary organizations played key roles in ings were regularly decided upon, in the the reconstruction of the South, building meetings of these voluntary associations, churches, schools, and social welfare before they were brought forward in the agencies to help millions of emancipated assembly; and the representatives of the slaves adjust to their freedom. These ini- people did nothing but record the mandates tiatives excited as much hostility as admi- of a sanguinary mob. Thus was a tyranny ration. Called “Gideonites” (after the Old enacted, to which the history of the world Testament hero) by their admirers, these affords no parallel; and all this was done by reformers were known as “carpetbag- men, who, at ½rst, were associated to dis- gers” by their detractors. As the failure of cuss abstract principles of right, and who Reconstruction and the disenfranchise- were merely pledged to carry into effect ment of African Americans in the decades some truly salutary measures of reform.16 following the war suggests, the currents Severely limiting the powers of associ- of racism ran deep on both sides of the ations, in Wayland’s view, would only

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Mason-Dixon line and doubtless shaped purposed grant-making entities like the Peter the attitudes of many Americans. None - Carnegie Corporation.22 Dobkin Hall theless, Reconstruction had a major impact As a devout Christian, John D. Rocke- on philanthropy, encouraging a number feller tried conscientiously to tithe his of wealthy Americans–among them, earnings, reading and responding to international banker George Peabody– thousands of “begging letters” from indi- to establish the forerunners of modern viduals and organizations. “Your fortune grant-making foundations to support is rolling up, rolling up like an ava- educational activities in the South.19 lanche,” Frederick Gates, Rockefeller’s The increasingly national character of philanthropic advisor, is said to have economic, social, and cultural life helped shouted one day early in the century. foster other ambitious associational and “You must keep up with it! You must dis- philanthropic initiatives. In the decades tribute it faster than it grows! If you do following the war, virtually every major not, it will crush you and your children profession came to be organized as a and your children’s children.”23 Like national association. Millions of Ameri- Carnegie, Rockefeller’s philanthropy cans joined fraternal, sororal, veterans, moved from giving that targeted speci½c patriotic, and advocacy organizations.20 problems toward ever more open-ended As institutions like Harvard and Yale objectives: the mission of his $100 mil- aspired to become national universities, lion Rockefeller Foundation, established they began to tap the generosity of the in 1913, was simply the “bene½t of enormous fortunes accumulated during mankind.” and after the war, fundraising not only The effort to establish the Rockefeller locally, but also regionally and nationally. Foundation ignited a ½restorm of criti- The scale of the fortunes of the post– cism. Already regarded as “the most Civil War “robber barons” challenged hated man in America” because of mo - their creators to devise entirely new nopolistic business practices and bloody forms of philanthropy–and in doing so suppression of labor unions, Rocke- rekindled public skepticism about the feller’s grand philanthropic gesture was motives of the extremely rich. In his 1889 widely perceived as a transparent attempt essay, “Wealth” (better known as “The to buy public favor. Most disturbing to Gospel of Wealth”), Andrew Carnegie the Foundation’s critics was not only its harshly criticized the passing of large for- extraordinary size, but also the generality tunes to descendants and urged his fel- of its mandate: low millionaires to use their surplus To promote the well-being and to advance wealth “to place within the reach of the the civilization of the peoples of the United community ladders upon which the States and its Territories and possessions aspiring can rise.”21 The progress of the and of foreign lands in the acquisition and human race, Carnegie argued, required dissemination of knowledge; in the pre- that millionaires use the same “genius for vention and relief of suffering; and in the affairs” that had enabled them to earn promotion of any and all of the elements of great fortunes in redistributing their human progress.24 wealth. Over the course of the next three decades, Carnegie launched increasingly According to Rockefeller’s spokesman, bold philanthropic initiatives, beginning his experience with his earlier philan- with fairly conventional charities like the thropies had led him to push the principle Hero’s Fund and concluding with broadly of an “elastic charter,” which would give

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Philan - the Foundation a “freedom of scope” presidents of Harvard, Yale, Columbia, thropy, the that would “not be limited in any way”: Johns Hopkins, and the University of Nonpro½t Sector & the “wherever arises a human need this Chicago. Among the amendments to the Democratic board may be in position to meet it, if motives of the Foundation was one “to Dilemma that shall seem wise.”25 make this muni½cent gift directly to the “Of course no amount of charities in whole American people, and forever sub- spending such fortunes can compensate ject to the control of their elected repre- in any way for the misconduct in acquir- sentatives.”27 Rockefeller representatives ing them,” remarked former President agreed to all the amendments, but in the Theodore Roosevelt. President William end, even these concessions were insuf - Taft opposed the Foundation, calling it a ½cient to overcome congressional oppo- “bill to incorporate Mr. Rockefeller.” sition to the Foundation’s proposal. It was American Federation of Labor President eventually submitted to the more pliant Samuel Gompers growled, “The one New York State legislature, which ap- thing that the world would gratefully proved it without any of the congressional accept from Mr. Rockefeller now would reservations. be the establishment of a great endow- The resistance to large-scale philan- ment of research and education to help thropy was not based solely on hostility other people see in time how they can toward the rich. Rather, it rested on deep keep from being like him.”26 historical foundations, particularly the If Rockefeller expected that Congress long legacy of legal efforts to restrict would grant the Foundation complete private giving. The front line of this bat- freedom to select the causes it would sup- tle was New York, which had become the port, to co-opt as trustees whomever it nation’s economic center after the Civil wished, and to increase its endowment War and, in consequence, home to the without limit, he was disappointed. After country’s wealthiest men–including nearly three years of debate, Congress Carnegie and Rockefeller. As noted, the proposed major limitations on the Foun- state’s efforts to limit private philanthropy dation’s charter. It passed a series of dated back to the eighteenth century and amendments that allowed Congress to were renewed periodically by legislative “impose such limitations upon the objects enactments and court decisions. These of the corporation as the public interests legal obstacles began to capture public should demand, and that all gifts or prop- attention in the 1880s, as the wealthy erty received by the corporation should attempted to make large charitable gifts be held subject to this provision.” One and bequests. The ½rst of these collisions amendment “speci½cally limited” the between wealth and the law occurred in total amount of property to $100 million 1886, when the impecunious nephews of and forbade the Foundation from accu- corporate lawyer and former presidential mulating additional property. Another candidate Samuel Tilden challenged his amendment gave Congress the power to will, which had left the multimillion dol- require the dissolution of the Foundation lar remainder of his estate to his trustees, after a century. Another made appoint- with a recommendation that it be used ments to its board subject to review by a “for such charitable, educational, and committee consisting of the President of scienti½c purposes” as they might deem the United States, the Chief Justice of the “bene½cial to the interests of man - Supreme Court, the President of the Sen- kind.”28 Given Tilden’s influence as a ate, the Speaker of the House, and the Democratic political leader and the

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prominence of his trustees, it seemed could not legally receive a gift that Peter unlikely that the challenge would be increased its endowment beyond the Dobkin Hall taken seriously. However, Governor David amount authorized by the state’s legisla- Hill, one of Tilden’s political rivals, had ture. (Like the Tilden case, Fisk v. Cornell stacked the court that would consider the had been brought by a covetous relative case–and Hill harbored a deep hostility of the testator–in this instance her wid- toward private charity. The will was, in ower–who also happened to be the uni- due course, declared invalid on a number versity’s librarian!) of grounds including “vagueness” (the Ames and others concerned about the failure to specify a particular charitable future of American philanthropy, as well purpose), improper delegation of powers as the fate of American society should to Tilden’s trustees, and violation of a such barriers continue to obstruct the law forbidding gifts and bequests to char- flow of benevolence, launched a stealth ities not yet in being. campaign of legal reform intended to The decision in favor of Tilden’s recraft charities laws in the major indus- “laughing heirs” provoked dismay among trial states akin to New England’s charity- the friends of private philanthropy–as friendly regime. In 1893, New York adopted well as among those who worried that the Tilden Act, which began with this limiting the ability of the rich to leave ringing af½rmation of the legality of money to charity would further isolate broad-purpose, open-ended bequests the already alarming concentration of like Tilden’s: wealth. “Melancholy the spectacle must No gift, grant, bequest or devise to reli- always be,” intoned Harvard Law profes- gious, educational, charitable, or benevo- sor James Barr Ames, lent uses, which shall, in other respects be when covetous relatives seek to convert to valid under the laws of this state, shall be their own use the fortune which a testator deemed invalid by reason of the inde½nite- has plainly devoted to a great public bene- ness or uncertainty or the persons desig- faction. But society is powerless, in a given nated as the bene½ciaries thereunder in the case, so long as the forms of law are instrument creating the same.30 observed. When, however, charitable be - By the turn of the century, similar quests have been repeatedly defeated, statutes had been passed in Pennsylvania, under cover of law, and that, too, although Illinois, and Ohio, in effect “Bostoniz- the bene½cent purpose of the testator was ing” charities law in those states and, unmistakably expressed in a will executed more important, permitting the kind of with all due formalities, and although the open-ended giving that made possible trustees were ready and anxious to per- the modern charitable foundation. form the trust reposed on them, one cannot help wondering if there is not some- he establishment of the Rockefeller thing wrong in a system of law which per- T Foundation sparked the ½rst congres- mits this deplorable disappointment of the sional investigation of the big philan- testator’s will and the consequent loss to thropy that was emerging from the great the community.29 Gilded Age fortunes. Congress worried The ruling against the Tilden Trust was that these vast accumulations of wealth, followed in 1887 by the decision to invali- devoted to shaping public institutions date a million-dollar bequest to Cornell and public opinion, would be the mecha- University on grounds that the university nisms through which the wealthy could

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Philan - exert control beyond the economy. The are socially desirable, please outline,” thropy, the Senate Commission on Industrial Rela- Chairman Walsh asked, “the course of Nonpro½t Sector & the tions (generally known as the Walsh action or character of legislation which Democratic Commission, after its chair, Senator you would consider desirable?” Dilemma Frank Walsh) was impaneled at the peak “Insofar as these foundations would of violent conflict between big corpora- devote their activities to the sciences, tions and organized labor.31 The com- medical, surgical; to the laboratory, to mission had a broad agenda, including the contributions toward history; for the the handling of major labor disputes and arts, the sciences, they would be helpful,” the Rockefeller’s influence on the poli- Gompers replied. cies and personnel of the New York But the effort to undertake to be an all-per- Bureau of Municipal Research. But be - vading machinery for the molding of the cause the debate over the establishment minds of the people for their relations of the Rockefeller Foundation came in the between each other in the constant indus- wake of the extraordinarily violent open trial struggle for human betterment–in so warfare in the Rockefeller-controlled far they should be prohibited from exercis- Colorado coal ½elds, a signi½cant part of ing their functions either by law or by reg- the investigation focused on the Founda- ulation.. . . I think one of the worst features, tion and its own proposed investigation one of the most dangerous features of of industrial relations. these foundations is where they undertake The testimony of American Federation to mold the opinion and judgment of the of Labor President Samuel Gompers people. I do not think that the Government offered a view of what many Americans of our country or that the people of our thought of the social desirability of foun- country are ready to surrender the func- dations controlled by the corporate inter- tion of teaching to a private institution ests investigating labor conditions. “I such as the Rockefeller Foundation with believe,” Gompers stated, the history behind that foundation–the that such foundations as the Rockefeller means by which their moneys were ½rst Foundation cannot impartially investigate made and later accumulated.34 a problem in the ½eld of industry. The But the resistance of Congress to char- whole basic principle upon which that tering foundations did not prevent the foundation is instituted–the guiding spirit states from doing so. In the years imme- behind it all precludes the possibility of diately preceding and following World impartial investigation as to the relations War I, major foundations established between employers and employees.32 themselves and steadily expanded their “As to the desirability of such founda- influence despite episodic public opposi- tions as the Russell Sage and Carnegie,” tion. Their greatest impact was on higher Gompers continued, education, where foundation-supported research and reforms in graduate and that may be open to question but there is professional education helped produce no dissention among thoughtful and liberty- enthusiastic cadres of experts who moved loving persons as to the position, the ob - easily between the worlds of academic ject, and the scope and spirit of the Rocke- teaching and research and of public policy. feller Foundation.33 Despite political differences between the “Granting you do not consider that the pro-business Hoover administration and activities of the foundations named above Franklin Roosevelt’s New Deal, both de-

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pended on the university-based expertise It took the Foundation several years to Peter nurtured by the foundations. It was only de½ne its purposes, but they generally Dobkin Hall natural, for example, that Roosevelt turned followed a liberal and internationalist to the operating foundation, the Brook- bent, much to the annoyance of congres- ings Institution, to plan Social Security sional conservatives, who were already and that the Hoover Institution became vexed about the profound influence that one of the nation’s early and leading con- earlier foundations–particularly those servative think tanks. By the end of associated with the Rockefellers–had World War II, foundations were involved demonstrated during the New Deal. The in virtually every aspect of American life tax aspects of the Ford Foundation did on both the national and local levels. not provoke a congressional inquiry, World War II, with its high taxes on since the Internal Revenue Code was in individual and corporate incomes and the midst of a long-term revisal that excess pro½ts, produced a second mas- would take nearly a decade to complete. sive wave of foundation formation–and, But because conservative outrage over perhaps not surprisingly, revived the Pro- the liberal biases of philanthropy coin- gressive Era suspicions of private philan- cided with the emergence of Senator thropy. Resentment of the ways in which Joseph McCarthy as a public ½gure, the philanthropy was being used as a mecha- politics of the foundations became a mat- nism of tax avoidance certainly con- ter of investigatory interest.36 tributed to its negative public image. An - The Cox Committee (1952–1953) and other key factor, as the political right the Reece Committee (1953–1954), im- began to regroup its forces in the postwar paneled in the House “to investigate tax- years, was the ways in which foundations exempt foundations and comparable had become part of the liberal machinery organizations,” launched protracted and of government. widely publicized inquiries into the The Ford Foundation exempli½ed both motives for establishing foundations and of these characteristics of philanthropy.35 their influence on public life. Areas of Because the Ford Motor Company was committee interest included the use of privately held, the death of its aged foundations as mechanisms of tax avoid- founder, Henry Ford, was likely to carry ance and corporate control, their influ- tax liabilities that would exceed the fami- ence on the social sciences, their capacity ly’s ability to continue to control the to influence public opinion and policy company. Accordingly, the Ford’s estate through their patronage of academic plan proposed the company’s reorganiza- research, their influence on the press and tion as a joint-stock company based on broadcasting, and their role in promoting two classes of securities, one of which internationalist foreign policy and sup- (retained by the family) would carry vot- porting subversive activities and institu- ing rights, while the other would be donat- tions. ed to a charitable foundation to produce While the committees determined that major tax savings for the family. When the foundations were not supporters of Henry Ford died in 1947, the estate plan Communism, they criticized their role in was enacted–creating the largest chari- empowering donors and administrators table foundation in the world and enabling who used their power to control research, the family to pass control of the company education, and the media to promote from one generation to another without internationalism and moral relativism, signi½cant tax liabilities. which they regarded as threats to demo-

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Philan - cratic governance.37 Because publication on Private Philanthropy and Public thropy, the of the ½ndings of the Reece Committee Needs (better known as the Filer Com- Nonpro½t Sector & the coincided with the censure of Senator mission, after its chair, Aetna Life Insur- Democratic McCarthy, its activities produced no leg- ance ceo John Filer).39 The blue ribbon Dilemma islative outcomes. Nonetheless, the world commission produced a set of recom- of philanthropy was put on notice that, as mendations and sponsored the ½rst con- its influence increased, it was likely to be certed research initiative on America’s the target of further attacks. Within charitable tax-exempt domain (which months, the largest foundations–led by came, as a result, to be known as the Ford, Rockefeller, Carnegie, and Sage– “nonpro½t sector”). The commission began organizing what would become a hoped to persuade Congress to shift over- decades-long defense of the public record sight of philanthropy and nonpro½ts of foundations, working through new from the Internal Revenue Service, a tax organizations like the Foundation Center collecting agency, to a new body, mod- Library, which worked to underwrite eled on the British Charity Commission. scholarly research that portrayed Ameri- But this effort died with the election of can philanthropy in a favorable light. Jimmy Carter to the presidency. Accord- The political activism of foundations ingly, the group refocused its efforts on like the Ford Foundation, which con- creating a national trade association to tributed to the civil rights movement and represent nonpro½ts–Independent Sec- other liberal initiatives of the era, set off a tor–and sponsoring continued university new wave of congressional inquiry in the and think tank research and advocacy for late 1960s, this time in connection with philanthropy and related activities. major tax reform legislation. Thanks to a relentless decade of hearings and reports The third great wave of foundation by conservative populist Democrat Wright establishment coincided with the it rev- Patman, and books on the power of the olution and the enormous new fortunes wealthy and privileged by academics to which it gave rise, as well as with the such as C. Wright Mills and journalists ideological revolution that discredited such as Ferdinand Lundberg, the House government and elevated the market as Ways and Means Committee and Senate the source of public good. Unlike its Finance Committee were primed to take predecessors, this period of growth did on the foundations and the abuses associ- not kindle public outrage or congressional ated with them.38 Their bitter and angry indignation, a shift chiefly due to the hearings led to the passage of the Tax conservatives’ rapid embrace of philan- Reform Act of 1969, the ½rst serious effort thropy in politics. to regulate philanthropy. The bill included For much of the twentieth century, limitations on excess business holdings, conservatives had been among the leading donor control, and political activity, as critics of philanthropy and nonpro½ts. well as payout requirements and taxes on But this changed after the crushing defeat the investments of private grant-making of Barry Goldwater in 1964, when conser- foundations. vative intellectuals such as Lewis Powell The legislation so alarmed philan- (later to serve on the U.S. Supreme thropic leaders like John D. Rockefeller III Court) and Irving Kristol began urging and John Gardner that they were moved the right to create the kind of institutional to create a national body to defend their infrastructure that had enabled the liberals philanthropic interests, the Commission to dominate public life for decades.40

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Within a decade, policy think tanks like bene½t” as de½ned by the Court. Over Peter the Heritage Foundation and the Ameri- 106,000 organizations ½led Section 501(c)(3) Dobkin Hall can Enterprise Institute and a host of new returns in 1981. . . . I ½nd it impossible to right-wing foundations became pillars of believe that all or even most of those the new Republican establishment, laying organizations could prove that they “de- the groundwork for the Reagan victory of monstrably serve and [are] in harmony 1980 and the conservative revolution that with the public interest,” or that they are followed. Once the darlings of the left, “bene½cial and stabilizing influences in foundations and other nonpro½ts quickly community life.”44 became ubiquitous across the political “Even more troubling,” he continued, spectrum as sources of policy and shapers of public opinion.41 is the element of conformity that appears Curiously, modes of activity that had to inform the Court’s analysis. The Court originated as “politics by other means” asserts that an exempt organization must for disenfranchised elites in the early “demonstrably serve and be in harmony nineteenth century had become instru- with the public interest,” must have a pur- mentalities of politics by the early twenty- pose that comports with “the common ½rst century. And the powers of founda- community conscience,” and must not act tions and nonpro½ts were enhanced by a in a manner “af½rmatively at odds with series of federal court decisions, begin- [the] declared position of the whole Gov- ning with Buckley v. Valeo in 1976, which ernment.” Taken together, these passages equated money with speech and began suggest that the primary function of a tax- the process of dismantling campaign exempt organization is to act on behalf of ½nance regulations, ½rst enacted in the the Government in carrying out govern- Progressive Era to limit the power of mentally approved policies. In my opinion, wealth in the democratic process.42 such a view . . . ignores the important role Supreme Court Justice Lewis Powell played by tax exemptions in encouraging played a key role in reshaping charities diverse, indeed often sharply conflicting, law in ways that would supply a powerful activities and viewpoints. As Justice Brennan rationale for the argument that money is has observed, private, nonpro½t groups speech. In Bob Jones University v. United receive tax exemptions because “each States, a 1983 Supreme Court case regarding group contributes to the diversity of asso- the government’s efforts to strip racially ciation, viewpoint, and enterprise essential segregated institutions of their tax ex - to a vigorous, pluralistic society.”. . . Far emptions, the court’s majority ruled that from representing an effort to reinforce institutions “seeking tax-exempt status any perceived “common community con- must serve a public purpose and not be science,” the provision of tax exemptions contrary to established public policy.”43 to nonpro½t groups is one indispensable Although concurring with the majority means of limiting the influence of govern- decision, Powell questioned the court’s mental orthodoxy on important areas of assertion that the exemption of charita- community life.45 ble organizations required that they be in “It would be dif½cult indeed,” Powell harmony with established public policy. expanded, “I am unconvinced,” he declared, to argue that each of these organizations that the critical question in determining reflects the views of the “common com- tax-exempt status is whether an individual munity conscience” or “demonstrably . . . organization provides a “clear public

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Philan - [is] in harmony with the public interest.” regardless of its purposes, could apply for thropy, the . . . They illustrate the commendable toler- and receive charitable tax-exempt status Nonpro½t 49 Sector & the ance by our Government of even the most from the Internal Revenue Service. Democratic strongly held divergent views, including At the same time, traditional member- Dilemma views that at least from time to time are “at ship organizations, which had once com- odds” with the position of our Govern- manded the loyalty and engagement of ment. We have consistently recognized millions of Americans, virtually disap- that such disparate groups are entitled to peared–to be replaced by nationally share the privilege of tax exemption. headquartered “checkbook membership” entities, in which members had no roles Given the importance of our tradition of save as ½nancial contributors.50 pluralism, Powell concluded, “[the] inter- Accompanying this development was a est in preserving an area of untrammeled major shift in the sources of nonpro½t choice for private philanthropy is very ½nancing from donations to earned in- great.”46 come–which included not only sales of Powell argued that tax exemption, goods and services, but also government rather than serving as a subsidy for orga- contracts. By the early twenty-½rst century, nizations supporting government poli- nearly 90 percent of nonpro½t revenues cies, was a subsidy for pluralism and free- came from earned income and little more dom of speech and belief–a view entirely than 10 percent from donations. As the compatible with the notion of money as distinctions between for-pro½t and non- speech endorsed in Buckley v. Valeo. pro½t enterprises became less clear, the The process of monetizing politics was tax privileges accorded the latter became completed in 2010, with the U.S. Supreme increasingly dif½cult to justify.51 More Court’s ruling in Citizens United v. Federal seriously, as nonpro½ts be came increas- Election Commission, which opened the ingly market-driven, their ties to historic electoral process to unlimited contribu- missions like social justice diminished. tions by corporations and individuals.47 The erosion of clear boundaries between Following that decision, nonpro½ts began business and charity was accompanied to serve as important conduits of cam- by a similar erosion of distinctions be - paign contributions by wealthy individu- tween nonpro½ts and government. This als, corporations, and trade associations. was primarily due to conservative poli- In the meantime, the distinctions be - cies that promoted the outsourcing of tween nonpro½t and for-pro½t forms activities that had once been the province were breaking down. Through the 1960s, of government to contractors, both for- charitable tax-exempt status had been pro½t and nonpro½t. restricted to organizations engaged in a A few jurisdictions resisted these trends. limited range of charitable, educational, Pennsylvania court decisions, later cod- and religious activities. By the end of the i½ed in statute, made tax exemption con- century, these enumerated purposes had tingent on a ½ve-prong test: a) that the largely been replaced by a far more entity advance a charitable purpose; b) expansive nondistribution rule, under that it donate or render gratuitously a which the only criteria for exempt status substantial portion of its services; c) that were that an organization’s activities not it bene½t a substantial and inde½nite class be illegal, impossible, or impracticable of persons who are legitimate subjects of and that ½nancial surpluses, if any, not be charity; d) that it relieve government of distributed to organizational principals.48 some of its burden; and e) that it operate This meant that virtually any organization,

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entirely free from private pro½t motive. and vice-versa. Potentially, at least, gov- Peter But Pennsylvania was exceptional in its ½ - ernment is in a position to generate a more Dobkin Hall delity to a genuinely charitable standard.52 reliable stream of resources, to set priorities on the basis of a democratic political Writing in the late 1980s, political sci- process instead of the wishes of the entist Lester Salamon argued that the wealthy, to offset part of the paternalism of partnership that had evolved between the charitable system by making access to government and the nonpro½t sector had care a right instead of a privilege, and to produced the modern welfare state. Sala- improve the quality of care by instituting mon pointed out that while the federal quality-control standards. By the same government played a crucial role as a token, however, voluntary organizations provider of funds and direction, for the are in a better position than government to actual delivery of services it had depended personalize the provision of services, to on other institutions–“states, cities, coun- operate on a smaller scale, to adjust care to ties, universities, hospitals, banks, indus- the needs of clients rather than to the trial corporations,” and, of course, non- structure of government agencies, and to pro½ts. “Far from the bureaucratic mono- permit a degree of competition among lith pictured in conventional theories, the service providers.55 welfare state in the American context Unfortunately, the fortuitous comple- makes use of a wide variety of third parties 53 mentarities between the private sector to carry out government functions.” and the state described by Salamon three These third parties, particularly the decades ago have largely disappeared and nonpro½t sector, in turn relied on the have been replaced by an extraordinary government to ful½ll its own purposes concentration of wealth and power in the because of a number of key “voluntary hands of a few hundred individuals and failures” in efforts to privately provide corporations. Government no longer has for public needs. These included: “phil- either the resources to compensate for anthropic insuf½ciency,” the inability of the insuf½ciency of philanthropic re- the voluntary system to generate resources sources, or the authority to counteract on a scale both suf½ciently adequate and the particularism, paternalism, or ama- reliable to cope with the human services teurism of the wealthy who now control problems of an advanced industrial soci- not only the major sources of policy (par- ety; “philanthropic particularism,” the ticularly the universities), but also the inability of private organizations and political process itself. their benefactors to identify and focus on With the extraordinary growth in wealth the groups most in need of services; inequality over the past quarter century “philanthropic paternalism,” the undue and the increasing laxity of the laws regu- influence of the wealthy in determining lating charity, it is hardly surprising that which groups receive services; and “phil- rich–especially the newly rich–have anthropic amateurism,” the tendency to turned enthusiastically to philanthropy. offer moral and religious remedies to The most recent Forbes magazine annual problems that demanded more pragmatic 54 billionaires issue, under the title “making solutions. it big, giving it big,” was devoted to the Signi½cantly, Salamon notes, ways that the wealthiest Americans, led the voluntary sector’s weaknesses corre- by Bill Gates and Warren Buffett, were spond well with the government’s strengths, dispensing their charitable dollars.56 The magazine included pro½les of major phi-

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Philan - lanthropists and panel discussions on The ongoing legislative struggle over thropy, the topics of common interest, giving partic- the national budget reflects this con- Nonpro½t Sector & the ular attention to Bill and Melinda Gates, stricted vision. Among the “loopholes” Democratic whose foundation, with its $36 billion Congress and interested policy-makers Dilemma endowment, is the largest in the world. are considering eliminating is the chari- The Gates Foundation, while notable for table deduction. Almost uniformly, the the breadth of its interests, which include deduction is defended–in the face of major efforts to address global health and obvious facts–both in scholarly journals poverty, is surprising in the shallowness and in the daily press as essential to sus- of its understanding of the causes of taining American philanthropy. The reality these problems. An essay by Bill Gates is that large-scale philanthropy existed titled “The Power of Catalytic Philan- long before the charitable deduction, thropy” begins with a paean to the eco- which is less than a century old.59 Analy- nomic system that gave him his wealth. ses of charitable giving show that lower “I am a true believer,” Gates declares, “in income Americans, who receive no tax the power of capitalism to improve lives. incentives for giving, give as much–or, Where the free market is allowed to oper- some scholars argue–greater propor- ate, it is agile and creative. It can meet tions of household income than the demand the world over and plays a cen- wealthy. (This is called the “U-shaped tral role in increasing living standards.”57 curve.”)60 Since fewer than half of Ameri- At no point, either in the essay or in his can taxpayers itemize their deductions– and Melinda’s contributions to the which is necessary to qualify for tax Forbes 400 Philanthropy Summit, did bene½ts–the deduction is clearly a subsidy they–or any of their fellow billionaires– for the well-to-do rather than the average address questions of power, powerless- taxpayer. In addition, the poorest states in ness, or democratic process. the union–those with the lowest reported Whatever good they may do in their household incomes–are the most gener- giving, the Gateses and their fellow mega- ous in terms of charitable giving; the donors exemplify Salamon’s critique of the most wealthy states are among the least shortcomings of private philanthropy un- generous.61 Finally, the overall decline constrained (and evidently uninformed) since the 1930s in the proportion of annual by the core political and ethical values of income donated to charity suggests that the society that produced them. They see the deduction’s impact is far less power- no need for fundamental change in the ful than we conventionally assume.62 world order. Rather, they remain commit- Ironically, the larger the scope and scale ted, as one recent critic put it, to “high- of philanthropy and the nonpro½t sector, tech expert-led solutions, free-market the more evident their shortcomings and ‘comparative advantage’ economics, have become. Economic inequality created and to American/western power and the very system that made big philan- global leadership,” which soar above “the thropy possible. Under the circumstances, oft-expressed and lofty interest in feed- it is hardly surprising that contemporary ing the hungry and poor of this world. . . . philanthropy is largely unconcerned The foundations remain primordially about growing economic inequality do - attached to the American state, a broadly mestically and globally, nor is it surpris- neo-liberal order with a safety net, and a ing that philanthropy has made so little global rules-based system as the basis of effort to be more publicly accountable or continued American global hegemony.”58 more democratic in its decision-making.

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The central dilemmas of private initia- growing power of nonpro½t institutions Peter tives in democratic contexts, viewed as have not been matched by an expansion Dobkin Hall unsolvable two centuries ago, remain of our moral imagination. Huge dona- insoluble today: unrestricted expressive tions from the titans of technology and and property rights are fundamentally ½nance have not produced any great new incompatible with legal and political institutions (comparable to the modern equality so long as government lacks the research university) or initiatives (like capacity to counterbalance the power of the anti-slavery movement) that would special interests. For most of our history, make the world more just. Rather, they government had this capacity, though have served primarily to burnish the pub- that is no longer the case. lic reputations of donors, to promote More worrisome, the extraordinary market triumphalism, and to remove reg- accumulation of philanthropic resources ulations that historically limited the pub- in the last thirty years and the steadily lic influence of private wealth.

endnotes 1 George Washington, “Farewell Address,” in Basic Writings of George Washington, ed. Saxe Commins (New York: Random House, 1948), 608–616. 2 “Among democratic nations,” Tocqueville writes, “all the citizens are independent and feeble; they can hardly do anything by themselves, and none of them can oblige his fellow men to lend him their assistance. They all, therefore, become powerless if they do not learn voluntarily to help one another. If men living in democratic countries had no right and no inclination to associate for political purposes, their independence would be in great jeopardy . . . whereas if they never acquired the habit of forming associations in ordinary life, civilization itself would be endangered”; Alexis de Tocqueville, Democracy in America, vol. 2 (New York: Vintage Books, 1945), 115. 3 “In contrast to other forms of participation which can be multiplied in volume and which are capable of communicating detailed messages about citizen concerns, the vote is the single mode of participation for which the maximum input is equalized across actors, and it is a singularly blunt instrument for the communication of information”; Sidney Verba, Kay Lehman Schlozman, and Henry E. Brady, Voice and Equality: Civic Voluntarism in American Politics (Cambridge, Mass.: Harvard University Press, 1995), 23–24. 4 See Charles I. Foster, An Errand of Mercy: The Evangelical United Front, 1790–1837 (Chapel Hill: University of North Carolina Press, 1960); and Clifford S. Grif½n, The Brothers’ Keepers: Moral Stewardship in the United States, 1800–1865 (New Brunswick, N.J.: Rutgers University Press, 1960). 5 In describing the “remains of the aristocratic party in the United States,” Tocqueville writes: “When the democratic party got the upper hand, it took exclusive possession of the conduct of affairs, and from that time the laws and the customs of society have been adapted to its caprices. At the present day, the more affluent classes of society have no influence in political affairs; and wealth, far from conferring a right, is rather a cause of unpopularity than a means of attaining power. . . . As they cannot occupy in public a position equivalent to what they hold in private life, they abandon the former and give themselves up to the latter; and they constitute a private society in the state which has its own tastes and pleasures”; Alexis de Tocqueville, Democracy in America, vol. 1 (New York: Vintage Books, 1945), 186–187. In an uncharacteristic lapse, Tocqueville failed to note the extent to which “private society” included private philanthropy and the elite-controlled institutions it supported. On this, see

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Philan - Ronald Story, The Forging of an Aristocracy: Harvard and the Boston Upper Class, 1800–1870 thropy, the (Middletown, Conn.: Wesleyan University Press, 1980). Nonpro½t Sector & the 6 See Peter Dobkin Hall, The Organization of American Culture, 1700–1900: Institutions, Elites, Democratic and the Origins of American Nationality (New York: New York University Press, 1982). Dilemma 7 Oliver Wendell Holmes, Autocrat of the Breakfast Table (New York: Sagamore Press, 1957), 119–120. 8 Samuel Atkins Eliot, “Public and Private Charities of Boston,” North American Review 56 (July 1845): 135–159. 9 On legal hostility to charities, see Howard S. Miller, The Legal Foundations of American Phi- lanthropy, 1776–1844 (Madison: State Historical Society of Wisconsin, 1961). See also, Peter Dobkin Hall, “Inventing the Nonpro½t Sector,” in Inventing the Nonpro½t Sector and Other Essays on Philanthropy, Voluntarism, and Nonpro½t Organizations (Baltimore: Johns Hopkins University Press, 1992), 25–36. 10 Gallego’s Executors v. The Attorney-General (3 Leigh (Va.), 450). 11 William J. Rhees, ed., The Smithsonian Institution: Documents Relative to Its Origin and History, Smithsonian Miscellaneous Collections, vol. 17, publ. no. 328 (Washington, D.C.: Smith- sonian Institution, 1879), 1–2. 12 Ibid., 135. 13 Ibid. 14 William Ellery Channing, “Associations,” Christian Examiner and General Review 7 (1829): 1, 105. 15 Francis Wayland, The Limitations of Human Responsibility (New York: D. Appleton & Co., 1838), 109–110. 16 Ibid., 111–112. 17 Ibid., 125. 18 Gerald Gamm and Robert D. Putnam, “The Growth of Voluntary Associations in America, 1840–1940,” Journal of Interdisciplinary History 29 (4) (Spring 1999): 511–557. 19 Franklin Parker, George Peabody: A Biography (Nashville: Vanderbilt University Press, 1995), 160–167. 20 Theda Skocpol, “How Americans Became Civic,” in Civic Engagement in American Democracy, ed. Theda Skocpol and Morris P. Fiorina (Washington, D.C.: Brookings Institution Press, 1998), 27–80. 21 Andrew Carnegie, “Wealth,” North American Review 148 (June 1889): 653–654; Andrew Carnegie, “Wealth,” North American Review 149 (December 1889): 682–698. 22 On Carnegie, see Joseph Frazier Wall, Andrew Carnegie (Pittsburgh: University of Pittsburgh Press, 1970); and David Nasaw, Andrew Carnegie (New York: Penguin Press, 2006). 23 Raymond Fosdick, The Story of the Rockefeller Foundation (New York: Harper & Row, 1952), 3. 24 “Hearing before Committee on the District of Columbia on the Bill to Incorporate the Rock- efeller Foundation,” Bill S. 6888, 61st Cong., 2nd sess., March 11, 1910, 2. 25 Ibid., 8. 26 Peter Collier and David Horowitz, The Rockefellers: An American Dynasty (New York: Holt, Rinehart and Winston, 1976), 64. 27 The Rockefeller Foundation, “Report of the Committee on the Judiciary to Accompany H.R. 21532,” Report No. 529, 62nd Cong., 2nd sess., April 11, 1912, 5–6. 28 Alexander Clarence Flick, Samuel Jones Tilden: A Study in Political Sagacity (New York: Dodd, Mead & Company, 1939), 510–518. Another notorious New York case in this period was the suit against Cornell University based on the fact that a bequest had enlarged the institution’s

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endowment beyond the limit set by the state legislature. See “Decided against Cornell,” New Peter York Tribune, November 28, 1893. Dobkin Hall 29 James Barr Ames, “The Failure of the Tilden Trust,” (1893) in Essays in Legal History and Mis- cellaneous Legal Essays (Cambridge, Mass.: Harvard University Press, 1913), 285–297. 30 Laws of the State of New York Passed at the One Hundred and Sixteenth Session of the Legislature, Begun January Third, 1893, and Ended April Twentieth, 1893, in the City of Albany, vol. 2 (Albany, N.Y.: James B. Lyon, Printer, 1893), 1748. 31 On the Commission, see Graham Adams, Jr., The Age of Industrial Violence, 1910–1915: The Activities and Findings of the Commission on Industrial Relations (New York: Columbia Univer- sity Press, 1966). 32 Senate Commission on Industrial Relations, vol. 7, “Centralization of Industrial Control and Operation of Philanthropic Foundations” (1916), 7646. 33 Ibid. 34 Ibid., 7647. 35 On the beginnings of the Ford Foundation, see William Greenleaf, From These Beginnings: The Early Philanthropies of Henry and Edsel Ford, 1911–1936 (Detroit: Wayne State University Press, 1964); and Dwight MacDonald, The Ford Foundation: The Men and the Millions (New York: Reynal and Company, 1956). 36 For overviews of these investigations, see F. Emerson Andrews, Foundation Watcher (Lan- caster, Pa.: Franklin and Marshall College, 1973), 131–147; and Hall, “Inventing the Non- pro½t Sector,” in Inventing the Nonpro½t Sector, 66–69. 37 On the congressional investigations of the early 1950s, see U.S. House of Representatives, “Hearings before the Select Committee to Investigate Tax-Exempt Foundations and Com- parable Organizations,” H. Res. 561, 82nd Cong., 2nd sess. (Washington, D.C.: Government Printing Of½ce, 1952); U.S. House of Representatives, “Final Report of the Select Commit- tee to Investigate Foundations and Other Organizations,” pursuant to H. Res 561, 32nd Cong., 2nd sess. (Washington, D.C.: Government Printing Of½ce, 1853); House of Repre- sentatives, “Tax Exempt Foundations: Report of the Special Committee to Investigate Tax- Exempt Foundations and Comparable Organizations,” H. Res. 217, 83rd Cong., 2nd sess. (Washington, D.C.: Government Printing Of½ce, 1954). 38 On Patman, see Frank Emerson Andrews, Patman and Foundations: Review and Assessment (New York: Foundation Center, 1968). Critiques of foundations include Ferdinand Lundberg, The Rich and the Super-Rich: A Study in the Power of Money Today (New York: Lyle Stuart, 1968); and C. Wright Mills, The Power Elite (New York: Oxford University Press, 1959). 39 On the Filer Commission, see Eleanor L. Brilliant, Private Charity and Public Inquiry: A History of the Filer and Peterson Commissions (Bloomington: Indiana University Press, 2000); and Hall, “Inventing the Nonpro½t Sector,” in Inventing the Nonpro½t Sector, 70–80. 40See especially “The Powell Memo” (a.k.a. the “Powell Manifesto”), August 23, 1971, http:// reclaimdemocracy.org/powell_memo_lewis/. 41 On the right’s embrace of philanthropy and nonpro½ts, see Andrew Rich, Think Tanks and the Politics of Expertise (New York: Cambridge University Press, 2004). 42 Buckley v. Valeo, 424 U.S. 1 (1976). 43 Bob Jones University v. United States, 461 U.S. 574 (1983). 44 Ibid., 608. 45 Ibid. The quote from Justice Brennan is from his concurring opinion in Walz v. Tax Commis- sion (1970). 46 Ibid., 609–610.

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Philan - 47 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). thropy, the 48 Nonpro½t Evelyn Brody, “The Legal Framework for Nonpro½t Organizations,” in The Nonpro½t Sector: Sector & the A Research Handbook, 2nd ed., ed. Walter W. Powell and Richard Steinberg (New Haven, Democratic Conn.: Yale University Press, 2006), 246, 253. Dilemma 49See Stephanie Strom, “Grab Bag of Charities Grows, Along With U.S. Tax Breaks,” The New York Times, December 6, 2009. As Strom notes, “[N]onpro½ts are skillfully exploiting the tax code’s broad and elastic de½nition of what constitutes a charity, making it dif½cult for the Internal Revenue Service, which must bless them, to say no.” 50 See Theda Skocpol, Diminished Democracy: From Membership to Management in American Civic Life (Norman: University of Oklahoma Press, 2003). 51 See Stephanie Strom, “Tax Exemptions of Charities Face New Challenges,” The New York Times, May 26, 2008. 52 Hospital Utilization Project v. Commonwealth of Pennsylvania, 507 Pa. 1; 487 A.2d 1306 (1984). 53 Lester M. Salamon, “Of Market Failure, Voluntary Failure, and Third Party Government: Toward a Theory of Government-Nonpro½t Relations in the Modern Welfare State,” in Shifting the Debate: Public/Private Sector Relations in the Modern Welfare State, ed. Susan A. Ostrander, Stuart Langton, and Jon Van Til (New Brunswick, N.J.: Transaction Press, 1987), 37. 54 Ibid., 36–42. 55 Ibid., 42. 56 On the origins of the philanthropic enthusiasm of the new rich, see Nicholas D. Kristof, “How Giving Became Cool,” The New York Times, December 26, 2012. 57 Bill Gates, “The Power of Catalytic Philanthropy,” Forbes, October 8, 2012, 50–51. 58 Inderjeet Parmar, The Foundations of the American Century: The Ford, Carnegie, and Rockefeller Foundations in the Rise of American Power (New York: Columbia University Press, 2012), 264–265. 59 Notably, the greatest philanthropic gifts of John D. Rockefeller, Andrew Carnegie, and Olivia (Mrs. Russell) Sage were made before the enactment of the charitable deduction. 60On the U-shaped curve, see Christopher Jencks, “Who Gives to What?” in The Nonpro½t Sec- tor: A Research Handbook, ed. Walter Powell and Richard Steinberg (New Haven, Conn.: Yale University Press, 1987), 322–323. For arguments against this interpretation of the data, see John J. Havens, Mary A. O’Herlihy, and Paul G. Schervish, “Charitable Giving: How Much, by Whom, and How?” in The Nonpro½t Sector, 2nd ed., 545. 61 See Peter Dobkin Hall, “Religion, Philanthropy, Service, and Civic Engagement in Twentieth Century America,” in Gifts of Money and Time: The Role of Charity in America’s Communities, ed. Arthur C. Brooks (Lanham, Md.: Rowman & Little½eld, 2005), 167–170. 62 Colin B. Burke, “Nonpro½t History’s New Numbers (and the Need for More),” Nonpro½t and Voluntary Sector Quarterly 30 (2001): 174, 186.

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Reluctant Stewards: Journalism in a Democratic Society

Michael Schudson

Abstract: Journalists are reluctant stewards for democracy because they believe that democracy makes citizens their own stewards. They resist donning the mantle of moral guides on behalf of those who are authorized to guide themselves. Yet sometimes journalists do exercise responsibility for the public good in ways that are not subsumed under their professional duty to be nonpartisan, accurate, and fair-minded. Examining some of these exceptions, this essay argues that journalistic stewardship should be loosely de½ned, decentralized, multiform, and open to invention. In fact, today’s economic crisis in journalism (and the identity crisis it stimulated) has launched a new set of initiatives–from fact-checking to organized crowd-sourcing–that have each sought to address a speci½c problem of democracy, truth- seeking, or the public good. Pluralism, pragmatism, and decentralized invention may do better at stewarding democracy than a coherent philosophy of moral guardianship ever could.

Journalism, for all its occasional lofty pretensions, sits awkwardly in a discussion about stewards of democracy. Journalism is not even supposed to be about stewardship–that is, a kind of trusteeship or moral management suggesting that stewards, like fathers, “know best” (with all the paternalism that this message implies). The premise of “objective journalism” is otherwise: namely, that the citizen knows best and that the journalist is only providing MICHAEL SCHUDSON the parts–pre-cut but un½nished–for citizens to , a Fellow assemble themselves. Journalists are reluctant of the American Academy since 2012, is Professor of Journalism at stewards for democracy because they believe democ- Columbia University. His publica- racy makes citizens their own stewards. tions include Why Democracies Need However, this philosophy of journalistic profes- an Unlovable Press (2008), The Endur- sionalism is riddled with self-deception, as the daily ing Book: Print Culture in Postwar practice of journalism regularly demonstrates. America (edited with David Paul There is a long list of exceptions to “just the facts” Nord and Joan Shelley Rubin, journalism, including not only disapproved excep- 2009), and The Sociology of News (2nd ed., 2011). His writing has also tions–advocacy under the guise of objectivity, appeared in the Columbia Journal- say–but highly respected ones, too. These range ism Review, The Wilson Quarterly, and from avowed advocacy on the editorial page to The American Prospect. analysis that, without endorsing speci½c policy

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Reluctant conclusions, is more substantially inter- It was again the case in 1986 when The Stewards: pretive and context-providing than a Washington Post learned of a secret U.S. Journalism in a straightforward news story. There is also underwater mechanism code-named “Ivy Democratic a widely shared view among mainstream Bells” that had successfully tapped Soviet Society journalists that their coverage should be cable communications. The Post also inclusive of women as well as men, young knew that the operation had been com- as well as old, racial minorities as well as promised by the efforts of Jack Pelton, a whites, and non-heterosexuals as well as low-level technician for the National heterosexuals. Today, news organizations Security Agency (nsa) and spy who sold seek diversity in the newsroom as well as information to the Russians. Newsroom in news coverage not to reach a larger executives at the Post met with nsa Direc- market in quest of pro½t, but to realize tor Lieutenant General William Odom, ideals of social justice, even though they who urged them not to publish anything. fought the employment and advancement Odom contended that any story about of women in the 1960s and 1970s.1 Ivy Bells would be dangerous to the coun- Patriotism is also part of the package of try, revealing to the Soviets something exceptions. In Europe, it is commonplace they did not know. But they already know, in the charters of public service broad- editor Ben Bradlee countered. Neverthe- casting organizations to acknowledge less, Odom said, it was unclear precisely and af½rm an obligation to serve the needs which Soviets knew about Ivy Bells. of national identity and national af½l- There might have been internal Soviet iation even while also meeting statutory secrecy or a cover-up. A story in the Post requirements to provide programming would set off a general alarm in the Sovi- for recognized minority populations. The et Union, increasing Soviet anti-espionage bbc, at its beginning, was dedicated to measures–a bad outcome for the United promoting a sense of “Britishness” that States. Odom’s protest was enough to included celebrating a distinctively British make the Post cautious. Successive drafts heritage and even an allegiance to the prac- were written, each with less detail than tices of the Church of England. Steward- the one before. Bradlee repeatedly asked ship indeed! For many Americans and for his colleagues, “What is this story’s social most American journalists, such an openly purpose?” In the end, the Post published tutelary mission is not only not part of the story–over the objections of the ad- their creed–it would turn their stomachs. ministration–after a back and forth that Still, American journalists also act in lasted months.4 ways that express obligation to and af½l- The Post has made similar decisions iation with the nation-state.2 When Amer- much more recently. In 2009, as editor ican journalists have a story they think may Marcus Brauchli recounts it, longtime reveal secrets that bear on national secu- investigative reporter Bob Woodward rity, they customarily notify the govern- received a copy of a con½dential report ment ahead of time and even negotiate produced by General Stanley McChrystal the content of the story with the White about the war in Afghanistan. The Post House or relevant executive agencies. This informed both the Pentagon and the was the case in 1961 when The New York White House that it planned to write Times got wind of the impending Bay of about the report and to publish the com- Pigs invasion and voluntarily modi½ed its plete document on its website. The secre- story on the strenuous urgings of the tary of defense, national security advisor, White House.3 and vice chair of the Joint Chiefs of Staff

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each asked the Post to reconsider. Brauchli, Any decisions that introduce other mat- Michael in telling this story, has said: “We should ters, even if they are considerations that Schudson pause on that word, ‘ask.’ . . . [I]t is a curi- journalists are committed to–social jus- ously American phenomenon that the tice or community pride or national secu- most powerful of½cials in the world’s rity–are uncomfortable. They compli- most powerful country have virtually no cate or pollute the purity of the journalis- power to do anything but ask an editor to tic task. In 2003, Dean Baquet, who is weigh the national interests against the today managing editor of The New York impulse to publish and then leave the edi- Times but was then managing editor at tor to make his decision.”5 But note that the Los Angeles Times, was involved in a by conceding to the government the op- decision about whether to publish a dam- portunity to do the asking, the Post, as an aging story about Arnold Schwarzeneg- institution, recognized obligations beyond ger, then a leading gubernatorial candi- journalism in deciding what to publish. date in California. The paper had gath- These practices express a sense of stew- ered a half-dozen credible allegations by ardship with regard to the public inter- women in the movie industry that est–in this case, a public good jointly Schwarzenegger had sexually harassed guarded by the press and the govern- them. With the story ready to print just ment. This coguardianship is most notable days before the election, the editors won- in times of war or other moments when dered if they should delay running it until national security appears to be at risk. In after the election. Would the article not the United States, but also in France and seem to be a “hit piece” sprung on Britain, the news media and the state Schwarzenegger? Would the timing not share in what media scholars Daniel make it dif½cult for him to respond? Hallin and Paolo Mancini term a “na- Baquet later told a reporter (after the tional security culture” in which govern- Times went ahead and published the ment of½cials and journalists “both in story): “Sometimes people don’t under- some sense represent a common public stand that to not publish is a big decision interest” and therefore institutionalize “re- for a newspaper and almost a political lations of trust and mutual dependence.”6 act. That’s not an act of journalism. You’re During the war in Iraq, there was great letting your decision-making get clouded controversy among journalists about the by things that have nothing to do with advantages and disadvantages to fair- what a newspaper is supposed to do.”7 minded reporting brought about by the Baquet’s is a revealing and representa- system of embedding journalists in U.S. tive statement: journalism is journalism, military combat units; but no one raised not politics, and it should stick to that role. the question of whether reporters should Journalism is making information public; also be embedded with Saddam Hussein’s choosing not to publish for any rea- forces. Leading news organizations have son–except, in Baquet’s view, insuf½cient accepted an awkward, but notable, af½l- journalistic quality or the possibility that iation with their own country’s interests. publishing could endanger a life–abro- American journalism professionals un- gates one’s professional responsibility. derstand their job to consist of publish- How did such a view of journalism arise ing news. Their professionalism resides out of what had been the standard assump- in knowing what “news” is, or more as- tion in nineteenth-century America (and sertively, what “the news” is, how to locate most of Europe) that journalism is and it, how to verify it, and how to present it. obviously should be a political vocation?

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Reluctant In 1889, Woodrow Wilson, then a politi- “journals,” as they were called, predate the Stewards: cal scientist at Princeton, gave an address hiring of people to gather news; hired Journalism in a on the “Nature of Democracy in the reporters were rare before the nineteenth Democratic United States.” He observed that popular century.) Rather, it was that a newspaper Society education for democracy did not rely in 1880 served primarily as “a collection only on schools. “Not much of the world, of raw information.” By 1930, however, it after all, goes to school in the school- had become “a form of knowledge in itself, house,” Wilson noted. “But through the not dependent on other discourses to be mighty influences of commerce and the able to make statements about the press the world itself has become a school.” world.”9 He did not say that we live in a “global- The Victorian newspaper was “a med- ized” society, but the implication was clear. ley of various public styles, voices and The newspaper press, Wilson argued, types of text.” Not until around 1920 did the emergence of “a journalistic dis- makes men conscious of the existence and course” allow “the news to subsume interest of affairs lying outside of the dull these various voices under a universal, round of their own daily lives. It gives them standard voice.”10 Journalism scholar nations, instead of neighborhoods, to look Marcel Broersma, in a study of change in upon and think about. They catch glimpses Dutch newspapers, describes the period of the international connexions of their of the nineteenth century and up to the trades, of the universal application of law, 1940s as an era in journalism in which of the endless variety of life, of diversities reporters had not yet accepted that their of race, of a world teeming with men like job was to “extract news from events.” themselves and yet full of strange customs, But by the mid-1940s, Broersma observes, puzzled by dim omens, stained by crime, “[r]eaders were no longer left to draw ringing with voices familiar and unfamiliar. their own conclusions; the journalist Nor did he say that we lived in an age of now told them what the most important information abundance, but this, too, information was.”11 Modern news dis- was his belief: “And all this a man can get course in Holland–borrowed from British nowadays without stirring from home, and American models–was a mid-twen- by merely spelling out the print that cov- tieth-century development. ers every piece of paper about him.”8 The American newspaper adopted a In 1889, the typical newspaper was “modern news discourse” well before the closely af½liated with a political party; its Dutch and roughly a generation before news pages, as well as its editorial page, the British, in the period from 1890 to reflected this allegiance. At the same time, 1910. Before that time, the front page had newspapers were only beginning to speak a jumbled, random quality to it. Stories in what we would recognize today as a were composed in a variety of voices, and distinctively journalistic voice. In a study news was arranged on the page (to the of British journalism, media scholar extent that it was arranged at all) accord- Donald Matheson ½nds that modern ing to the conveyance by which items news discourse, certainly absent in 1880, reached the paper (“Latest by Tele- was not widespread until the 1920s. But it graph”). Only at the turn of the twentieth was not, in Matheson’s view, that putting century did newspapers begin to utilize news in newspapers was unheard of at front page design–including headline size, that time. There were not only newspa- number of columns, and placement of pers but also reporters. (Newspapers, or stories on the page–to signal to the read-

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er that one item merited attention more identi½ed with journalism’s democratic Michael than another. Thus, as judgment about rationale.) Schudson the signi½cance of news items became The other danger is that journalists are central to journalism, a more uniform vulnerable not only to their sources but journalistic stance and voice emerged. At to their audiences or to the drive to about the same time, newspapers adopt- attract an audience. This is scarcely un- ed the summary lead, an opening para- known in other professional pursuits. graph in each story that quickly present- Even members of the clergy want to draw ed the most newsworthy “who, what, a crowd at occasions other than the chris- when, where, and–sometimes or by tenings, marriages, funerals, and high implication–why” of the story to fol- holidays that ensure a captive audience. low.12 In the layout of the page, the struc- To this extent, the clergy, too, are market ture of the news story, and the delegation oriented; they strive to invent weekly of an overwhelming amount of the news services that appeal to their congregation space to the work of full-time journalists, and create a buzz. Still, they are not modern news discourse emerged. answerable to boards of directors who All of this is to say that the journalism must award shareholders a return on we often take to be “traditional” is only their ½nancial investments. about a century old. The notion of jour- Further, journalists have little control nalistic professionalism that has accom- over who may enter their ½eld. They can- panied this twentieth-century phenome- not prescribe a course of study or a degree, non is a strong, self-conscious commit- as in law or medicine, nor do they have ment to a news-gathering mission that mechanisms for removing members of transcends parochial allegiances and even, the profession who fail to live up to pro- to some degree, national borders. Jour- fessional ethics, the way bar associations nalistic professionalism erects partial and medical societies do. So journalists shields against the demands of state or are vulnerable to the seductions of the source control, audience preferences, marketplace. Their task as professionals and commercial pressures. It does not is not to ½nd an audience but to ½nd an share all the major attributes of “classic” audience without prostrating themselves professions such as law, medicine, and before its tastes and prejudices. the clergy. Journalists’ professional inde- The power that sources and audiences pendence is tempered by reporters’ (some- exercise over news makes stewardship times abject) dependence on political problematic because journalists do not insiders for content. The information control their own vocational agenda. that insiders provide to journalists is then Another dif½culty is that journalists are relayed to the general public through resistant to the idea of stewardship itself. news stories about electoral contests and Journalists frequently enter the ½eld with the operation and performance of gov- high moral purpose along with a love of ernment. Ever present in this process is writing, photography, or digital expres- the danger that journalists will become sion; perhaps a sense of adventure; and the unpaid public relations agents of often an ambient curiosity rather than a public of½cials and political candidates focused intensity. They also have, or who have the power to turn on and off develop, a pride in their familiarity with the spigots of political information. (Of practical life. They resist assuming too course, political news is not the only much in the way of moral responsibility; news, but it is the news most closely they object to choosing a topic or adopt-

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Reluctant ing a tone as if they were drafting Sun- by contrast, identi½es himself with the Stewards: day’s sermon. Journalists are determined “lowest of the low” and revels in making Journalism in a to face facts: New York Times reporter trouble. Is Brauchli the parent, Sullivan Democratic Harrison Salisbury recalls in his memoir the rebellious child? Is one position better Society that he had little use for ideas and a for journalism than the other? Brauchli is “½erce antagonism to ideologues.” He the old steward of moral responsibility, liked to see himself as “a hard-hitting, even though he invokes that obligation two-½sted, call-them-as-they-come re- only at the margins–that is, only at the porter.” Salisbury was guided by his uncomfortable extremes where everyday “Minnesota turn of mind” and his “com- acts of reporting prove insuf½cient to the monsense approach.” For him, as for so weight of the world on journalists’ shoul- many reporters, the rule of journalism is ders. Sullivan speaks for everyday jour- to leave codes, doctrines, and textbooks nalism as a truth-regarding, heat-seeking behind and be led by reality itself.13 missile for attacking ignorance and This has usually meant placing a higher thoughtlessness. value on reporting than on opining. But even opinion-spouting journalists often The absence of a self-conscious and refuse to issue their views from Mount consistent philosophy of stewardship Olympus. Political commentator Andrew should not be mistaken for a lack of Sullivan rejects “[t]he notion that jour- instruction and influence. The news nalists have reputations, that we should media describe, de½ne, and, to a degree, be up on a pedestal.” “[M]aybe it’s because direct public life and the discourse sur- I am British,” he suggests, but “I think rounding it, whether or not they intend we’re the lowest of the low. I think our to be its stewards. When golf fanatic job is to say things that no one else will Dwight D. Eisenhower became presi- say and to ½nd out things that make peo- dent, the press routinely covered his pas- ple very uncomfortable, the powerful sion for the sport. This contributed to the and the powerless. I think our job is not sharp upturn in people’s taking up golf to worry about the impact of what we for the ½rst time.15 President Jimmy ½nd out and say but to say what we think Carter was a fly ½sherman. Fly-½shing and to report what we see.”14 Sullivan, of grew vastly more popular after he came course, is no ordinary journalist. Equipped into of½ce.16 When the president sneezes, with a Harvard Ph.D., he has successfully everyone thinks they have caught a cold. reached the public since 2000 primarily In 1985, when Ronald Reagan underwent as a blogger. surgery for colorectal cancer, the national Is Andrew Sullivan’s position less Cancer Information Service received an responsible than Marcus Brauchli’s, as unprecedented increase in phone calls, discussed above? Brauchli’s argument most of them from people seeking advice sounds more grown-up; he speaks as on colon cancer checkups. According to a someone aware that he is in a position to Newsweek poll, 25 percent of adults gave do great, even irreparable, harm to the thought to being tested in the days after world not only by reporting poorly but by Reagan’s cancer became public knowl- reporting without recognition of over- edge. Five percent actually arranged to be arching loyalties–including ½delity to tested–for a total of some ½ve to ten mil- the well-being of a polity and a political lion doctor’s appointments!17 system that enables the press to be for- Culture critic Robert Hughes suggested mally and legally autonomous. Sullivan, that Ronald Reagan “left his country a little

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stupider in 1988 than it had been in 1980, larly this democratic society, with its Michael and a lot more tolerant of lies.”18 (Possibly, resistance to government “intrusion” Schudson he also left the country a little better pro- inherited from the nation’s founders but tected from colorectal cancer.) And polit- exacerbated and exaggerated in the post- ical commentator David Bromwich wrote Reagan era. Let me propose three general that Reagan’s great work was “the educa- principles for stewardship in the media: tion of a whole society down to his level,” First, stewardship should be exercised in not just by his precept but “by example, moderation; it should be a stewardship simply by being who he was; day after of loose reins. Second, stewardship should day without blame, a president who had be decentralized and multiform, more a at his command not a fact of history more set of practices seeking to enhance a use- than two weeks old.”19 Neither Hughes nor fully vague sense of democracy than a set Bromwich adduce any evidence for their of guiding ideals based on a clearly artic- assessments. But their critical remarks have ulated philosophy of the functional loca- a clear plausibility. If media coverage of tion of news in a democratic culture. presidents can stimulate the sale of golf Third, at rare but critical junctures, jour- clubs or ½shing rods, if it can draw mil- nalism cannot and should not give up lions to accept the unpleasantness of a colo- what has been called “social trustee pro- noscopy–all simply by reporting everyday fessionalism” for “expert professional- facts about presidents–then it is easy to be- ism,” but it must acknowledge that it is lieve that Reagan, repeatedly willing, with- suspended awkwardly between them.20 out qualms, to pass off movie-based anec- That is, as necessary as a focused profes- dotes for actual historical events, taught sionalism is most of the time, it is not dubious civics lessons about truthfulness suf½cient all of the time. Vital as profes- simply by having his behaviors transcribed sionalism is in guiding news practice by the press for public transmission. ordinarily, it is not an adequate refuge in But these are cases of influence rather those moments when journalists face than stewardship–speci½cally, influences threats to transcendent values of democ- that derive from the subjects journalists racy, human rights, public safety, and an cover and the sources they rely on. Here, accountability to future generations. the journalists serve as messengers, not For the news media, there is a rationale stewards. But do journalists–and should for a tempered, practice-centered ap- they–seek to inflect this influence in one proach to institutional responsibility. way or another? Should they choose their This includes that journalists are, and sources and subjects with some self-con- should be, messengers of the views of scious ends in view? And can this be done others as much as or more than they are without taking on the arrogant presump- conveyers of their own views. In other tion that they are in a position to “elevate” words, the temptation to report uncriti- their audiences? Or is that presumption ar- cally the statements of public of½cials or rogant? Might it be the appropriate stew- political candidates is dif½cult to distin- ardly of½ce of a profession in the teaching, guish cleanly from the responsibility to coaching, or counseling business of public report appropriately, and with some def- information? erence, what these democratically elect- The question is not whether the press ed persons or aspirants to election have stewards or fails to, but what sort of stew- to say. ardship and philosophy of stewardship Certainly, various ½elds oblige the pro- best serve a democratic society–particu- fessional to convey the message of some

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Reluctant higher authority; thus, one may criticize but not for having mastered an arcane Stewards: “activist judges” for substituting their per- language as scientists have, or for having Journalism in a sonal or political positions for the letter gained knowledge of the secret and Democratic of the law or the weight of a line of prece- sacred interior of the human body as doc- Society dents. But in most cases that reach an tors have, or for having been entrusted appellate court, neither “the letter of the with the design of bridges or canals or law” nor precedent communicates a mes- skyscrapers as engineers and architects sage that has only one plausible reading. have, or having acquired a command of Judges must interpret the law. In a sense, relatively esoteric lore of case law as then, every appellate judge is an activist judges and attorneys have. They have judge. Otherwise, they could all be re- attained only a sense, often hard won, of placed with a good algorithm. Still, some what ingredients belong in that casserole judicial interventions are more inbounds of public signi½cance, popular interest, than others; some show more integrity immediate currency, and departure from than others in making a good-faith effort the commonplace called news. to read the law in keeping with the high- In practice, journalists frequently go est (vague) ideals of justice and the (less beyond this craft knowledge to feel obli- vague but still disputable) weight and gations to some ideal or authority higher direction of past decisions. For journal- than outdoing a rival, winning a more ists, a similar issue arises when a straight- desirable audience, or pleasing their jour- forward, fair-minded account of, say, a nalistic peers. But just what is that elusive speech by a public of½cial or candidate higher authority? An allegiance to the for of½ce holds democratic value in itself. public good? What do journalists know In this respect, it is not that journalists are of that? That is, on what grounds do they bending to politicians–but that they are presume to know more than others do? bowing to the idea and practice of demo- Or is the higher authority democracy? cratic politics. Other things equal, this is But what do journalists know of democ- itself a vital service that news provides racy that is unknown to ordinary mor- democracy. tals? Or is truth their ultimate objective? Journalists have long worked on the What do they know of truth that the rest knife edge between accepted profession- of us do not? alism on one side and pure amateurism on the other. But the delicacy of this posi- Simply asking such questions has often tion has grown in the past decade with been suf½cient to resettle the conversa- remarkable advances in what amateur or tion around the premise that journalism “citizen” journalists can contribute. As is just a trade, not a profession, and should professionals, journalists have the obliga- not promise more than it can deliver. But tions of trusteeship to an accumulated set skepticism about journalism’s pretensions of traditions and values. As practitioners to professionalism has to some extent in a ½eld where amateurs, with little or no been put aside in the past decade as jour- training or experience, make notable nalism organizations have been forced to contributions, it is clear that they are arti- cut newsroom jobs–by about a third–by sans of the public discourse, not magi- the advent of the Internet, new possibili- cians operating with recondite knowl- ties for citizen journalism, the surplus of edge. They may merit public respect and available information, the turning away gratitude for their experience, talent, of younger audiences from print newspa- craft, and sometimes astonishing courage, pers and conventional TV news, and the

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huge loss of print advertising to I ½rst noticed this second term in Michael Craigslist, eBay, Monster.com, and other Leonard Downie, Jr., and Robert G. Schudson independent websites. In many news Kaiser’s The News About the News (2002), organizations, there has been a powerful in which the authors, both of The Wash- sense that, if they are not quite at death’s ington Post, link journalism to America’s door, they should nonetheless start shop- “culture of accountability.”23 Downie ping for long-term care insurance.21 and Kaiser use accountability reporting to These troubles for the news industry refer to the kind of journalism American have fostered serious consideration of communities deserve–but do not get just what journalism’s core mission is, enough of.24 In Losing the News (2009), precisely what it contributes to demo- Alex S. Jones, former New York Times cratic society, and exactly what, if any- reporter and now director of the Shoren- thing, full-time professional journalists stein Center at the Harvard Kennedy contribute that unpaid amateurs cannot. School, argues that there is an “iron core” This reflection–there being no Supreme of news reporting that all else in journal- Court of journalism–has not produced ism–editorials, opinion columns, and any de½nitive statements. Given not only news analysis–depends on. And that the nature of journalism but the extraor- core is “what is sometimes called ‘account- dinary new opportunities to create on a ability news,’ because it is the form of shoestring budget news-gathering and news whose purpose is to hold govern- news-disseminating organizations of con- ment and those with power account- sequence, the best response to journal- able.” Sometimes called the “news of ver- ism’s crisis has not come primarily from i½cation,” this “fact-based accountability guiding essays or books, although they news is the essential food supply of democ- have had their place; rather, it has been racy.”25 And we may be starved for it, found in the practical creation of entirely particularly at the local level, as Paul Starr new news organizations by professional and others have forcefully suggested.26 journalists young and old and by a radical Journalism, as these authors acknowl- reshaping of some leading old news edge, has never been single-mindedly organizations. These initiatives are a seri- devoted to its watchdog role, and I do not ous, if decentralized and not yet well rec- think that it should be. Journalism serves ognized, response to the “stewardship” democracy in a variety of ways: providing problem, as I will try to show here. citizens information-centered political What is the core mission of journalism news, offering political analysis, under- to which its ethics should be oriented and taking investigative reporting, present- whose endangerment should raise public ing “social empathy” stories that–often concern? Answers to this question have in a human-interest vein–inform citizens taken several forms in recent years. One about neighbors and groups they may not formulation is watchdog journalism, a term know or understand, providing a location that appeared in books in the early 1960s, for public conversation, attending to how was not seen again until the late 1970s, representative democracies work, and and rose into much wider use only in the mobilizing citizens for political life by 1990s. A similar term, accountability jour- advocating candidates, policies, and nalism (or accountability reporting), ½rst viewpoints.27 surfaced around 1970, rose sharply by Some of these functions–notably, 1980, declined, and then shot up again in analysis, investigative reporting, and the 1990s.22 social-empathy coverage–have been

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Reluctant better served by the news media since or Paul Krugman–to love or hate. Ac- Stewards: about 1970 than at any prior time in our cording to Jacobs and Townsley, positing Journalism in a history. Leading news organizations have that public opinion is and should be Democratic come to accept that transmitting “just formed on a “rational information model” Society the facts” of the day’s events should not oversimpli½es a complex process; if we be the exclusive task that journalism instead accepted a “cultural model of takes on. In a study in progress, Kather- complex democracy,” then we could ac- ine Fink and I have found that in 1955, knowledge that various media formats conventional “who, what, when, where” may serve the public good. We could then stories made up 91 percent of front page see that “drama, disagreement, and strate- stories in a sample from The New York gic communication do not necessarily Times, but they made up only 49 percent undermine democratic deliberation.”28 by 2003. Figures for The Washington Post In fact, Jacobs and Townsley suggest, and The Milwaukee Journal Sentinel are sim- these often denigrated features of opin- ilar. Over this time period, we also ob- ion journalism sometimes have proven served a large increase in analytical, or superior to more conventional news contextual, reporting. shows, particularly on television. Spe- It is also of note that one of the tradi- ci½cally, in their content analysis of pro- tional functions of journalism in democ- grams from the early 1990s and the early racies–mobilization–speaks in praise of 2000s, Hannity & Colmes (Fox News) did a partisanship, whose reemergence, partic- better job than The NewsHour (pbs) or ularly on cable television, has caused Face the Nation (cbs) in challenging the considerable consternation–more than I high-level political of½cials that were think is merited. It would be devastating interviewed.29 if advocacy journalism replaced account- But isn’t opinion dangerous, especially ability reporting, but that is not what has when so many people are easily confused happened. I cannot say that the conserva- about what separates opinion from tive drumbeat of some of the most popu- fact? Even if we agree that individuals lar shows on Fox News–much like the are entitled to their own opinions, isn’t it tone of conservative radio talk shows crucial to assert that they are not enti- that frightened many people in the tled to their own facts? While I can agree 1980s–leaves me untroubled. But I see no with this, I also wonder what we can do principled objection to it. Partisanship de- about it except to hope that sunlight is serves a place at the table in print, tele- indeed a good disinfectant. True, people vision, radio, and online media. Opinion have easy access to misinformation, journalism is not only growing but, at its whether about global warming or Presi- best–like contextual reporting at its dent Obama’s religion or birthplace, but best–deserves praise. In the ½rst serious this is hardly without precedent in less sociological study of what the authors technologically remarkable times. It was call “the space of opinion” in journalism, in 1965, not yesterday, that historian Ronald Jacobs and Eleanor Townsley Richard Hofstadter wrote his account of argue that even explicitly–and often “the paranoid style” in American poli- obnoxiously–opinionated commentary tics, which he characterized as “overheat- stimulates public attention to political af- ed, oversuspicious, over-aggressive, gran- fairs and political participation when peo- diose, and apocalyptic.”30 ple have reliably opinionated ½gures–Bill In practical terms, efforts to make jour- O’Reilly or Rachel Maddow, George Will nalism serve the public good in the age of

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databases, digital media, and cable televi- fully reinforced by digital technologies, Michael sion have been taken up in different, to approach this reality not as an impedi- Schudson often imaginative, ways. First, an empha- ment but as a workable new tool for pro- sis on truth-telling–that is, the policing fessional journalism. of publicly relevant lies, spins, and misdi- Sixth, journalistic functions are less con- rections issued by political ½gures them- ½ned than ever before to organizations selves–has led in recent years to the cre- that are identi½ed primarily as news orga- ation of “fact-checking” news organi- nizations. Human rights organizations zations or fact-checking departments report news, too. Polling organizations within existing news organizations. work with–or independently of–news These influential efforts have de½ned organizations to produce newsworthy new venues and systematic procedures results on a regular basis. for holding accountable both govern- Let me discuss each of these points a bit mental leaders and those who aspire to further, because in the past decade these elective political of½ce. efforts to hold journalism to a higher Second, others in journalism have been standard than simple (in principle, not less interested in pruning misinforma- necessarily in implementation) nonpar- tion from politicians’ remarks than in tisanship or objectivity have given rise to getting behind the discourse of the day signi½cant journalistic innovations. The through the tough-slogging, often months- innovators are, if you will, practical long (or longer) investigations of power- philosophers, inventing notable responses ful public or private entities–work that to a crisis of journalistic legitimacy that is is generally termed investigative reporting. shaking the profession they thought they Third, news organizations have been were a part of or hoped to enter. The established with the primary, or even the result, although it has not yet stood the exclusive, intention of making up for test of time, may be a pluralistic set of speci½c shortfalls in political news cover- stewardships that are healthier, as a team, age, particularly at the local level. than “traditional” journalism proved to Fourth, experiments are under way to be in its single-minded–and stale–style provide more and better interpretation of reluctant stewardship. and in-depth news analysis, to present it Policing Truthfulness in Political Discourse. in more compelling ways, and to ½nd Consider the rise and spread of so-called means to help audiences visualize com- fact-checking organizations, usually traced plex materials. to efforts beginning in the 1990s to police Fifth, there is increasing acceptance of campaign rhetoric in TV advertising, the idea that stewardship can be prac- speech-making, and candidate debates. ticed in concert with, not merely for the The roots of organized fact-checking bene½t of, media audiences. The shep- have something to do with a major shift herd’s flock may be co-shepherds; the in presidential political campaigning– management’s charges may be enlisted while campaigning previously involved as co-managers; and for journalists, the events and addresses that candidates “people formerly known as the audi- hoped would generate “free media” (that ence,” in media critic Jay Rosen’s memo- is, news coverage), together with door- rable phrase, can produce news content to-door work by volunteers, there is now themselves. Stewardship in a self-con- a preponderant emphasis and substantial sciously egalitarian culture is inherently ½nancial investment in television adver- unstable. There are ways, now power- tising.

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Reluctant Some fact-checking organizations are tion and taking it further than news Stewards: avowedly partisan–liberal groups seek- organizations generally do. In “showing Journalism in a ing to fact-check conservatives, conser- their work,” as math teachers say, profes- Democratic vative groups fact-checking liberals. sional fact-checkers not only advertise Society These groups are signi½cant, but they do how thorough they are but “acknowledge not claim to salute the flag of profession- their own imperfection as arbiters of al journalism. Others do. These include truth, without relinquishing their faith in Factcheck.org, the earliest (2003) endur- and commitment to objectivity.”31 ing nonpartisan fact-checking operation, Constructing New Communities of Inves- which is largely supported by the Annen- tigative Journalism. In 2009, a group of berg Foundation and sponsored by the organizations focused on investigative Annenberg Public Policy Center of the reporting joined together to form the University of Pensylvania. The website Investigative News Network (inn). The PolitiFact.com began in 2007 as a project group initially included about a dozen of The St. Petersburg Times and its Wash- organizations. It now counts over sixty ington bureau chief Bill Adair. It has since organizations among its membership. To spun off eleven state-level PolitiFact become a member, organizations must operations. Also in 2007, The Washington be nonpro½ts. They must be transparent Post launched The Fact Checker, a blog about their donors and disclose names of (and a column in the print edition) that anyone who donates $1,000 or more. focused on the 2008 presidential cam- They must be nonpartisan, as de½ned by paign. The project ended in 2008 and was their commitment to producing inves- reorganized with a much more general tigative or public interest reporting “that focus in early 2011. is not based upon, influenced by or sup- These and other organizations take portive of the interests or policies of (i) “truth” very seriously. PolitiFact scores any single political party or political politicians’ statements on its “Truth-O- viewpoint or (ii) any single religion or Meter” as “true,” “mostly true,” “half religious viewpoint.” In short, these true,” “mostly false,” “false,” or “pants on organizations, a majority of which were ½re.” The Washington Post’s Fact Checker founded in the past ½ve years, take their scores politicians’ statements on a scale identity as professional journalism organi- from zero to four “Pinocchios.” These zations very seriously, devoting the lion’s initiatives recognize that they do not share of their attention (if not their exclu- have direct access to truth; the self- sive attention) to investigative reporting. mocking humor of their scoring systems Not all nonpro½t news organizations emphasizes this. They also publish not are inn members. Nor are all new news only their conclusions but what sources organizations that focus on investigative they consulted and how they arrived at reporting nonpro½ts. The celebrated for- their judgments. In this respect, they are pro½t TalkingPointsMemo has won na- more forthcoming about their journalis- tional awards for its investigations; it tic process than conventional news organi- also operates from an avowedly left-lib- zations. They are thereby implicitly offer- eral perspective. But there are at least sev- ing a somewhat re½ned and revised model enty-½ve nonpro½t news publishers today, of what journalism can and should be. most of them focusing on investigative Far from abandoning a professional com- journalism, and most of them begun in mitment to objectivity, fact-checking the past half-dozen years. The majority organizations are embracing that obliga- are small; at least a dozen have annual

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budgets under $100,000, which means Looking for Comparative Advantage in Michael that they operate on “‘sweat equity,’ heart Analysis. Not all efforts to rethink the core Schudson and hope,” as Charles Lewis and colleagues functions of journalism take place at put it. Together, they employ seven hun- online start-ups. At the end of 2011, the dred people and have a total annual bud- Associated Press (ap) announced a new get of $92 million.32 strategy in a memo that senior managing The inn member organizations are editor Michael Oreskes sent to the orga- committed to journalism in the public nization’s three thousand journalists interest, not to liberalism or conservatism around the world. A 150-year-old cooper- or any other political creed. Most of them ative owned by its many member news- are small and therefore potentially vul- papers, the ap is celebrated for its mas- nerable to, say, a libel suit or the threat of sive reach, its comprehensive coverage, one. This is one reason that inn arranges and its capacity to be on top of more group libel insurance for members. breaking news more quickly than any Reinventing Local News Coverage. The other news organization anywhere. But Voice of San Diego, an online news organi- this news, even when the ap has broken a zation focused exclusively on issues of story exclusively or hours or minutes government and economy in San Diego ahead of the next news organization, is and staffed by a dozen young journalists, quickly taken up by scores of other news was launched in 2005. Since then, local or outlets. What the ap needs, Oreskes ar- regional start-ups (including the Texas gues, is to transform its reporting into Tribune, for example), all with slim bud- “work with a longer shelf life.” He has gets and low-cost, online operations, given this approach a slogan-like title: have been making up for the loss of “The New Distinctiveness.” He suggests “core” reporting capacity at hundreds of a variety of approaches under this rubric, news organizations around the country. but one in particular gives the flavor of Can they do the job? Time will tell. No the policy: that is, the ap will launch a one knows if philanthropic organizations “running ‘container’ that can be used will be able or willing to sustain them anywhere.” Called “Why It Matters,” this inde½nitely, and many are seeking to feature is meant to “focus our daily jour- broaden their funding base. But their nalism on relevance without sacri½cing laser focus on core journalism means that depth.” Nothing in the proposal, Oreskes they do not need to hire a movie reviewer insists, is “a product” so much as “an or a sports staff, a lifestyle reporter or a ever-growing toolbox of approaches.”33 local-color columnist. They are not all- Incorporating Crowds into Serving Journal- purpose, general publications; they are ism’s Core Mission. London’s Guardian special-purpose-politics and economy newspaper; ProPublica, the New York- oriented. They have even found ways to based online investigative reporting orga- write stories that require no writing: nization established in 2009; and Na- Texas Tribune routinely publishes the list tional Public Radio, by way of the Public of the highest salaries on the state payroll Insight Network that Minnesota Public in Texas. No commentary is required Radio launched in 2008: all have found when you can quickly show just how distinctive ways to incorporate the insights many millions of state taxpayer dollars and information of hundreds of thou- go straight to the bank accounts of foot- sands of nonprofessionals into their own ball coaches and assistant football coaches labors. One could call these unpaid vol- at the state’s public universities. unteers “ordinary citizens,” but that is

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Reluctant not necessarily accurate. Sometimes they nized. The inside-the-Beltway and beyond- Stewards: are engaged because they have time to the-Beltway advocacy groups that have Journalism in a examine bits of publicly available data outdone the federal government itself in Democratic and contribute their insight to masses of making federal databases more search- Society material that would overwhelm any news able and accessible also belong in the organization if their own staffers had to ongoing reformation of a journalistic take it all upon themselves. In other situ- self-image. Journalism has never been ations, it is not untutored eyes that are able to draw sharp boundaries around being enlisted but speci½c and distinctive itself to keep insiders and outsiders neat- backgrounds and skills; that is the novel- ly delineated, nor should it. But it is one ty of the Public Insight Network. Citizen thing not to put up fences and another to journalism, or “user-generated content,” invite the new neighbors over for coffee. in some respects competes with professional journalism, but at the same time it Could the media do better in serving serves as an enormously productive new democratic ends? Yes, of course. But this resource that can be part of a collabora- is only in part because they fall short of tion with full-time, paid professional their ideals or fail to accept the responsi- journalists. For some journalists, the sur- bilities of stewardship; it is also because veillance of their work by audiences who journalism’s common understandings of voice their opinions is stunning and democratic ideals fall short themselves. A important. “I have 1.4 million fact check- better journalism might be possible if ers,” writes blogger Andrew Sullivan. journalists had a more sophisticated “Within seconds if I get the spelling sense of what it means to serve demo- wrong of some Latin word I will get three cratic ends. It is more than providing cit- emails . . . That relationship, I think, is izens with the information they need to why I believe that online journalism make sound decisions in the voting blogging contains within it a revival of booth. That is one key feature of what citizen journalism in a way that can bring journalism should provide, but it is only truth back to a discourse.”34 one part; and this information-centered Accepting the Legitimacy of Non-Journal- model foreshortens the obligations of ism Accountability Organizations. The pres- journalism with respect to citizenship. ent moment seems to call on journalism Journalism can serve democracy by pro- and its af½liated organizations–includ- viding political information to help inform ing journalism schools and journalism voters before they head to the polls, but prizes–to accept into the circle of news- journalism’s role in serving democracy reporting organizations other informa- extends beyond this. It can also offer an tion-gathering methods and opinion state- understanding of the democratic process ments about public life directed to broad that might help educate people about publics. By acknowledging the work of what democracy entails and what reason- other accountability organizations, jour- ably can be expected of it (for instance, nalists can help make democracy work as an appreciation of the value of compro- part of their professional world. It is a mise or an understanding of the gaps very good thing that Pulitzer Prizes have between rhetoric, legislation, and imple- beeen awarded to online news organiza- mentation); it can display compelling tions. It might be good if the expert portraits of persons, groups, and prob- reporting of an advocacy organization lems in society that are not on the current like Human Rights Watch were also recog- political agenda at all; it can make avail-

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able forums for public discussion; it can elites who “know best” work to educate Michael provide analysis, context, and interpreta- the untutored masses. Without idealiz- Schudson tion for understanding events of the day; ing either the general public or the logic and, yes, it can offer partisan frameworks of the marketplace, sometimes the aggre- for interpreting news in a way designed gated desires and interests of millions to stimulate and mobilize people for prove a better guide to what matters than speci½c political objectives.35 the views of the professionals. Widely shared views of good journal- I do not mean to argue that the press ism typically tell us that the press should that stewards least stewards best. How- cover issues in campaigns and not devote ever, I think that the news media have so much attention to the “horse race” grown as institutional stewards of demo- aspects of elections–but that may be the cratic citizenship by adapting: they were wrong approach. The horse race is part of once organizations of elites speaking to what excites people about politics and elites, and then became for a long time therefore has the potential to intrigue political parties speaking through the them, later, in the “issues.” Prevailing newspapers to their own troops, and then views further suggest that good journal- emerged in an original blend of commer- ism seeks in-depth analysis rather than cial organization and professional pride. quick coverage of every last accident, And now, when the leading institutions scandal, and mishap. This may be wrong, of professional news-gathering are buf- too; maybe “pretty good” analysis “quick- feted by gale-force winds in every direc- ly,” as Dean of the Columbia Journalism tion, and when “professionalism” itself is School Nicholas Lemann puts it, is as under scrutiny, journalism is nowhere important, if not more. A corollary is that close to a clearly articulated understand- long-form journalism is better than ing of its plan and purpose in democracy. short-form, but even this may be an And that, we need to understand, may be error: part of the progress of journalism exactly right for us. It gives play to jour- over the past century is the greater skill of nalism. It offers running room for new journalists in simpli½cation–“data visu- ideas and projects–woefully undercapi- alization,” if you will–and taking on the talized as many of them are–to ½nd audi- burden of interpretation and analysis in a ences, to impassion young (and older) quick, rather than studied, way. It may journalists, and to teach the grand also be that the shift we have witnessed in thinkers of public life that there just recent decades away from covering gov- might be a few new things under the sun. ernment itself does more to foster features of good citizenship than a preoccu- pation with government. And it provides an opening for social-empathy reporting that informs us about some neighbor or group of neighbors, often suffering visi- bly or silently from some personal or social or political ill fortune, that we would not know about otherwise.36 Finally, it may even be that efforts to cater to the marketplace sometimes serve the public good better than efforts to fashion news as a type of pedagogy in which

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Reluctant endnotes Stewards: 1 Journalism Lynn Povich, The Good Girls Revolt: How the Women of Newsweek Sued Their Bosses and Changed in a the Workplace (New York: Public Affairs, 2012). Democratic 2 Society A survey comparing German, Swedish, Italian, British, and American journalists found that Americans af½rm norms of objectivity, fairness, and neutrality more than any of their Euro- pean counterparts. At the time the study was conducted in the early 1990s, only a sixth of American journalists whose primary task was reporting or editing also wrote commentary, but half of Italian and British reporters and editors, and more than 60 percent of German, did both. See Wolfgang Donsbach, “Lapdogs, Watchdogs and Junkyard Dogs,” Media Stud- ies Journal 9 (Fall 1995): 17–30; and Wolfgang Donsbach and Bettina Klett, “Subjective Objectivity: How Journalists in Four Countries De½ne a Key Term of Their Profession,” Gazette 51 (1993): 53–83. 3 Susan E. Tifft and Alex S. Jones, The Trust (Boston: Little, Brown, 1999), 311–315. There are different versions of this story. Max Frankel recalls that the news story was “toned down” and “moved down the page” by order of publisher Orvil Dryfoos; that the headline was reduced to a single column; and that reference to the cia and the anticipated time of the attack was omitted. John Stacks, in his biography of James Reston, writes that Dryfoos and Turner Catledge called Reston, then the Washington, D.C., bureau chief, who went to see cia director Allen Dulles. Dulles told him not to publish–but if they did go ahead, to omit mention of the cia. See Max Frankel, The Times of My Life and My Life at the Times (New York: Random House, 1999), 209; and John F. Stacks, Scotty: James B. Reston and the Rise and Fall of American Journalism (Boston: Little, Brown, 2003), 192. 4 See Bob Woodward, Veil: The Secret Wars of the CIA, 1981–1987 (New York: Pocket Books, 1988), 516–535. 5 Marcus Brauchli, Third Annual Richard S. Salant Lecture, Joan Shorenstein Center on the Press, Politics and Public Policy, Kennedy School, Harvard University, Cambridge, Massa- chusetts, 2010, 12. 6 Daniel Hallin and Paolo Mancini, Comparing Media Systems (Cambridge: Cambridge University Press, 2004), 234. 7 Rachel Smolkin, “The Women,” American Journalism Review (December–January 2004), http://www.ajr.org/article.asp?id=3507 (accessed December 22, 2011). 8 Woodrow Wilson, “An Address: Nature of Democracy in the United States,” delivered before the Owl Club, Hartford, Connecticut, May 17, 1889, in The Papers of Woodrow Wilson, vol. 6, ed. Arthur S. Link (Princeton, N.J.: Princeton University Press, 1969), 226. 9 Donald Matheson, “The Birth of News Discourse: Changes in News Language in British Newspapers, 1880–1930,” Media, Culture and Society 22 (2000): 559. 10 Ibid., 564. 11 Marcel Broersma, “Visual Strategies: Dutch Newspaper Design Between Text and Image, 1900–2000,” in Form and Style in Journalism, ed. Marcel Broersma (Leuven, The Nether- lands: Peeters, 2007), 187. 12 The professionalization of journalism in this era is discussed in Michael Schudson, Discovering the News (New York: Basic Books, 1978) and in several subsequent essays in Michael Schudson, The Power of News (Cambridge, Mass.: Harvard University Press, 1995) concerning the changing patterns of reporting the president’s annual State of the Union message and the development of interviewing as the key tool of journalistic work. The international spread of these practices is documented in Svennik Hoyer and Horst Pottker, Diffusion of the News Paradigm, 1850–2000 (Gothenburg, Sweden: nordicom, 2005). A recent review of the literature on journalism and professionalism is Michael Schudson and Chris Anderson, “Objectivity, Pro- fessionalism, and Truth Seeking in Journalism,” in The Handbook of Journalism Studies, ed. Karin Wahl-Jorgensen and Thomas Hanitzsch (New York: Routledge, 2009), 88–101.

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13 See Harrison E. Salisbury, A Journey for Our Times (New York: Harper & Row, 1983), 249, 348. Michael Schudson 14 Andrew Sullivan, Twenty-Second Annual Theodore H. White Lecture, Joan Shorenstein Center on the Press, Politics and Public Policy, Kennedy School, Harvard University, Cam- bridge, Massachusetts, November 17, 2011, 26. 15 Reportedly, there were just over three million golfers when Eisenhower became president in 1953; that number had doubled by the time he left of½ce in 1961. It would be dif½cult to attribute all of this growth to Eisenhower, but his many hours on the golf course–visible, much discussed, and much lampooned–are considered influential. The World Golf Hall of Fame elected Eisenhower to its membership in 2009. See http://www.pgatour.com/2009/ r/06/26/wghof_eisenhower/index.html (accessed December 19, 2011). 16 Barry Meier, “Fly-Fishing Companies are Hip-Deep in Pro½ts,” The New York Times, Sep- tember 6, 1993, 17. 17 Newsweek, July 29, 1985, 17, 20. All of this applies to the president’s spouse, too. In the week after Betty Ford had a mastectomy in 1974 (soon after Gerald Ford succeeded Richard Nixon as president), breast cancer detection centers around the country were swamped with requests for screenings. Jane E. Brody, “Inquiries Soaring on Breast Cancer; Progress Made,” The New York Times, October 6, 1974. 18 Robert Hughes, Culture of Complaint: The Fraying of America (New York: Oxford University Press, 1993), 46. 19 David Bromwich, Politics By Other Means: Higher Education and Group Thinking (New Haven, Conn.: Yale University Press, 1992), 225. 20 These terms come from Steven Brint, In an Age of Experts: The Changing Role of Professionals in Politics and Public Life (Princeton, N.J.: Princeton University Press, 1994), 8–9. 21 There is now a seemingly endless array of discussions of the future of news, from journalists, media reformers, and academics. A useful compendium of thirty-two such pieces is Robert W. McChesney and Victor Pickard, eds., Will the Last Reporter Please Turn Out the Lights: The Collapse of Journalism and What Can Be Done to Fix It (New York: New Press, 2011). 22 My history of the usage of the terms watchdog journalism and accountability journalism is based on a quick glance at the Google Ngram Viewer. The Viewer is a tool that tracks the number of times a word or phrase appears in books in Google’s digital collection that were published in a given year. 23 Leonard Downie, Jr., and Robert G. Kaiser, The News About the News: American Journalism in Peril (New York: Alfred A. Knopf, 2002), 7. 24 Ibid., 108. 25 Alex S. Jones, Losing the News: The Future of the News that Feeds Democracy (New York: Oxford University Press, 2009), 2–3. 26 Paul Starr, “Goodbye to the Age of Newspapers (Hello to a New Era of Corruption): Why American Politics and Society Are About to Be Changed for the Worse,” The New Republic, March 4, 2009, reprinted in McChesney and Pickard, Will the Last Reporter Please Turn Out the Lights, 18–37. 27 Michael Schudson, Why Democracies Need an Unlovable Press (Cambridge: Polity, 2008), 11–26. Of course, there are other sensible ways to categorize the various democratic functions of the press. Journalist Jonathan Stray, taking off from my list, has arrived at his own list of three functions: information, empathy, and collective action. See his thoughtful blog entry “What Should the Digital Public Sphere Do?” November 29, 2011, http://jonathan stray.com/what-should-the-digital-public-sphere-do. 28 Ronald N. Jacobs and Eleanor Townsley, The Space of Opinion: Media Intellectuals and the Pub- lic Sphere (New York: Oxford University Press, 2011), 69, 71. 29 Ibid., 173, 234.

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Reluctant 30 Richard Hofstadter, The Paranoid Style in American Politics (New York: Knopf, 1965), 4. Stewards: 31 Journalism D. Lucas Graves, “Deciding What’s True: Fact-Checking Journalism and the New Ecology in a of News,” Ph.D. dissertation, Columbia University (2012), 213. While studying fact-check- Democratic ing organizations for his dissertation, Graves (now teaching at the University of Wisconsin- Society Madison) helped organize, with Tom Glaisyer, a conference about fact-checking at the New America Foundation that I attended on December 14, 2011. 32 Charles Lewis, Brittney Butts, and Kate Musselwhite, “A Second Look: The New Journalism Ecosystem,” Investigative Reporting Workshop, American University School of Communi- cation, November 30, 2011, http://investigativereportingworkshop.org/ilab/story/ second-look/ (accessed December 12, 2011). If we include Consumer Reports, its annual budget of $43 million and six hundred employees dwarfs all others. Consumer Reports is a no- frills investigative news organization with a strong focus, but it takes up such a distinctive and slim slice of accountability reporting that including it would distort the overall ½gures and trends. 33 Michael Oreskes, memo to Associated Press staff, December 13, 2011, reprinted in full in Michael Calderone, “ap Launches Strategy to Go Beyond Breaking News, Become More ‘Distinct,’” The Backstory blog, The Huf½ngton Post, December 13, 2011, http://www.huf½ng tonpost.com/2011/12/13/associated-press-ap-breaking-news-new-distinctiveness_n_ 1144911.html?ref=email_share (accessed December 15, 2011). This is not to accept that “The New Distinctiveness” is in fact new–even at the ap. See a similar discussion about the ap in Kevin Barnhurst and Diana Mutz, “American Journalism and the Decline of Event-Centered Reporting,” Journal of Communication 47 (4) (Autumn 1997). 34 Sullivan, Twenty-Second Annual Theodore H. White Lecture, 27. 35 I have developed this set of multiple goals for news in a democracy in “Six or Seven Things News Can Do for Democracy,” in Schudson, Why Democracies Need an Unlovable Press, 11–26. 36 Ibid., 17–20.

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The Argument Culture: Agonism & the Common Good

Deborah Tannen

Abstract: Agonism–taking a warlike stance in contexts that are not literally war–pervades our public and private discourse, leading us to approach issues and each other in an adversarial spirit. The resulting “argument culture” makes it more dif½cult to solve problems and is corrosive to the human spirit. While examples from the intertwined domains of politics and the press may seem beyond individuals’ power to change, the domain of private interactions–where equally destructive effects of the argument culture are felt–is one in which individuals have power to make quotidian yet revolutionary contributions to the common good.

When I was writing my book The Argument Culture in the late 1990s, I felt a sense of urgency because I believed that the moment for its message–that our public discourse had become destructively adversarial–might have peaked. How ironic that concern now seems. Today, “the argument culture” sounds like an extreme understatement; “the combat culture” would be more apt. I would be tempted to adopt that term were I not hesitant to become part of a problem that my book addressed: the ubiq- uity of war metaphors and their role in contributing to a widespread agonistic spirit. The phrase “combat DEBORAH TANNEN is University culture,” though appealing for its crisp consonants Professor in the Department of and satisfying alliteration, would be a verbal ana- Linguistics at Georgetown Univer- sity. Her recent books include You logue to the visual metaphor on the cover of the Were Always Mom’s Favorite!: Sisters ½rst edition of The Argument Culture, a cover to which in Conversation Throughout Their Lives I objected in vain: against a stark white background (2009), Talking Voices: Repetition, was a photograph of a menacing dark gray bomb Dialogue, and Imagery in Conversa- with an ominously short fuse. tional Discourse (2nd ed., 2007), and Though the threat represented by the bomb was You’re Wearing THAT?: Understand- real, I felt that the violent visual metaphor contrib- ing Mothers and Daughters in Conver- sation (2006). She is currently a uted to the destructive effects of conceptualizing fellow at the Center for Advanced everything as a metaphorical battle. That risk is even Study in the Behavioral Sciences more real today, as I argue in this essay (but argue at Stanford University. in the sense of making an argument, not of having

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Agonism & one). The aspect of the argument culture exploiting their husbands, failing to ap- the that I focus on here is captured in a recent preciate his sacri½ces, generally revealing Common Good New Yorker cartoon. A hunter, rifle slung the evil inherent in their sex. over his shoulder, sits at a bar beside a deer. The TV show guest who had aimed his The affable hunter says to the doubtful- invective against women was like the looking deer, “If we should meet in the hunter in the cartoon: he was taking part woods and anything happens, remember in a warlike ritual, shooting at a target it’s just hunting.” The cartoon reminded against which he felt no personal animos- me of an experience I had on a San Fran- ity. He was just participating in a verbal cisco television talk show following the game that the show’s producers believed publication of my book You Just Don’t Under- would increase viewership. (The producer stand: Women and Men in Conversation. In said as much when I complained, after- the green room, where guests gathered ward, about the destructiveness of turning before the show, an oddly dressed young the show into a ½ght; she said that the wis- man greeted me pleasantly. After telling dom of her choice would be revealed when me that he had read and admired my book, the ratings became known.) But just as he said, “When I get out there, I’m going hunting has dire consequences for the to attack you. Don’t take it personally. deer, so the ritual verbal attack staged by That’s why they invited me on the show, the producers of this show had dire con- so that’s what I’m going to do.” sequences for the real-life women who The show began like many others I was had agreed to be guests. Furthermore– on at the time: I was seated facing a small and this is the point I want to emphasize studio audience, along with this young man –it had dire consequences for the mem- and several women guests who had vol- bers of the studio audience who followed unteered to come on the show to talk about the belligerent guest’s lead. Although they frustrations they encountered in commu- were the perpetrators and not the victims nicating with their husbands. But once the of the verbal attacks on the women guests, show began, it proceeded very differently. they, too, were losing out. They were los- After I had made a few opening remarks ing out on the sense of community that about women’s and men’s ways of speak- was created on other shows, when studio ing, this young man leaned forward in his audience members responded to the ex- chair, thrust his arms out before him, and periences described by women or couples began to spew venomous invective. He by saying that they had had similar expe- directed his diatribe at me only briefly, riences of their own. Hearing that others’ then moved on to an apparently rehearsed experiences match one’s own can provide litany of accusations against women in comfort or reassurance that one is not general. What stunned me was the effect alone. In contrast, seeing those with sim- this display had on the studio audience. ilar frustrations being vili½ed reinforces Whereas audience members at other a sense of shame and reluctance to voice shows on which I had appeared matched one’s concerns. It leaves everyone feeling guests’ accounts of frustrations with sim- even more alone. Moreover, audience ilar anecdotes of their own, on this show members, both in the studio and at home, (and no other), when invited to join the were losing out on the opportunity to conversation, members of the audience learn ways to solve those problems, as the turned vicious toward the unsuspecting entertainment-motivated metaphorical women guests, accusing them of the battle replaced any other possible form offenses they had just heard described: the television show could have taken.

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That is what is doubly destructive about battle lines are drawn as presidential can- Deborah the argument culture: it makes it more didates face off in the conflict zone known Tannen dif½cult to solve the problems facing our as the campaign trail.” “Battle lines,” “face society, and it is corrosive to the human off,” and “conflict zone” seem self-evident- spirit. By creating an atmosphere of ani- ly appropriate ways to frame presidential mosity, it makes individuals more likely campaigns; indeed, the word campaign to turn on each other, so that everyone itself derives from a military action. The feels more vulnerable and more isolated. next plaque goes on to say, “This exhibit And that is why the argument culture is examines the tactics used by politicians destructive to the common good. –and illuminated by the press–to put democracy to the test and a candidate Key to my notion of the argument cul- in the White House.” This formulation ture is the term agonism, which I have bor- casts the press as a mere observer–illu- rowed from the late Jesuit scholar Walter minating politicians’ tactics–whereas in Ong. From the Latin term for war, agon, fact the role played by the press is far more agonism is taking a warlike stance to active. This is acknowledged in a later accomplish something that is not literally plaque, which also makes use of war meta- a war. Agonism underlies our conviction phors: “In the 20th century, new rules of that opposition leads to truth, so the best engagement were drawn up between can- way to discuss an idea is to have propo- didates and reporters. . . .The battle for nents of two opposing sides face off in a control of the story and image was on.” debate; the best way to cover news is to There is ample evidence in coverage of ½nd spokespeople for the most extreme, any electoral season that the press does polarized views and present them as “both not just observe and report but also cre- sides”; the best way to settle disputes is ates and reinforces the agonistic frame- litigation that pits one party against the work through which we view events. Any other, with a winner-take-all result; the day’s news contains a multitude of exam- best way to frame an article is an attack; ples; here are just a few. A typical talk and the best way to show you are really show host begins a discussion by saying thinking is to criticize. that President Obama “came out swing- Agonism surrounds us in the form of ing” on the payroll tax cut. A New York Times ubiquitous military metaphors: the war headline reads, “The Calculations that Led on poverty, war on cancer, war on drugs, Romney to the Warpath.” And visual meta- war on terror, and so on. War metaphors phors reinforce verbal ones. When New come so naturally, and are so catchy, that York magazine featured a story entitled we barely notice them. A survey of recent “2012: The Bloodiest Campaign Ever,” reality TV shows reveals those entitled the cover displayed a photo of Romney’s Weed Wars, Whale Wars, Shipping Wars, and Obama’s faces literally bloodied, Storage Wars, and Parking Wars–and these black and blue, and plastered with band- are only a few of innumerable examples. aids and sutures. It would be as telling, I War metaphors are also everywhere in cov- think, to show the American people sim- erage of political campaigns. For example, ilarly bruised and bloodied, because that an exhibit at the Newseum in Washington, is the result of the escalating agonism in D.C., traces the history of press coverage our public discourse. of presidential elections. It begins with a Why, you might wonder, be concerned plaque saying: “Every four years, Ameri- about metaphors? They are just words– cans elect a president. And every four years, or, in the case of visual metaphors, just

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Agonism & pictures. But metaphors seep into our had been praised for his swift action in the thinking and shape our responses. the latest accusation against Sandusky, had Common Good I am not against debate, opposition, con- been state attorney general when investi- troversy, or disagreement. Quite the oppo- gation of complaints against Sandusky had site: I agree with the Yugoslavian-born been dragged out over three years, during poet Charles Simic, who wrote, “There are which time the coach had been allowed to moments in life when true invective is continue in his position and his criminal called for, when it becomes an absolute behavior. In that spirit, the essay called a necessity, out of a deep sense of justice, to New York Times article praising the gover- denounce, mock, vituperate, lash out, in the nor a “shameless puff piece.” strongest possible language.” What I am “Puff piece” is one of several expres- questioning is agonism–the automatic, sions that are regularly used–and feared– ritualized, knee-jerk use of opposition by journalists to mock and berate articles which has become pervasive in our lives. that praise without also attacking. In In The Argument Culture, I describe agonism another Newsweek article, Peggy Noonan in politics, the press, law, and education. repeatedly cited her editor’s insistence that Here I address only politics and journalism, her article must attack its subject, thus and the ways that they are intertwined. ful½lling that requirement while pretend- ing not to cave in to editorial pressure. Agonism takes two forms in the press. This provides a revealing glimpse into the The ½rst is the more obvious: an ethic of ethic of aggression that is common among aggression that places the highest value on journalists. Noonan’s essay was about the attack. A second and perhaps less obvious “comeback” of ½lm producer Harvey form of agonism is the conviction that Weinstein after a ½lm he had produced, opposition leads to truth; this conviction The Artist, won a slew of prizes and domi- accounts for the widespread belief that nated the 2012 Academy Awards. Noonan “balance” is the primary goal of coverage begins by saying that Weinstein’s reputa- –indeed, that the journalistic job is done tion had previously been for “coarse, if and only if “both sides” of an issue have threatening” and “thug”-like behavior, but been presented. that he now seems to have reformed. She Because of the ethic of aggression, an then steps outside her narrative to raise article that attacks needs no justi½cation, the puff piece specter: “Here I must note while praise or support is regarded as sus- that my editor fears I’m getting rolled. He pect. A November 2011 Newsweek article wonders if I shouldn’t include the testi- about the Penn State scandal used the mony of an old Weinstein associate who word shameless–not to describe the behav- doesn’t quite buy the story of Harvey’s ior of Jerry Sandusky, the assistant coach permanent rebirth.” She then quotes that who had sexually molested children over associate as saying, “The day after the many years, nor to describe the behavior of Oscars he will fall into his old bad habits.” the university and law enforcement of½- Noonan thus does exactly what she says cials who had failed to punish Sandusky or her editor wanted her to do, to avoid the limit his access to underage boys despite accusation of “getting rolled” (itself a having been informed of his behavior. ½ght metaphor). No; shameless was used to describe an arti- Later in the article, Noonan writes: cle that had cast the governor of Pennsyl- “Here another request from my pest of an vania in a favorable light. The Newsweek editor: there are rumors in Hollywood essay pointed out that the governor, who that Weinstein has been throwing his

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weight around behind the scenes to be Bobby Ray Inman’s withdrawal of his Deborah given the Irving G. Thalberg Award. ‘He’s nomination stands out because his per- Tannen using muscle to get an award for gentle- sonal experience dramatized that the nom- ness! Shouldn’t we mention this?’ No, I ination process had become far more say, leave it alone. He sweetly pronounces agonistic than it had been in the past. His it won’t make the ½nal edit.” Noonan thus case, however, highlights one surely un- mentions what she says she argued should intended effect of the press’s ethic of be left alone, including what she has just aggression: fewer and fewer people are said would not make the ½nal edit. In willing to make the personal sacri½ces addition to being an impressive literary necessary to engage in public service. As sleight of hand, her inclusion of her edi- political scientist Norman Ornstein has tor’s injunctions illustrates journalists’ fear pointed out, public service has always of the puff piece accusation. required ½nancial sacri½ce (one’s income It is no surprise that Noonan puts the usually goes down) and personal sacri½ce agonistic ethic in the mouth of her editor. (whether one’s family moves to Wash- Like the producer of the television talk ington or stays in a distant home state), show who assumed that the arbiter of suc- but the sacri½ces were counterbalanced cess would be the show’s ratings, news- by the prestige that accrued to holding paper editors must be concerned with read- public of½ce. Now, increasingly, that pres- ership. But just as raising ratings by turning tige is signi½cantly reduced because the a television show into an attack on women continual attacks on public ½gures have has consequences, so does assuming that resulted in widespread disdain for those journalism requires attack on its subjects. in public life. Furthermore, individuals Consider the case of Bobby Ray Inman, who enter public life now risk the de- who in 1994 withdrew as a nominee for struction of their reputations and their secretary of defense. In explaining his de- lives because of the widespread conviction cision, Inman said that although he had among journalists that their jobs require previously served in both Republican and them to write “bad stories.” Democratic administrations, nothing had Political commentator Larry Sabato has prepared him for the attacks he was now described the evolution of journalism this experiencing, the effects of which he felt way: the press used to be like a lapdog, were not worth the privilege of serving failing to criticize those in power when again. He quoted an editor who had told criticism was warranted. Their role should him, “Bobby, you’ve just got to get thicker be that of a watchdog, alert to malfeasance skin. We have to write a bad story about when it rears its head. Now, however, the you every day. That’s our job.” The state- press is like an attack dog. And this is ment chillingly encapsulates the agonistic another way that agonism results in less nature of the attack culture in the press. The rather than more genuine opposition: a daily “bad stories” were not sparked by spe- dog that is busy attacking is not watching. ci½c wrongdoing that journalists uncovered In other words, the result is a rhetorical but were triggered automatically by a per- boy who cried wolf: because we have scan- ceived requirement. Also telling is the jour- dal inflation, true scandals are more likely nalist’s advice that Inman had to get thicker to be overlooked. If you hear a ½ght outside skin. In that regard, the longtime Washing- your window, you rush to open the window ton Post editorial page editor Meg Green- to see what is going on. But if there is a ½eld once wrote, “Thin skin is the only kind ½ght outside your window every night, you of skin human beings come with.” shut the window and try to block them out.

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Agonism & The second form of agonism that char- papers. Among his comments about the the acterizes the press is the “everything has limits of print journalism, he said, “There’s Common Good two sides” ethic. This sounds at ½rst emi- this construct, equal credence to what you nently reasonable. The problem, though, think the truth is and what’s probably is that most issues have more than two false, but they both get some stature.” sides–and some have only one. Religion The “two sides” metaphor also creates scholar and historian Deborah Lipstadt the appearance of moral equivalence, such experienced the fatuousness and destruc- as the case where the Unabomber’s de- tiveness of this conviction when her book ranged manifesto was published side by Denying the Holocaust was published. The side with the writings of a university pro- producers of one television talk show fessor who was maimed by a bomb he sent. invited her on, but only if she agreed to Indeed, so immutable is the assumption appear alongside Holocaust deniers. When that every story must have two sides that Lipstadt refused, saying she did not want some journalists ½nd their stories rejected to provide a platform for the propagation if they cannot ½nd an opposing side to of the very lies her book condemned, the provide “balance.” This parade of agonism producers challenged, “Don’t you think has many unfortunate effects on mem- viewers have a right to hear the other side?” bers of society and on the common good. Among the tactics deniers successfully Readers often throw up their hands, con- employed was taking out ads in college cluding that it is impossible to know where newspapers. The editor of one such news- the truth lies. It becomes dif½cult for pol- paper was explicit in explaining why he icy to be informed by research, because accepted the deniers’ ad: “There are two ½ndings seem to be questioned as quickly sides to every issue and both have a place as they are reported. Perhaps most destruc- on the pages of any open-minded paper’s tively, whereas democracy requires an editorial page.” The ability to masquerade informed electorate, the argument culture as the other side in a debate has resulted creates the opposite, as more and more in Holocaust denial having more success people are so alienated by the agonistic in the United States than in any other rhetoric of political coverage that they country. cease to listen to it. Indeed, Dr. Andrew This is just one of many problems that Weil recommends that people go on a result from our overreliance on the “two “news fast” to preserve their equilibrium sides” metaphor. Another is that it creates and mental health. the impression that both sides are equally The agonism in politics that I described valid: for example, when one side, such in the late 1990s has now reached unfore- as scientists providing evidence of global seen heights. In 1996, fourteen senators climate change, is “balanced” by a tiny left Congress voluntarily, an unprece- minority of scientists (typically funded by dented event that Norman Ornstein doc- the fossil fuel industry) who deny that umented in his book Lessons and Legacies: claim. A recent interview with the Detroit Farewell Addresses from the Senate, a collec- TV reporter Charlie LeDuff highlighted tion of essays by thirteen of the departing how the commitment to providing “two senators. Many named the increasing sides” can give credence to false informa- agonism of the Senate as their reason for tion. On the npr show Fresh Air, LeDuff, leaving. Senator Olympia Snowe of Maine, who had a successful career with both who had been one of the few remaining The Detroit News and The New York Times, centrist Republicans, has recently left Con- was asked why he gave up writing for news- gress. In explaining her reasons for leav-

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ing, she decried the destructive extrem- intruded on my train ride was the verbal Deborah ism that has made it impossible to craft attacker’s. And the boy’s offense was sim- Tannen legislation, because every vote has become ply the volume of his conversation, where- “a take-it-or-leave-it showdown intended as his attacker was ½lling the train car not to embarrass the opposition.” In other only with the volume of his diatribe but words, whereas political campaigns once with its venom. The incident has stayed were staged only in the run-up to elec- with me because I blamed myself–at the tions, we now have campaign tactics time and ever since–for not speaking up year-round, and they pervade the daily in the boy’s defense. In asking myself why work of governance. The rise of the ½li- I did not calmly point out that the man buster is often cited as evidence. In the could have asked the boy to please keep his 1950s, the use of this tactic averaged one per voice down without egregiously upping the Congress. In the 110th Congress (2007– ante of disruptively loud rhetoric, I real- 2008), it was employed ½fty-two times. ized that I feared that the angry shouter A supermajority is now required to pass (the word’s similarity to shooter is not, I almost any signi½cant legislation. think, irrelevant) would turn his wrath on me. And that is another example of how These aspects of the argument culture the argument culture makes everyone feel are well known and frequently observed. vulnerable. As I said at the start, the aspect I would Many readers will regard with a sense like to point out here is the way this in- of despair the rise of adversativeness in creasing agonism is affecting our personal politics and the press, feeling that there is lives, perhaps the most deeply experi- nothing they can do to change it. But that enced aspect of the common good. I sense of helplessness need not apply to recently had occasion to witness an exam- the rise of agonism in our personal lives. ple of this while a passenger on the Acela, We have daily opportunities to change the the high-speed train that connects Wash- spirit with which we approach each other ington, D.C., and New York City. At one (a change suggested by the wording I just point during the ride, a man seated two chose, each other, in contrast to the alter- rows in front of me turned to a teenage native, others). To illustrate, I end with two boy seated behind him and began shout- examples of how individuals learned to ing angrily, berating the boy for talking too resist agonism in their daily lives. Both loudly on his cell phone. The boy seemed were mentioned at the memorial service of genuinely puzzled and asked meekly, a dear friend and colleague, Pete Becker, “What did I do?” This seemed to stoke the a scholar and professor whose Quaker shouter’s anger, as he railed, “You consider background infused his personal and yourself a man and you don’t know what professional life. you did?!” Two other passengers spoke up During Pete’s memorial service, his son to ratify the attack: “It bothered me, too,” Andrew rose to recall a brief conversation said a woman seated across the aisle from he had had with his father when he was in the boy. “That’s right,” joined a man seated his teens. Andy came home from school behind him. Like the studio audience mem- one day brimming with anger about a bers who echoed the misogynistic verbal “dumb rule” that the principal had an- attacks on the television show, these pas- nounced. After explaining his indignation, sengers were joining the chorus of attack. he told his father that he was going to I had not been bothered by the boy’s cell ½ght the rule. His father listened respect- phone conversation. The loud voice that fully to Andy’s account, then asked if it

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Agonism & would be hard to comply with the rule. Key to both these anecdotes is a shift- the Andy said that it wouldn’t, but he reiter- ing of alignment with regard to others: in Common Good ated what seemed to him the main point: place of an agonistic stance–seeing others the rule was dumb, so he was right to ½ght as “dumb” and therefore different from it. “If you do that,” his father said, “you’ll and opposed to oneself–this wise Quaker be right, but you’ll turn the principal into taught his young charges to see good in your adversary.” He went on to point out others rather than stupidity. He also that the principal might well be under taught them to try seeing the world from pressures that Andy did not know about, others’ perspectives. By pointing out that and that there would be nothing to gain the principal might be subject to pressures by turning him into an enemy when there unknown to students, and that under- was no need to do so. Recalling this brief graduate writers came up not only with conversation as an adult looking back, infelicities but also with insights, Pete Andy explained that by shifting his atten- taught his son and his teaching assistant tion from the rightness of his indignation to see others–those in authority as well as to the consequences of turning someone those in subordinate positions–as fun- into his enemy, his father had taught him damentally human. This subtle change of a perspective that remained a touchstone stance transforms the world from a place for the rest of his life. of hostility to a place of community, in Later in the memorial service a woman which we are connected to rather than rose to tell a story with a similar conclusion. separated from the many strangers we When she was a graduate student, she encounter daily. That is a change we all recounted, she had served as a teaching can aspire to–and one we can begin to assistant working with Pete. When the stu- enact. We have the power to resist taking dents turned in their ½rst set of papers, adversarial stances toward each other in Pete suggested that they meet to grade the our private interactions. And who knows, papers together. As they began the task, if enough of us resolve to do this, by a she would pick up a student’s paper and strange alchemy, it might begin to defuse read aloud something she found foolish (yes, metaphorical reference to the bomb or baseless, assuming that Pete would laugh on the cover of my book is intended) along with her. But he declined to join her some of the destructiveness of the argu- in mockery or contempt. Instead, he picked ment culture. In this way, we all can make up one after another student paper and quotidian yet revolutionary contributions read aloud sentences in order to praise to the common good. their insight, inviting her to join in with his respect and admiration. It was a lesson, she said, that made her a better teacher– and a better person.

author’s note Some of the material in this essay is drawn from Deborah Tannen, The Argument Culture: Moving from Debate to Dialogue (New York: Random House, 1998).

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Valuing Compromise for the Common Good

Amy Gutmann & Dennis Thompson

Abstract: Pursuing the common good in a pluralist democracy is not possible without making compromises. Yet the spirit of compromise is in short supply in contemporary American politics. The permanent campaign has made compromise more dif½cult to achieve, as the uncompromising mindset suitable for campaigning has come to dominate the task of governing. To begin to make compromise more feasible and the common good more attainable, we need to appreciate the distinctive value of compromise and recognize the misconceptions that stand in its way. A common mistake is to assume that compromise requires ½nding the common ground on which all can agree. That undermines more realistic efforts to seek classic compromises, in which each party gains by sacri½cing something valuable to the other, and together they serve the common good by improving upon the status quo. Institutional reforms are desirable, but they, too, cannot get off the ground without the support of leaders and citizens who learn how and when to adopt a compromising mindset.

Democratic politics should serve the common good, which we understand as the goal of “maintaining conditions and achieving objectives” that bene½t all members of society.1 The individual components of the common good–such as a robust economy or universal health care–are not necessarily shared by everyone. But the goal is to secure AMY GUTMANN , a Fellow of the these goods for all, and to maintain a democratic American Academy since 1997, is process that is valued by all. President of the University of Pennsylvania, where she is also Important as the common good is, it is less fre- the Christopher H. Browne Dis- quently invoked by politicians and pundits than is tinguished Professor of Political the common ground. Faced with the challenge of Science. bridging polarized partisan divides on pressing DENNIS THOMPSON, a Fellow issues such as tax reform, health care, and immi- of the American Academy since gration policy, American politicians regularly 1994, is the Alfred North White- claim to seek consensus on the common ground. head Professor of Political Philos- They in effect deny the need to reach compromises ophy and Professor of Public Policy that would require them to sacri½ce something at Harvard University. valuable to their opponents. (*See endnotes for complete contributor Consider this excerpt from a cbs 60 Minutes biographies.) interview with Representative John Boehner, who

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Valuing was then about to become Speaker of the By seeking consensus on these common Compro- House following the Republican success ground desires, politicians believe they mise for the in the 2010 congressional elections: can serve the common good without giv- Common ing up anything valuable to their political JOHN BOEHNER: It means working together. Good opponents. LESLEY STAHL: It also means compromising. Where common ground agreements can be found, they can in fact serve the [ . . . ] common good. But they are not the only– BOEHNER: I made clear I am not going to or even the most productive–way to pur- compromise on my principles, nor am I sue that goal. The classic compromise– going to compromise . . . the will of the where all sides gain on balance but also American people. sacri½ce something valuable to their opponents–is a more promising route to STAHL: And you’re saying, “I want com- the common good. This is especially the mon ground, but I’m not going to compro- case in a polarized political environment. mise.” I don’t understand that. I really don’t. Common ground agreements are mor- BOEHNER: When you say the word “com- ally and politically attractive because promise”. . . a lot of Americans look up and they have a principled coherence from all go, “Uh-oh, they’re going to sell me out.” perspectives. They resemble what phi - losophers call an overlapping consensus. [ . . . ] Citizens with fundamentally different STAHL: . . . you did compromise [to get all moral views may agree on relevant prin- the Bush tax cuts made permanent]? ciples, though for distinct reasons drawn from conflicting perspectives.5 Analo- BOEHNER: . . . we found common ground. gously, legislators set aside conflicting STAHL: Why won’t you say–you’re afraid parts of their perspectives in order to of the word. reach a shared agreement. Opposing legislators may disagree on the underlying BOEHNER: I reject the word.2 principles of a common ground deal, but Consensus on common ground is a lofty they need not make a principled conces- goal. That’s one reason why politicians sion in the content of their agreement. never tire of claiming that they are seeking Consensus on common ground is de - it. “Leaders [are successful] not by at- sirable if it can be found. But the common tacking their opposition but by ½nding ground is more barren, its potential for common ground where principles are yielding meaningful legislation more shared,” former Governor Mitt Romney limited, than the inspiring rhetoric in its declared during the Republican primary.3 favor might suggest. Yes, a consensus exists After the president’s jobs bill failed in among legislators and citizens that the October 2011, Senate Majority Leader tax system needs to be revised, and that Harry Reid still insisted: “we’ll be bring- the health care system needs to be re- ing up individual components of this legis- formed. But this general consensus on lation to do our utmost to ½nd common- the need for reform does not translate sense, common-ground, job-creating mea- into a common ground agreement on the sures that the Republicans will support.”4 particular provisions of either a tax or a All citizens want a better life for them- health care reform bill. To produce reform selves and their children; all want security, legislation, speci½c terms have to be decent health care, and a good education. negotiated, and as is often the case at this

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stage, the common ground turns into mon. A classic compromise differs in that Amy fractured terrain. it expresses an underlying and continu- Gutmann & Dennis Another problem with common ground ing conflict of values. Disagreements Thompson agreements is that trying to ½nd the usu- between the parties are embodied by the ally small points of policy convergence is compromise. The values internal to the likely to prove less effective in addressing compromise are not all shared. major issues than combining big ideas Classic compromises serve the com- from the partisans. Describing how they mon good not only by improving on the managed to gather a majority on their status quo from the agreeing parties’ par- politically diverse commission on ½scal ticular perspectives, but also by con- responsibility, cochairs Alan Simpson tributing to a robust democratic process. and Erskine Bowles emphasized the value The goods in a classic compromise are not of “shared sacri½ce” that comes from all held in common; yet all parties bene½t “bold and big” compromises. “The more from the compromise and value the pro- comprehensive we made [our proposal], cess by which it is reached. The agree- the easier our job became,” they said. ment itself demands the sacri½ce of some “The tougher our proposal, the more goods that each party believes should be, people came aboard. Commission mem- but are not, shared. bers were willing to take on their sacred In the polarized politics of our time, the cows and ½ght special interests–but only prospects for consensual agreements based if they saw others doing the same and if solely on common ground or containing what they were voting for solved the only common goods are increasingly country’s problems.”6 bleak. Exhortations to seek such agreements and exaltations of their value are The most serious problem with the pre- misleadingly utopian at best. They divert occupation with the common ground is effort from the pursuit of classic compro- that it undermines the pursuit of the mises and make them look even more more challenging but more promising like confused surrenders. As we will ex - form of agreement: the classic compro- plain, compromises by their nature are mise. In a classic compromise, all sides vulnerable to charges of confusion and sacri½ce something in order to improve surrender. The unfavorable comparisons on the status quo from their perspective. with common ground agreements only The sacri½ces accepted in a classic com- compound this vulnerability. promise are at least partly determined by Yet the classic compromise today offers the opposing side’s will, and they there- the best hope for political progress. The fore require parties not merely to get less major issues in current legislative debates than they want, but also, due to their op - represent deep divisions on fundamental ponents, to get less than they think they questions about the role of government, deserve. the nature of justice, and the liberties, Classic compromises differ from com- rights, and responsibilities of citizens. The mon ground and other consensual agree- broad issues on which many Americans ments that are based on an underlying generally favor legislative compromise– convergence of values (the common taxation, government spending, health ground). These agreements set aside the care, cost controls, job creation, immi- root disagreement in favor of a consensus gration–are unlikely to be addressed at on shared values expressed by the agree- all if legislators hold out for common ment itself. The values are held in com- ground.

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Valuing So if compromise is to be achieved on media and money that accompanies it– Compro- these major issues, we must value agree- encourage a mindset among politicians mise for the ments that are less morally coherent and that rejects compromise. Common less politically appealing than those that The resistance to democratic compro- Good rest on common ground or an overlap- mise is anchored in an uncompromising ping consensus. The Tax Reform Act of mindset, a cluster of attitudes and argu- 1986–the most comprehensive tax-reform ments that encourage principled tenacity legislation in modern American history, (standing on principle) and mutual mis- passed with bipartisan support under the trust (suspecting opponents). This mind- Reagan presidency–was a classic com- set is conducive to campaigning but promise. It combined some measures inimical to governing. Resistance to (eliminating loopholes that favor the democratic compromise can be kept in wealthy) that reflected liberal principles check by a contrary cluster of attitudes and others (lowering the marginal rates and arguments–a compromising mind- on top incomes) that violated those prin- set–that displays principled prudence ciples. The same measure also created a (adapting principles) and mutual respect conflict with conservative principles, but (valuing opponents). It is the mindset in reverse. The Affordable Care Act of better suited for governing be cause it 2010–the most comprehensive health care enables politicians to recognize and reform in recent American history–was embrace opportunities for desirable also a classic compromise. Though it was compromise. When enough politicians forged within a single party, the compro- adopt it enough of the time, the spirit of mise displayed conspicuous tensions– compromise prevails and the common be tween whether the reform should or good bene½ts. should not offer a public option, for The influence of campaigning is not example. necessarily greater than other factors Governing a democracy without com- that interfere with compromise. Com- promise is impossible. To restrict political promises are difficult for many reasons, agreements to common ground or com- including increased political polarization mon goods, especially in a polarized par- and the escalating influence of money in tisan environment, is to privilege the sta- democratic politics. But the uncompro- tus quo, even when all parties agree that mising mindset associated with cam- reform is needed. Why, then, is compro- paigning in particular deserves greater mise so hard when it is so necessary? attention than it has received. First of all, unlike ideological polarization, campaign- Much of the resistance to compromise ing is a desirable part of any democratic lies in another necessary part of democ- process. It becomes a problem only when racy: campaigning for political of½ce. In- it interferes with governing. Second, if creasingly, campaigning is intruding into compromise is to play its proper role in the governing, where it is often counterpro- democratic process, politicians and citi- ductive. The means of winning of½ce are zens need to understand not only the subverting the ends of governing once in relationship between partisan positions of½ce. It is only a slight exaggeration to and particular compromises, but also the say that in the United States “every day is attitudes and arguments that resist or election day in the permanent campaign.”7 support compromise in general. Finally, The effects of the continuous campaign– the uncompromising mindset reinforces along with the distorting influence of all the other obstacles to compromise.

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Sharp ideological differences, for exam- Of course, there are limits to this recur- Amy ple, would present less of an obstacle to ring enthusiasm for political compromise. Gutmann & Dennis compromise were they not compounded After the strong Republican comeback in Thompson by the continual pressures of campaign- the 2010 congressional midterm elec- ing that the uncompromising mindset tions, a majority of Americans–a large supports. Despite standing tenaciously majority of Republicans and a minority on the right and left wings of their par- of Democrats–said that they prefer ties, Senators Orrin Hatch and Ted political leaders who stick to their posi- Kennedy joined together to cosponsor tions without compromising.9 The favor- many signi½cant legislative initiatives, able attitude toward compromise erodes including measures to improve health care. when the political landscape shifts dramat- In an era characterized by the perma- ically, especially when insurgent groups nent campaign, the balance in democratic on the left or right gain in popularity and governing needs to shift toward the com- political power.10 promising mindset and the political com- Just as an electoral victory is typically promises that it makes possible. The suc- not a mandate for the speci½c policies on cess of democratic politics depends on which the candidates campaigned, so, too, how elected leaders govern–and therefore the favorable attitude toward compro- on their attitudes toward compromise. mise in general does not regularly trans- But successful democracy also de pends fer to majority support for particular on the attitudes of citizens who elect the compromises. This disconnect between leaders. They, too, must grasp the value of general support and the rejection of com- compromise. promise on a speci½c issue–be it immigration, taxation, government spending, Compromise is necessary and desirable the environment, or abortion–is a per- in a democracy–most Americans usually sistent factor in preventing political prog- agree. But particular compromises are con- ress. In fact, on most issues, “openness to testable–most Americans usually want compromise is inversely linked to the to contest them. Within limits, a popular importance people place on the issue.”11 posture in democratic politics is: say yes People seem to like compromise the most to compromise, but no to compromises. on the issues they care about the least. When asked about compromise in gen- There are important limits here, too. eral, most Americans like the idea. In Opposition to particular compromises numerous surveys over the past several often fades in the face of a crisis. When decades, large majorities of Americans compromise is a condition of avoiding an declared themselves in favor of political imminent public disaster, the vast major- compromise in general. Even after the ity of citizens, from across the political sweeping Democratic victory in the mid - spectrum, support compromise. Six out term elections in 2006, three-quarters of of ten Americans–including a majority the public continued to call for compro- of Republicans, independents, and Dem - mise.8 The 2012 election may or may not ocrats–wanted the debt supercommittee have produced a clear mandate for any to compromise, even if they expected to speci½c policy, but exit polls strongly sug- disagree with its recommendations.12 gest that most Americans want politi- Faced with the possibility of a govern- cians to cooperate and compromise to ment default in July 2011, even a large end the gridlock in national politics, at majority of Tea Party supporters said least on some policies. Republicans in Congress should compro-

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Valuing mise in order to come to an agreement act, is founded on compromise and Compro- with Democrats to raise the debt ceiling. barter.”14 But as a politician, he famously mise for the When presented with the choice of refused to compromise with his con- Common whether an agreement should include stituents when their will contradicted his Good only spending cuts, tax increases, or a judgment.15 John Stuart Mill’s contem- combination of both, two thirds of the poraries knew the nineteenth-century Tea Party supporters said that it should liberal theorist as an uncompromising include a combination of spending cuts radical. But when elected to Parliament, and tax increases.13 Strong public sup- Mill was quite willing to make deals and port for compromise on governmental support concessions to achieve even rela- revenue increases and spending cuts rose tively modest gains.16 again in the face of the “½scal cliff”–the It might seem, then, that conservatives massive across-the-board federal tax rate favor compromise in principle but not in increases and defense and entitlement practice, whereas liberals oppose com- cuts that were threatened to take effect in promise in principle but accept it in prac- January 2013. tice. But consider the Pew Center’s inter- But once the immediate threat is averted, pretation of its 2007 survey on attitudes the critics of the compromise come out in toward compromise: “Democrats tend full force, especially when a compromise to favor compromise in principle, but not is reached through an acrimonious pro - in practice, while Republicans favor com- cess. The debt ceiling agreement in promise in practice, but not in princi- August 2011 was followed by harsh, prin- ple.”17 This is precisely the reverse of the cipled criticism from both sides of the Burke/Mill contrast. aisle. Similarly, the compromise to avoid The more plausible interpretation is the ½scal cliff, brokered by Vice President that attitudes toward compromise are Biden and Senate Majority Leader Mc - not inherent in either ideology or party. Connell in the waning hours of 2012, was Both liberals and conservatives, Demo - immediately met with intense criticism crats and Republicans, can favor compro- of both the content of the agreement and mise in principle while resisting it in the tactics of the negotiators–despite practice–and vice versa. In the modern consensus on the need to compromise welfare state, even partisans who want and the overwhelming Senate vote in favor less government must legislate to get it, of the agreement. and often that requires compromise. Public ambivalence toward political Attitudes toward compromise depend compromise is not unique to Americans much more on the relative power of the who respond to surveys. It reflects the parties at a particular time, the speci½c inevitable tension between seeing the need issues in question, and the mindsets of to compromise to make political progress the individuals making the judgments. and appreciating the loss of something What is consistent, however, is the per- valuable in agreeing to a compromise. sistent disconnect between the attitudes Political philosophers share a similar toward compromise in general and the ambivalence toward compromise. Ed - inclinations to make particular compro- mund Burke, the eighteenth-century mises. Nothing is more common in polit- conservative thinker and British states- ical negotiation than praise for the idea of man, declared that “all government, compromise coupled with resistance to indeed every human bene½t and enjoy- realize it. Resistance to speci½c political ment, every virtue, and every prudent compromises prevents the value of com-

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promise in democratic politics from accommodation. Without compromise Amy being appreciated. Politicians and citi- on health care, taxation, and other major Gutmann & Dennis zens tend to discount the general value of issues, the status quo prevails, even when Thompson compromise when they come to make it preserves a policy that does not serve decisions about particular compromises. the common good, or produces conse- To give compromise its due, we need to quences that create a major crisis. connect its general value to decisions The key question to ask of any compro- about particular compromises, and then mise: does the proposal (or any feasible empower this value to influence negotia- alternative) represent an improvement tions. over the status quo? This question in effect brings the general value of compro- Why should we be concerned that con- mise to bear on the decision about a par- temporary American politics makes com - ticular compromise. Although compro- promise so dif½cult? After all, some com- mises are typically seen as, and often are, promises are undesirable, and politicians the products of unprincipled bargaining should sometimes stand resolutely on and reinforcements of the prevailing bal- their principles and oppose legislation ance of power, they are also the pri- that violates those principles. The chief mary–and often the only–means by reason to be concerned is that the greater which democratic politics can improve the resistance to compromise, the greater on the status quo. the bias in favor of the status quo. In some cases, the status quo may be Privileging the status quo does not preferable to any of the proposed alterna- mean that nothing changes. It simply tives. Some political scientists have ob - means that politicians allow outside served that legislative inertia induced by forces–the market, expiring agreements, resistance to compromise may not be a social movements–to control the change. problem when voters do not want Con- The status quo includes both the current gress to act–for example, during the state of affairs and the state that results period of large budget surpluses in the from political inaction. In the deeply late 1990s. But they also recognize that it divided politics of 2011, rejecting con- becomes a serious problem when voters gressional compromise on raising the “believe the government should take debt ceiling would not have left the econ- some action to alleviate a problem.”18 omy unchanged. Similarly, after the 2012 There can also be reasonable disagree- election, rejecting compromise on tax ment about whether a particular com- increases and spending cuts would have promise actually is an improvement over allowed economic changes that few the current state of affairs. Opponents of wished to see. A status quo bias in politics a health care compromise, for example, can result in stasis; it can also produce might agree that it would improve on the unintended and undesirable change. current system, but might also believe The status quo offers no assurance even that accepting the compromise will pre- of stability, let alone of political progress vent an even more desirable reform in the by any standard. The ½rst value of compro- future. Or opponents may think that mise in practice is that it enables improve- accepting the compromise now will lead ments in the existing and ongoing state of to bigger government in the future, affairs. Democratic politics, which repre- which they count as a worse outcome on sents conflicting points of view, cannot balance than what they regard as only a produce change without some mutual modest improvement in the health care

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Valuing system. Admittedly, there may be good Another source of general opposition Compro- reasons for opposing a particular com- to compromise–and the failure to recog- mise for the promise, but they do not support a gen - nize the costs of intransigence–is the Common eral resistance to compromise. They do perpetual hope that there is more to be Good not create the presumption against com- gained (or less lost) in the future by promise that animates the uncompromis- avoiding compromise now. But notice: ing mindset and that dominates contem- opponents of a compromise who use porary American politics. such a rationale are not opposing com- General resistance to compromise pre- promise in principle; they are introduc- sumes that the status quo is always ing new, indirect, long-term projections preferable to compromise, or that it is of policy and strategy into the calculation always a mistake to yield something to of whether a compromise is truly prefer- your political adversaries, even when able to the status quo. This perspective in they are willing to yield something to you. turn opens the door for proponents of the Privileging the status quo in this way is compromise to introduce their own not consistent with either a principled broader, long-term considerations. These liberal or a principled conservative polit- may include the effects of the compro- ical perspective. Liberals do not always mise on the possibility of future coopera- favor the change that compromise can tion, as well as other consequences for bring, and conservatives do not always the democratic process. oppose it. The same holds for moderates, Those considerations point to the sec- libertarians, socialists, and other advo- ond important, but often neglected, value cates of principled political ideologies. of compromise. Resistance to compro- The value of a compromise should be mise undermines the mutual respect that weighed against whether the new poli- is essential for a robust democratic cies advance both sides’ principles com- process. Mutual respect expresses a con- pared with what the status quo produces. structive attitude toward one’s political Resistance to compromise is often rooted opponents and a willingness to engage in in the fact that the costs of not compro- good faith with them. It is based on a mising are never equal for all parties. The principle of reciprocity, which is at the costs of refusing compromise depend on core of many different conceptions of the difference between what credibly can democracy.19 Reciprocity seeks mutually be achieved through compromise and acceptable ways not only of resolving dis- what the status quo offers. This perceived agreements but also of living with the difference will vary according to the pri- disagreements that inevitably remain. orities of the parties to the compromise Mutual respect is consistent with many and the people they represent. Because strategies for reaching agreement, in- political compromises rarely “split the cluding hard bargaining, provided it is difference” between what all parties hope done in good faith. But mutual respect to achieve, resistance may flow from the excludes means that are intended to fear that a compromise will dispropor- degrade, humiliate, or otherwise demean tionately bene½t your political oppo- opponents who themselves demonstrate nents, whom you are al ready disposed to a willingness to negotiate in good faith distrust. Even when all parties stand to (or would demonstrate it were they not gain, such anticipatory resentment of being disrespected). Avoiding compro- unequal gain (or loss) can induce a blan- mise by alienating your adversaries not ket opposition to compromise. only harms the citizens who stand to

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bene½t from a particular compromise, compromise, your assessment of the deal Amy but also diminishes the prospects for is substantially affected by whether you Gutmann & Dennis future compromises. When parties enter believe the other party bargained in good Thompson into negotiations in bad faith, deliberately faith. Given the inevitable uncertainty of misrepresent their opponents’ positions, motives in legislative negotiations, and and refuse to cooperate even on matters the near certainty that the motives are at on which they could find agreement, they least partly political, the circumstances undermine the relationships that are nec- are singularly ripe for distrust. Often essary to sustain any morally justifiable even minor procedural manipulations democracy under the modern conditions (such as the reconciliation tactic used by of deep and persistent disagreement. the Democrats in passing the Affordable Care Act) may be perceived as signs of Recognizing these two values of com- bad faith and give rise to suspicions that promise–that it enables mutually bene½- the process has been unfair. You may be cial improvements and promotes mutually willing to give up a principle if the respectful politics–may still not be process is fair, but if it is not, you under- suf½cient to tip the balance in favor of standably see an already bad bargain as a particular compromise. To understand even worse. The compromising adds in - fully the case for compromise, it is neces- sult to injury. Because the process of sary to appreciate the fact that any spe - political negotiation is imperfect, it is ci½c compromise will by its nature be tempting to fasten on the immediate vulnerable to criticisms from all sides. insult and dismiss the prospective bene½t The philosopher George Santayana, a of the agreement. friend of compromise, captured the dual Then there is Santayana’s point about nature of the aversion to it: it is “odious confusion. A compromise is not designed to passionate natures because it seems a to be coherent or principled in the way surrender, and to intellectual natures that laws ideally are. Even if we seek because it seems a confusion.”20 The sense coherence in law, it is a mistake to think of surrender stems from the fact that that it can be achieved in compromise. A compromise demands the sacrifice of classic compromise gives something to something valuable, and gives rise to sus- all parties, which means that the end result picions that, but for the base motives of is almost always internally contradictory. the other side, the agreement could have The outcome will not be satisfying if been better. The sense of confusion judged from the perspective of any single comes from the fact that compromises principle or set of principles–whether are combinations of often contradictory yours or those of your opponents. You principles. Both of these reactions obscure will reject nearly every possible compro- the true value of compromise. mise if you try to anticipate the outcome First, consider the surrender. Attitudes by testing it against a coherent theory of toward compromise are path-dependent: justice. By its nature, the outcome of a how a compromise is reached affects how compromise will almost never satisfy a it is evaluated. This is because a compro- single principle, a set of principles, or a mise distinctly manifests an opposition theory of justice. The compromise will of wills. It is this opposition of wills that not only fall short, as does most legisla- fuels the anticipatory resentment that tion, but it will include elements that are your party will gain less, or lose more, inconsistent with each other and with than your opponent’s. If you agree to a any single theory.

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Valuing Compromise has its limits, but it is a where it is less useful for the democratic Compro- mistake to try to stipulate categorically or process. The most salient domain, as we mise for the in advance what they are. Consider the have indicated, is campaigning. A success- Common common precept that it is permissible to ful campaign strategy requires an uncom- Good compromise interests but not principles. promising mindset. It favors candidates The problem is not that the distinction who stand firmly on their principles and between interests and principles is fuzzy condemn their opponents’ positions at (it is), but rather that any such distinc- every turn. Candidates sometimes modify tion–implying that interests may be com - their positions to reach independents in promised and principles should not–will general elections, but less than is usually as - disqualify too many potentially desirable sumed, and even a modest gesture toward compromises. Principles can be–and most the center is often suspect in the eyes of often are–realized only partially. We im - the candidate’s base. The primary election plicitly accept this truth throughout our effectively requires candidates to maxi- lives: even without compromising, we mize their uncompromising positions to are not likely to realize absolutely our capture their partisan base, which will then most prized political principles–liberty, assail primary winners if they diverge from opportunity, justice for all. Less lofty polit- their hard lines in the general election. ical principles, which often are no less pas- Tenaciously standing on principle, as sionately held–such as a commitment to the uncompromising mindset demands, lower taxation and entitlement spending, is necessary for political mobilization. or to provide universal health care cover- Candidates inspire supporters less effec- age and decrease its cost–even more tively when they talk more about prudent clearly admit of gradations of realization. compromises than about steadfast com- Compromises of principle and interest are mitments. Their support and ultimately neither morally nor practically distinct. their success in the campaign depend on Furthermore, no one can fully antici- reaffirming their uncompromising com- pate what results the complex process of mitment to core principles, and on dis- compromise can be expected to yield, tinguishing their positions sharply from especially in major legislative struggles. those of their opponents. Achieving the best possible outcome will Campaigning also requires mutual mis- depend in no small measure on the trust, the second element of the uncom- nature of the negotiations and the evolv- promising mindset. Campaigns are coming political context. Drawing a line in petitive encounters, not cooperative enter- the sand–if more than a negotiating tac- prises. They are contests with zero-sum tic–is a prescription for thwarting mu - outcomes, not opportunities for win-win tually beneficial progress before it can solutions. Mutual distrust is not only take form. And once agreed upon, com- understandable but advisable. promises are easy targets for criticism But while the uncompromising mind- simply because the apparent results– set serves a useful democratic purpose in often morally incoherent–are divorced the domain of campaigns, it is detrimen- from both the process and alternatives tal when it dominates in the domain of that were available at the time. governance. To govern, elected leaders Instead of trying to ½nd a formula for have to adopt a compromising mindset. limiting compromise, we do better to Rather than standing tenaciously on locate its limits by identifying domains principle, they need to make concessions.

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Rather than mistrusting and trying to the populist movement that began in Amy defeat their opponents at every turn, they 2009 and rapidly grew in numbers and Gutmann 23 & Dennis have to respect their opponents enough influence. Promoting various conser- Thompson to collaborate on legislation. vative and libertarian causes, including In the era of the permanent campaign, smaller government, lower taxes, and the division of labor between campaigning reduced debt and budget de½cits, the and governing has dissolved.21 Political movement was credited with electing leaders increasingly rely on political con- dozens of new state legislators and mem- sultants, pollsters, and focus groups to bers of Congress. formulate public policy. Interest groups Yet here, too, the uncompromising and their lobbyists constantly remind mindset has limits. When the Tea Party politicians that what they do in of½ce will congressional representatives faced the affect whether they stay in of½ce– choice between legislating or protesting, reminders that often come as offers not these limits became apparent. As some to be refused. Politicians spend more and political scientists observed, “Tea Party more time between elections raising activism is more likely to produce politi- funds for their next campaigns. Journal- cal theater among competing agitators ists increasingly cover governing as if it than to foster reasoned compromise were campaigning. within the gop or between Republicans No one should suppose that we could and Democrats in Washington.” This return to a time when governing and approach may help “keep base supporters campaigning stayed mostly in separate attentive and angry,” but it is not con- spheres, each minding its own business. ducive to bringing about legislative change The process then was in many respects or to expanding the movement itself.24 less democratic, and no more edifying than This “just say no to compromise” ap - ours today. But if we wish to improve the proach also showed signs of frustrating prospects of compromise, we must ½nd even many Tea Party supporters.25 ways to keep the pressures of campaigning from overwhelming the business of gov- Compromise is essential for facilitating erning. We need to respect the value of legislation to improve on the status quo not compromising in campaigns without and for cultivating the respect necessary letting it obscure the value of compro- for cooperation in democratic politics. It mising in governance. can in this way serve the common good There is another, no less signi½cant do - without itself containing only common main in which the value of compromise is goods. Yet the political deck is stacked limited. Uncompromising politics is valu- against compromise in many ways. The able in social movements, political pro - more the permanent campaign and its tests, demonstrations, and activist orga - uncompromising mindset dominate the nizations, and their surrogates in govern- political landscape, the harder legislative ment. As political theorists and political agreements are to reach. When compro- scientists have long recognized, contesta- mises are reached, they are, by their very tion is at least as important as consensus nature, vulnerable. They rarely enjoy the in a democracy.22 Contentious politics is luxury of resting on common ground; they an essential part of the democratic process. too easily become casualties of confusion, Among the most uncompromising dispatched for their incoherence, if they activists in recent American political life have not already become victims of death have been the supporters of the Tea Party, by distrust.

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Valuing We have suggested why the general such reforms comes with a catch-22. Compro- value of compromise needs to be better Institutional reforms themselves require mise for the appreciated in governance. Politicians a change in the mindsets of our political Common must confront the challenge of making leaders: the reforms are impossible with- Good speci½c compromises in order to address out compromise. Either legislators adopt major public concerns and to overcome a compromising attitude, in which case dysfunctional political gridlock. Because the reforms are not essential, or they do majorities of voters often favor compro- not adopt it, in which case they will not mise, some political scientists and reform- be able to agree on the reforms. There is ers argue for the need to modify electoral no deus ex machina that will save demo- institutions so as to give greater voice to cratic government from itself. majorities over intransigent minorities on If legislators themselves do not recog- both sides. Allowing independents to vote nize the value of compromise, then voters in all party primaries could help elect can - need to use elections to show that they didates with more compromising attitudes. do. Voters must choose representatives Publicly ½nanced campaigns could lessen who care enough about governing to take the pressures of fundraising that both dis- the risks of compromising. This does not tract politicians from governing and influ- mean accepting candidates who abandon ence the manner in which politicians gov- their principles or forgo partisanship. But ern. Rules that require members of Con- it does mean choosing candidates who gress to spend more time working together are able to set aside their uncompromis- in Washington, instead of rushing home ing mindsets long enough to craft the to raise campaign money, could help. compromises necessary to improve on These are all worthy reforms. We have the status quo and serve the common elsewhere argued in favor of many of good. them.26 But any attempt to carry out

endnotes * Contributor Biographies: AMY GUTMANN, a Fellow of the American Academy since 1997, is President of the University of Pennsylvania, where she is also the Christopher H. Browne Distinguished Professor of Political Science. Appointed in 2009 by President Obama, she chairs the Presidential Commission for the Study of Bioethical Issues. She was also the founding director of the University Center for Human Values at Princeton University. Her publications include The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It (with Dennis Thompson, 2012), Why Deliberative Democracy? (with Dennis Thompson, 2004), and Identity in Democracy (2003). DENNIS THOMPSON, a Fellow of the American Academy since 1994, is the Alfred North Whitehead Professor of Political Philosophy in the Department of Government and Professor of Public Policy in the Kennedy School at Harvard University. He is also the founding director of the University Center for Ethics and the Professions (now the Edmond J. Safra Center for Ethics) at Harvard. His publications include The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It (with Amy Gutmann, 2012), Restoring Responsibility: Ethics in Government, Business, and Healthcare (2005), Why Deliberative Democracy? (with Amy Gutmann, 2004), and Just Elections: Creating a Fair Electoral Process in the United States (2002). Authors’ Note: This essay is drawn substantially from parts of our book, The Spirit of Com- promise: Why Governing Demands It and Campaigning Undermines It (Princeton, N.J.: Princeton University Press, 2012).

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1 John Rawls, A Theory of Justice, rev. ed. (Cambridge, Mass.: Harvard University Press, 1999), Amy 205–217. Gutmann & Dennis 2 cbsnews, 60 Minutes, “Meet The Next House Speaker, Rep. John Boehner,” December 12, Thompson 2010, http://www.cbsnews.com/stories/2010/12/09/60minutes/main7134156_page3.shtml ?tag=contentMain;contentBody. 3 Matt Viser, “For Romney, Bay State No Longer a Punch Line,” The Boston Globe, October 27, 2011. 4 Nicolas Ballasy, “Reid: Senate will Stay in Session ‘As Long As Necessary,’” Daily Caller, October 17, 2011, http://dailycaller.com/2011/10/17/reid-senate-will-stay-in-session-as -long-as-necessary-to-pass-35-billion-stimulus/. 5 John Rawls, Justice as Fairness (Cambridge, Mass.: Harvard University Press, 2003), 32–38. 6 Alan Simpson and Erskine Bowles, “Our Advice to the Debt Supercommittee: Go Big, Be Bold, Be Smart,” The Washington Post, September 30, 2011. 7 Hugh Heclo, “Campaigning and Governing: A Conspectus,” in The Permanent Campaign and Its Future, ed. Norman Ornstein and Thomas Mann (Washington, D.C.: American Enter- prise Institute, 2000), 37. 8 Pew Research Center, “Broad Support for Political Compromise in Washington: But Many Are Hesitant to Yield on Contentious Issues” (Washington, D.C.: Pew Research Center, Jan- uary 22, 2007), 12. 9 Pew Research Center, “Few are Angry at Government, but Discontent Remains High” (Washington, D.C.: Pew Research Center, March 3, 2011), 1. 10 Pew Research Center, “Little Compromise on Compromising” (Washington, D.C.: Pew Research Center, September 20, 2010). Also see Pew Research Center, “Few are Angry at Government, but Discontent Remains High.” 11 Pew Research Center, “Broad Support for Political Compromise in Washington,” 14. 12 Frank Newport, “Americans Want New Debt Supercommittee to Compromise: Only Tea Party Supporters Take Hard-Line Stance,” Gallup Poll report, August 10, 2011, http://www .gallup.com/poll/148919/americans-new-debt-supercommittee-compromise.aspx. 13 Results are from a July 2011 nationwide cbs News poll reported by Kate Zernike, “That Monolithic Tea Party Just Wasn’t There,” The New York Times, August 2, 2011. 14 Edmund Burke, “On Conciliation with the Colonies,” in Speeches and Letters on American Affairs (London: Dent, 1908), 130–131. 15 Edmund Burke, “Speech to the Electors of Bristol,” November 3, 1774, in The Founders’ Con- stitution, vol. 1, ed. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987), 391–392. 16 Dennis F. Thompson, “Mill in Parliament: When Should a Philosopher Compromise?” in J. S. Mill’s Political Thought, ed. Nadia Urbinati and Alex Zakaras (Cambridge: Cambridge University Press, 2007), 166–199. 17 Pew Research Center, “Broad Support for Political Compromise in Washington,” 15. 18 David Brady and Morris Fiorina, “Congress in the Era of the Permanent Campaign,” in The Permanent Campaign and Its Future, ed. Ornstein and Mann, 154–155. 19 Mutual respect and reciprocity play a prominent role in theories of deliberative democracy: see Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? (Princeton, N.J.: Princeton University Press, 2004), 95–124, 151–156; and Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1996), 52–55, 79–91. Many other theorists also emphasize the importance of the principle of reciprocity (and by implication the value of mutual respect). See, for example, Corey Brettschneider, Democratic Rights: The Substance of Self-Government (Princeton, N.J.: Princeton

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Valuing University Press, 2010), 34–37; Ronald Dworkin, Is Democracy Possible Here? (Princeton, Compro- N.J.: Princeton University Press, 2008), 5, 64, 112, 132–133. mise for the 20 George Santayana, Soliloquies in England and Later Soliloquies (New York: Charles Scribner’s Common Sons, 1923), 83; emphasis added. Good 21 For a sharp contrast between the concepts of campaigning and governing, see Heclo, “Cam- paigning and Governing,” in The Permanent Campaign and Its Future, ed. Ornstein and Mann, 4–15. 22 See, for example, Charles Tilly and Sidney Tarrow, Contentious Politics (Boulder, Colo.: Par- adigm Publishers, 2006). The classic statement of the value of contention is John Stuart Mill’s On Liberty; see John Stuart Mill, Collected Works, vol. 18, Essays on Politics and Society, ed. J. M. Robson (London: Routledge and Kegan Paul, 1977). 23 Kate Zernike, Boiling Mad: Inside Tea Party America (New York: Times Books, 2010); Jill Lepore, The Whites of Their Eyes: The Tea Party’s Revolution and the Battle over American History (Princeton, N.J.: Princeton University Press, 2010); and Theda Skocpol and Vanessa Williamson, The Tea Party and the Remaking of Republican Conservatism (New York: Oxford University Press, 2012). 24 Skocpol and Williamson, The Tea Party and the Remaking of Republican Conservatism, 36–37. 25 Zernike, “That Monolithic Tea Party Just Wasn’t There.” 26 Amy Gutmann and Dennis Thompson, The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It (Princeton, N.J.: Princeton University Press, 2012), 168–204.

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Reestablishing the Commons for the Common Good

Howard Gardner

Abstract: For individuals living in a small community, the notion of “common good” seems almost natural; it can be thought of simply as neighborly morality. However, in a complex modern society, it is far more challenging for individuals to de½ne and agree upon what is the common good. Nonetheless, two contemporary roles would bene½t from embracing a broader sense of the good: 1) membership in a profession; and 2) membership in a polity. Drawing on ½ndings from the GoodWork Project, I describe how the common good can become a guiding value in the professional and civic realms; discuss threats to such guiding values; and suggest some ways to promote the common good in contemporary American society.

As high-end primates, human beings in earlier eras presumably had some notion of “common good.” Parents made sacri½ces for their children, and later in life, the favor was often returned. Siblings and more distant relatives cared for one another and, perhaps, for a broader group of persons. Precisely when such solidarity transcended blood relationships will likely never be known. The work of anthropologist Robin Dunbar hints at the scope of early conceptions of the common good.1 Dunbar argues that individuals can comfortably maintain relationships with up to 150 people: the maximum HOWARD GARDNER number of individuals in a clan or small tribe who , a Fellow of see each other regularly, and whose behavior– the American Academy since 1995, is the John H. and Elisabeth A. friendly and helpful, or hostile and injurious–can Hobbs Professor of Cognition and be remembered for purposes of cooperation or Education at the Harvard Gradu- retaliation. ate School of Education, where he I have coined the phrase neighborly morality to is also the Senior Director of Har- denote this conception of the common good.2 vard Project Zero. His many publi- Here, individuals handle a manageable cognitive cations include Truth, Beauty, and load, with some capacity to solve existing problems Goodness Reframed: Educating for the Virtues in the Age of Truthiness and and to anticipate new ones. It is logical for such Twitter (2012), Leading Minds (1995), individuals to help one another from time to time, and Frames of Mind: The Theory of to work together toward goals that would be Multiple Intelligences (1983). dif½cult or impossible to achieve independently.

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Reestab- Indeed, this is what happens in small set- compelled to do so; but some citizens lishing the tlements. also understood why it might be in their Commons for the Consider the Ten Commandments and interest to cooperate in such large-scale Common the Golden Rule. Traditional injunctions ventures. Whether literally religious, like Good make sense when dealing with a manage- Christianity or Islam, or better described able number of acquaintances. Honor your as spiritual, like Confucianism or Shinto, parents and desist from lying, stealing the belief systems of these civilizations from, and disrespecting your neighbors. provided rationales for pro-social behav- Moreover, sanctions that follow the break- ior, which motivated some inhabitants. ing of these codes–whether imposed by Both formal and informal educational the community or by God–reinforce the systems also represented efforts to instill desirability of the neighborly form of the such cooperative behaviors in the next common good. generation. We lack thorough histories of such My concern is not with authoritarian small human groups. Communities large or totalitarian societies–the pharaohs of and literate enough to leave written Egypt, the Qin emperors in China–or records have dwarfed the type of neigh- the fascist and communist dictators of borhood that Dunbar describes. Yet the the twentieth century. Rather, the chal- need to recognize and address the com- lenge is to understand the speci½c condi- mon good scarcely disappears with the tions under which a voluntary conscien- emergence of larger settlements, villages, tiousness emerges in nonauthoritarian cities, and states. societies. In such cases, individuals who Is there evidence of voluntarism in have the freedom to behave sel½shly working for the common good in these instead elect to devote signi½cant effort larger communities? The slaves of Egypt to bene½t the larger polity. In contrast to built pyramids, burial tombs, and mas- neighborly morality, I term this variety of sive granaries that served others, but we service the ethics of roles. The two principal have no reason to believe that their roles with regard to serving the common actions were voluntary. So, too, serfs and good are those of the worker and of the peasants in ancient and medieval times citizen. mined for precious metals and harvested The ethical citizen views the polity as crops. Indeed, much of the political theory an extension of himself and his interests. developed in Europe in the seventeenth Not only does the ethical citizen identify and eighteenth centuries was an attempt with his city, region, or state; but con- to determine whether such apparently cerned with the welfare of that entity, he selfless actions were compulsory; or is willing to contribute to it, whether or whether people joined together voluntarily not he and his kin bene½t directly. to serve what they believed was a broader Such powerful civic associations are good than that extended to kith and kin. illustrated by the Athenians’ long-honored concern with the welfare of their With the growth of states and the city. In ½fth century Athens, young adult emergence of nations, centralized pow- males swore the following oath: ers came to the fore. Inhabitants of the We will never bring disgrace on this our city great empires–Chinese, Indian, Ottoman, through an act of dishonesty or cowardice. Holy Roman–did not merely elect to pay taxes and tribute or to bear arms in a mili- We will ½ght for the ideals and Sacred Things tary expedition. At minimum they were of the city both alone and with many.

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We will revere and obey the city’s laws, and the greater good can be discerned in the Howard will do our best to incite a like reverence emergence of labor unions in Europe and Gardner and respect in those above us who are the Americas. prone to annul them or set them at naught. The ethical worker emerged with the development of the professions, some- We will strive increasingly to quicken the times called the learned professions. Paral- public’s sense of civic duty. leling the oath of the Athenian citizen is Thus, in all these ways we will transmit this the Hippocratic Oath, which is generally city, not only not less, but greater and more considered the ½rst example of a profes- beautiful that it was transmitted to us.3 sional oath and is still commonly taken today in one or another form. By taking In Western civilization since the height the oath, the physician pledges to come of Athens, there have been both periods to the aid of those who are sick, to do so of active ethical citizenship and periods without regard to the patient’s ability to when the role of the ethical citizen was pay, to avoid any form of bribery, to pass quiescent or even absent. Some periods on the trade to the next generation, and of ethical citizenship coincided with reli- to respect the patient’s privacy. While the gious agendas: for example, participation oath may protect the special status of the in the Crusades on behalf of Christen- profession, it also represents a pioneering dom seems to have been voluntary on the effort to stipulate what it means to serve part of many. Other periods coincided the larger community–the common good. with political revolution–be it the Amer- In the early 1960s Dædalus devoted an ican Revolution, the French Revolution, entire issue to the American professions. the founding of the modern Chinese The professions were then at their heights: state, or the Russian Revolution of the “Everywhere in American life, the profes- early twentieth century. It is also possible sions are triumphant,” remarked editor to evaluate and rank polities in terms of Kenneth Lynn.4 Professionals had pres- civic concern for the common good. tige, status, and adequate compensation. Contemporary Scandinavian and other They were viewed as individuals, and Northern European countries, for exam- because they had mastered their material, ple, stand out for embracing a voluntary were current in knowledge, and had been form of the common good. East Asian endorsed by the masters of their chosen countries also demonstrate a concern guild, they were granted considerable with the common good, though it may be autonomy. They were perceived as author- somewhat less volitional on the part of ities, capable of rendering disinterested their citizens. judgments in the face of complexity and The role of the ethical worker comple- uncertainty. Soon additional sectors of ments that of the ethical citizen, and its society, from business to journalism, history is no less complex. Early instances emulated the “gold standards” of medi- of the ethical worker include the emer- cine, law, and the professoriate with regard gence of trades and guilds in the late Mid- to credentialing, service, and objectivity. dle Ages. Certainly, trades and guilds ex- The concept of “disinterestedness” is hibited sel½sh and secretive behaviors. crucial to the roles of both the professional But within the guilds there was also an and the citizen.5 Of course, the ethical awareness of which actions and which worker and citizen does not ignore his or ideals served the good of the budding her own needs. Nevertheless, society ben- profession and, perhaps, of the broader e½ts when those wielding power and society as well. The guild’s concern for

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Reestab- influence–in professional of½ces, in the documented the dif½culty of maintain- lishing the voting booth, in the public sphere–are ing professionalism in the ½nancial sec- Commons for the able to transcend narrow self-interest. tor in the face of rapid change and the Common Professionals follow the precepts of the opportunity to make enormous sums of Good guild just as citizens follow their oath of money when willing to cut corners.) citizenship. Thus, their understanding of To understand and address this move- personal gain is viewed within the con- ment away from the honored professional, text of the greater good over an extended we founded the GoodWork Project. period of time. Active today, the GoodWork Project is concerned with what it means to be a So why is a professor of cognition and professional in the modern world. We education writing an essay on the ethical explore the question of how professions professional and the ethical citizen? I can survive when conditions are chang- grew up in the 1950s and 1960s, when the ing rapidly, when our sense of time and professional in America was highly space has been radically altered by tech- esteemed. Certainly, the professions were nology, when markets are very powerful, not without flaws: women and minori- and when few if any counterforces can ties were often barred from entering a mediate or moderate the forces of the profession, never mind ascending to the market. To answer these questions, we top ranks (a challenge that still remains interviewed more than 1,200 profession- in many sectors). Yet without romanti- als drawn from nine different realms of cizing the era, I feel reasonably con½dent work, and we launched a series of sibling that American professionals in the mid- and offspring research projects. Our twentieth century cultivated a sense of ½ndings are detailed in a dozen books the common good, and this framework and numerous articles, and described at guided them in their work. And flawed our website www.thegoodproject.org.6 though they were, American citizens and Why has the role of the professional in public servants of the era viewed them- America been undermined in such a selves as servants of this same common short period of time? Indeed, the percep- good, not servants of just their immedi- tion of the American professional has so ate needs, neighbors, or constituencies. shifted that many young persons assume By 1995, my colleagues in psychology, that a professional is simply a business- Mihaly Csikszentmihalyi and William man who does not make as much money Damon, and I sensed that the era of the as a successful entrepreneur, trader, or honored professional was already on the consultant. wane. We could see that law was becom- A multitude of factors has contributed ing overwhelmingly corporate; that the to the diminution of the role of the pro- practice of medicine was taking place in fessional, and more speci½cally, of its large, non-professionally-led health main- ethical core. Among the contributing fac- tenance organizations, often for-pro½t; tors is the opening of the profession to and that print and broadcast journalism groups that were hitherto not welcome. had dif½culty covering important news Without question, this access has on bal- in a thorough and dispassionate way. (We ance been a healthy and needed trend, were then unaware of the parallel pres- echoing George Bernard Shaw’s renowned sures put on ½nancial professionals– quip that “all professions are conspira- auditors, bankers, credit raters–but the cies against the laity.” However, this events of the past decade have amply democratization has also often entailed

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an anti-elite, anti-expert sentiment. A dif½cult to reverse on an individual or Howard heightened belief in the genius of the societal level. Gardner market, which is believed to be the opti- GoodWork Project researchers are often mal regulator of society and its institu- asked how we know that professionals tions, has also lessened the value placed are less ethical than they once were. on professionals. In Ronald Reagan’s Admittedly, we could not prove this claim United States and Margaret Thatcher’s to a skeptic, though much research with United Kingdom, there was little sympa- young people suggests an attenuation of thy for professionals who sought protec- the ethical muscle. But regardless of its tion of their status: “There is no such thing standing in relation to the past, the ethi- as society,” Thatcher famously declared. cal level of professions inarguably needs And with cost-free access to copious nurturing today. technical information, the digital revolu- And what of the role of the ethical citi- tion has sometimes engendered unrealis- zen? The research of political scientist tic expectations of expertise on the part Robert Putnam documents the decline of of professionals and placed unexpected civic communitarian groups, the weak- pressures on those who, in earlier times, ening of civic trust in increasingly diverse had been assumed to “know best.” societies, and the growing politicization Though it has largely been a hidden of religion; not one of these developments trend, the special status of the profes- favors the common good.7 Voting per- sional has been gradually worn down by centages may fluctuate, but public trust the tide of market and value changes. in governmental institutions and prac- One single event did not suddenly under- tices has dropped steadily, if not precipi- mine the professional; rather, between tously. Considerable evidence from the 1970 and 2010, the once-esteemed profes- digital world documents both the igno- sional came to be viewed with increased rance of citizens about basic constitu- skepticism and distrust. And while dim- tional and historical concepts and the inution of status does not necessarily increased tendency of citizens to associ- entail a diminution of ethical ½ber, it is ate principally with those who share their more dif½cult for the professional to political views. The hope that the Inter- serve the common good when society no net would usher in an era of cosmopoli- longer elevates and empowers him. tanism, empathy, and/or generosity has The relatively positive milieu of the not–or at least not yet–been realized. mid-twentieth century has been replaced by an atmosphere of fear and greed Given the dystopic trends in contem- among many citizens and professionals: porary American society, it is necessary fear on the part of those who feel that to search broadly for encouraging mod- they are losing their place in society; and els. It is poignant that many formerly greed on the part of those whose lives are totalitarian states–in Eastern Europe driven by a desire for ever more posses- and East Asia, for example–look to the sions and ever-advancing status all too United States for models of how to devel- often yoked to the level of compensation, op an independent legal system, a politi- even in the not-for-pro½t sector. Concern cal process, a faculty governance, or a for the common good cannot survive in journalistic ethos, at a time when the the face of these two virulent forces. ethics of the professions in the United More worrisome, fear and greed combine States are being intensely challenged. to form a vicious cycle that is extremely Revealingly, a preliminary ½nding from

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Reestab- one of our studies suggests that immi- therefore is not accepted as part of the lishing the grant youth are no more trusting of insti- nation, then notions of the common Commons for the tutions and public ½gures than are Amer- good become truncated. The same issues Common ican-born youth; however, the immigrant arise in East Asia, where minorities in Good youth at least trust the processes in areas China or Japan have not been easily inte- such as law or investigative reporting. grated into the majority culture. Coun- Scandinavia (particularly Sweden and tries with greater diversity and estab- Denmark) and certain other pockets of lished histories of integrating ethnic Western Europe are probably the strongest minorities may have an easier time em- bastions of ethical citizens and ethical bracing an ecumenical notion of the professionals today. For many years, I common good. Recent social and politi- have visited Reggio Emilia, a small city in cal movements in the United States, northeastern Italy, celebrated for its Brazil, and India, however, demonstrate remarkable preschool educational insti- the constant pressures placed on ethni- tutions. Not coincidentally, Reggio Emilia cally diverse societies to limit the scope is in the region of Italy that, according to of what constitutes “we.” Robert Putnam, founded institutions of civic democracy as early as the twelfth In addition to documenting threats to century!8 Not only have I observed an ex- the common good, the GoodWork Proj- emplary concern for the common good ect research group has sought to identify in Reggio Emilia, but this Italian commu- features that are most likely to engender a nity represents a model learning organi- broader sense of community among pro- zation, with leaders working tirelessly to fessionals and citizens. Many of the pro- learn from other sites as well as from fessionals with whom we spoke cited their own experiments and mistakes.9 early religious education or experiences However, it is not clear either in Scan- as a principal contributor to their ethical dinavia or in other parts of Europe that sense. Though many participants iden- the ethics of roles can endure in the face ti½ed their religious upbringing as a major of these three factors: 1) pressures of the influence on their adult understanding of market and of globalization; 2) ready ethics, most no longer actively practiced access of the general population to knowl- their birth religion, nor did God or their edge and expertise, both genuine and religion otherwise come up in our lengthy feigned, ushered in by the digital revolu- interviews. In fact, for only one interview tion; and 3) the large-scale movement of group did religion continue to loom large: immigrants into once homogeneous so- namely, subjects who had been nominated cieties. From what I have observed, coun- as “good businessmen or businesswom- tries like Sweden and the Netherlands en.” Note, however, that our interviews make great efforts to integrate immi- took place largely on the two coasts of the grants. Yet, particularly at times of ½nan- United States; if our sample had been cial pressure, it is easy to scapegoat immi- more heavily skewed toward the South or grants and thereby narrow the scope of the Midwest, religion might have been dis- what is “common.” cussed more frequently. Speci½cally, in Scandinavia and parts of Beyond the familial and religious Northern and Western Europe, the com- milieus of early life, three factors prove mon good is seen as the good of the influential in developing an ethical sense: whole nation. But if a signi½cant part of Vertical Support. Mentorship and other the population is not integrated, and forms of institutional support are crucial

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to the individual’s development of an high ethical standards. The remarkable Howard ethical stance. An admired mentor pos- young entrepreneurs who have recently Gardner sessing a strong ethical compass may be a founded organizations in education, citi- hugely influential model to a developing zenship, justice, and the environment have citizen. The same holds true of the work- much to teach us about the pursuit of the place milieu: do leaders and supervisors common good. Alas, as John Gardner– value a high ethical standard, and not just the embodiment of the good citizen in an as a talking point? earlier era–has pointed out, their efforts Less predictably, our research subjects can pale in the event that necessary and frequently mentioned individuals who far-reaching legislation is not enacted. served as negative role models–we called Periodic Wake-up Calls. Even when at- these anti-mentors or tor-mentors. Our sub- tempting to serve the common good, jects often explained: “He (or she) epito- workers and citizens can regress, acting mized what I did NOT want to be.” Of either foolishly or sel½shly. At such course, many ethically compromised times, an unexpected event can be salu- workers lacked mentors, or had mentors tary. The event is often a negative one– who were themselves ethically de½cient. malpractice on the part of an individual Distance from a mentor with a negative or group that threatens the viability of influence may be required for a profes- the overall enterprise. Such a wake-up sional to realize that his or her mentor is call occurred at The New York Times early not worthy of emulation. in the twenty-½rst century. Within a Horizontal Support. In the contemporary short time frame, two key events unfold- United States, particularly with the rise ed: 1) the Times discovered that staff of social media, the role of peer groups reporter Jayson Blair had plagiarized and has taken on greater importance. With fabricated news stories; and 2) the na- mentors scarce and senior individuals tional news division published the unsub- often moving from one institution to stantiated claim that Saddam Hussein another, the influence of age-mates can was hiding weapons of mass destruction be enormous. And as the GoodWork in Iraq. Such wake-up calls may compel Project has documented, many young individuals to revisit the core values of professionals perceive their peers to be their profession and redetermine how extremely ambitious, often willing to cut best to embody them. The wake-up call is corners to gain advancement. (We were therefore ultimately a positive event that not in a position to determine whether can help workers entrenched in a profes- these perceptions were accurate.) Our sion appreciate how their role can serve subjects explained to us that they were the broader good. That was the case in not willing to hurt their odds of profes- 1971, when The New York Times and The sional success by being more ethical than Washington Post risked judicial proceed- their peers. A low or inconsistent set of ings and ½nancial ruin by publishing the standards among peers–whether gen- Pentagon Papers. uine or perceived–can confound one’s These forces are not limited to the pro- ethical orientation. fessional realm, but operate in civic life as Peer influence need not be destructive. well. Young people are heavily influenced It is certainly possible for peers to band by the models of parents and teachers; together, to attempt to better the ethical indeed, the best predictor of interest in milieu of their organization, or even to civics is growing up in a home where start a new institution that embodies members of the family regularly discuss

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Reestab- and debate the news. Peers exert potent nized around a series of lessons, the par- lishing the influence as well: it matters whether a ticipants tackle questions such as: What Commons for the child’s peers discuss participants and work is admired, and why? Can work be Common events in the political and economic both engaging and ethical? Is it appropri- Good worlds, or if they restrict their discourse ate to cut corners when your colleagues to gossip about celebrities. And once engage in such compromises? The Toolkit again, the occurrence of a major event– can be used in any educational setting, carnage at an elementary or secondary but is most effective when, like the travel- school, the bombing of the Twin Towers ing curriculum in journalism, all the –can serve as a civic wake-up call. stakeholders participate actively. We began the GoodWork Project with Several of us have taught courses cen- the aim of understanding current stances tered on the GoodWork themes. We have toward the common good: what is hap- also designed “reflection sessions” for pening with respect to various profes- undergraduates. In these voluntary sessions and, more generally, to the world of sions, students reflect on their goals and work; and what is happening with respect values; their current use of time and how to citizenship, among youth in particular. consistent this is with their large-scale As the data accumulated, and as we concerns; and the manner in which they reflected on their implications, we elected deal with ethical issues that have arisen to devote our efforts toward the promo- in their own lives, or ones that have been tion of good work and good citizenship. reported in the media. Inspiring individuals to focus on the Under the leadership of William Damon, common good is particularly challenging and with the collaboration of the Com- in a social climate of fear, greed, and mittee of Concerned Journalists, the uncertainty. Indeed, in one study that GoodWork Project designed a traveling included a pre- and post-test, adolescents curriculum for journalists. It is based on a exposed to GoodWork issues actually series of off-site workshops where mem- became more resistant to working for the bers of a journalistic organization can common good.10 It is unclear whether meet to discuss vexed ethical issues, such they became less generous as a means of as how to minimize bias, how to verify resolving cognitive dissonance; or whether sources while competing with blogs in a challenging the common good is, at least 24/7 news cycle, and how to undertake for some, a necessary step en route to a investigative journalism at a time of more capacious perspective. We are under intense market pressures and diminished no illusion that mere discussion of these resources. Carried out in almost two hun- issues is the same as working on them in dred newsrooms and involving approxi- our daily lives; many of us “talk” a better mately three thousand journalists, the game than we “walk.” Yet the results of traveling curriculum has been well re- our various interventions have suf½cient- ceived, and a follow-up study has indicat- ly encouraged us to continue their prac- ed that the workshops have had lasting tice and development. As a result of these value. and other activities, I have become con- With the leadership of Lynn Barendsen vinced of the power of a “common space” and Wendy Fischman, we have designed or a “commons.” Originally, of course, this the GoodWork Toolkit, which consists of phrase in English referred to public dilemmas that have been reported by grounds to which herdsmen brought subjects in our GoodWork study. Orga- their cattle and on which farmers planted

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their crops. If the community did not However, boutique examples are dif- Howard show restraint, the commons was soon ½cult to replicate, and in the meantime, Gardner exhausted–hence the famous “tragedy valuable opportunities may be lost. Ac- of the commons.” Conversely, if individ- cordingly, I endorse the promulgation of uals at the commons worked together to regulations and the implementation of serve the long-term needs of the larger laws that counter sel½shness and self- community, broader bene½ts resulted. centeredness, and that “nudge” people The same principles extend beyond a and institutions toward the common physical commons to the institutions and good. Recent Anglo-American history polities that link professionals and citizens reveals a sharp turn away from concern today.11 with the common good. It is high time to Within my own institution I have felt restore a better balance. I therefore sup- the pronounced need for such an intellec- port those processes and institutions that tual common space. At an institution as explicitly embrace the common good as large, well known, and closely monitored their mandate, as well as measures that as Harvard, ethical issues arise constant- can indicate whether they have con- ly. Some issues are large, some small, and tributed to greater common good. Just as most are gossiped about. Yet Harvard war is too important to be left to the gen- leadership is extremely reluctant to dis- erals, the common good is too precious to cuss these issues publicly, let alone reflect be left to the vagaries of human biology, on them and promulgate lessons learned. historical trends, or the appearance of the Meanwhile, bloggers speak very frankly occasional saint. Conscientious efforts about “silenced” issues, but they do so by ethical workers and ethical citizens to anonymously, leaving no way of deter- serve the common good deserve all the mining which claims have warrant and support that society and government can which do not. I hope that it may be possi- muster. ble to create a “commons” where members of the Harvard community can freely discuss consequential ethical issues, without fear of reprisal, and thereby perhaps discover new procedures that could contribute to the common good in other contexts. I believe in voluntarism. I admire institutions and practices that begin modestly and yet prove so compelling that they “go viral” and take on a life of their own. The educational system in Reggio Emilia exempli½es this phenomenon. The educators are far from proselytizers; indeed, they do not seek out partners or search for multichanneled megaphones. And yet since the time of Maria Montessori a century ago, no educational effort with young persons has had as much positive influence throughout the world as that put forth by the schools of Reggio.

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Reestab- endnotes lishing the 1 Commons Robin Dunbar, How Many Friends Does One Person Need? Dunbar’s Number and Other Evolu- for the tionary Quirks (London: Faber and Faber, 2010). Common 2 Good Howard Gardner, Truth, Beauty, and Goodness Reframed: Educating for the Virtues in the Age of Truthiness and Twitter (New York: Basic Books, 2012). 3 The Essentia Book of Knowledge, “The Athenian Oath,” http://www.essentia.com/book/ history/athenian.htm. 4 Kenneth Lynn, Introduction to “The Professions,” a special issue of Dædalus 92 (4) (Fall 1963): 649. 5 Howard Gardner, “In Defense of Disinterestedness in the Digital Era,” in Transforming Citizens: Youth, New Media, and Political Participation, ed. D. S. Allen and J. Light (in preparation). 6 See also Howard Gardner, Mihaly Csikszentmihalyi, and William Damon, Good Work: When Excellence and Ethics Meet (New York: Basic Books, 2001); Howard Gardner, ed., Good Work: Theory and Practice, http://www.thegoodproject.org/the-goods/books/goodwork-theory -and-practice/ 7 See, for example, Robert Putnam, ed., Democracy in Flux: The Evolution of Social Capital in Con- temporary Society (New York: Oxford University Press, 2004). 8 Robert Putnam, Robert Lenardi, and Raffaella Nanetti, Making Democracy Work: Civic Tradi- tions in Modern Italy (Princeton, N.J.: Princeton University Press, 1993). 9 Project Zero and Reggio Children, Making Learning Visible: Children as Individual and Group Learners (Reggio Emilia, Italy: Reggio Children Pubns, 2001). 10 Scott Seider, “‘Bad Things Could Happen’: How Fear Impedes the Development of Social Responsibility in Privileged Adolescents,” Journal of Adolescent Research 23 (6) (November 2008): 647–666. 11 Elinor Ostrom, “Beyond Markets and States: Polycentric Governance of Complex Economic Systems,” Nobel Prize Lecture, December 8, 2009, http://www.nobelprize.org/nobel _prizes/economics/laureates/2009/ostrom_lecture.pdf.

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The Democratic Spirit

Kwame Anthony Appiah

Abstract: There is a famous paradox about democracy: most forms of participation make no obvious difference to political outcomes and yet people act anyway. I argue that they are more likely to act politically if they have certain attitudes and commitments; and that productive attitudes of the right kind can be sustained by a culture in which two kinds of honor are central. One kind of honor is collective: it is the honor of nations, which is the concern of the patriot. Another is the honor of citizens, who are worthy of respect because they contribute to the practices that serve the republic. I suggest some practices we Amer- icans might want to take up and honor for the sake of our own republic today, drawing attention to two discoveries in social psychology that could be productively brought to bear in our political life: namely, the Ben Franklin effect and the Contact Hypothesis.

[H]ow much more pro½table it is prudently to remove, than to resent, return, and continue inimical proceedings. –Benjamin Franklin, from his Autobiography

America acts. It starts–and ends–wars, accedes to treaties, gives foreign aid, raises taxes, authorizes corporations, creates patents, de½nes and punishes crimes. It does these things in the name of the Amer- ican people, and we, the people, by way of elections, choose the legislators and executives who manage the doing of them. But we are supposed to be in- KWAME ANTHONY APPIAH , a volved in the processes of government in more ways Fellow of the American Academy than simply by voting. All governments are of the since 1995, is the Laurance S. Rockefeller University Professor people; all usually claim to be for the people. In our of Philosophy and the University democracy, we aim to be a government by the peo- Center for Human Values at Prince- ple as well. ton University. His recent books in- In this essay, I attempt to explain the relationship clude The Honor Code: How Moral between our individual acts as citizens, on the one Revolutions Happen (2010), Experi- hand, and what our country does on the other. I ments in Ethics (2008), and Cosmo- assume that, in some sense, we can act as a people, politanism: Ethics in a World of 1 Strangers (2006). His current proj- literal or metaphorical. So I want to develop a pic- ects include a book about the ture of the ways in which we individuals participate thinking of W.E.B. Du Bois and an in those collective acts. Then, with that understand- essay about the idea of “the West.” ing in place, I will argue that doing this properly

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The requires us to develop a certain political on a larger scale; but the government of Democratic psychology: a way of thinking and feeling a group that size could perhaps be con- Spirit and acting as citizens. As you will see, it is ducted by people meeting face to face, a political psychology that is by no means hearing each other’s arguments (at least standard in our country today; and I con- if you had the voice, as Aristotle puts it, of clude by suggesting some practices and Stentor, the herald “whose cry,” Homer institutions that might lead to its becom- said, “was as loud as that of ½fty men to- ing more common. gether”3). Even with the invention of the This volume explores how various insti- microphone, this is evidently inconceiv- tutions of our society help sustain democ- able for the political interactions neces- racy. In every domain there is a form of sary on our modern scale of millions. democratic stewardship that contributes How, then, to take the social psychology to this task. It involves following norms, of a creature evolved for life in minuscule some of which are speci½c to institutional communities and transfer it to the multi- roles and particular professions. I focus tudinous life of a modern nation? here on the ways in which citizens contribute as citizens to the sustenance of de- Political scientist Benedict Anderson’s mocracy and on how institutions can help well-known account of modern national- in this task. ism focuses on a central mechanism by which the nation-state takes hold of the Aristotle said in his Politics that the ideal lives of ordinary people around the world: political community, his city-state, should namely, by allowing them to think of be small enough that its citizens could themselves as participating, through their “know each other’s personal characters” shared identities as citizens, in the on- but big enough to be self-suf½cient, and going story of a vast group of strangers.4 so he recommended that it should have a As Ernest Renan, that great French histo- population “that can well be taken in at one rian and nationalist, put it succinctly well view.”2 Today, however, self-suf½ciency over a century ago: “An heroic past, great seems inconsistent with knowing each men, glory–I mean real glory–this is the other’s characters. While there are tiny social capital on which the national idea political units, like the New England town, is based.”5 What he had in mind was the where it is plausible that people really fact that stories of this glorious past were could know one another, and where a part of what linked individuals in national meeting of the people really could govern, fraternity and sorority: nations are narra- every American state and city–let alone tive communities. the United States as a whole–is bound to But there is another kind of connection be a political community of strangers. among those who share identities that has The challenge of modern politics (a chal- been less remarked upon recently. It is lenge that Aristotle did not contemplate) implied when Renan talks not just about is for strangers–people who know very the past but about “an heroic past,” about little, if anything, about each other–to “great men, glory.” For what patriotic cit- cooperate in the collective task of run- izens feel when they hear and tell those ning the republic. stories is pride. You can understand how Our social psychologies evolved in pre- that sentiment works only if you recognize historic times in the context of a social that each of us shares, through our com- life with a few score people. Aristotle’s mon national identity, in the honor of our city-state already required interactions nation . . . a privilege that comes with the

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burden of sharing in our country’s shame Patriotism is often identi½ed with love Kwame as well. To have honor is to be entitled to of country. That can’t be right: many of Anthony Appiah respect.6 If you care for your honor, you my friends love Italy, but not being Italian will want to be entitled to the respect of citizens, they can’t be Italian patriots. Love others. (Shame comes when you lose your is a sentiment you can feel for what is not right to respect: in caring for gaining and already yours. But you cannot share in the maintaining honor, you are bound to be honor of a country–or of anything else– concerned about losing it.) unless it is yours. My family, my church, The psychology of collective honor can my town, and my profession: each can be made to seem very mysterious. How bring me honor (and, alas, shame). But your can I gain or lose honor when somebody family is, from honor’s point of view, not else does something, unless I was somehow my business. Patriotism is better under- responsible for their doing it? America stood as a concern for the honor of your protects vulnerable people in Somalia. I country, your nation. This concern gives feel pride. But why? I didn’t do anything, you a serious investment in its doings, even some other Americans did. America does when, like most of us, you do not control something dishonorable at Abu Ghraib. I them. National honor can engage citizens feel shame. I feel it even though I didn’t even when they know, as policy expert do anything, even though I didn’t support Anthony Downs has insisted, that they it, even though it was something I have do not individually make the nation do or always known was wrong. Why? stop doing anything.7 They can participate Questions like these are better not an- emotionally and symbolically with a great swered in the abstract. In John Coetzee’s mass of others nevertheless, because their recent novel, A Diary of a Bad Year, the patriotism draws them into a shared ex- South African protagonist writes in re- perience. (The armed services, as the essay sponse to the evidence, published in The in this issue by Andrew A. Hill, Leonard New Yorker, that the U.S. administration Wong, and Stephen J. Gerras reminds us, sanctions torture and subverts conven- are one of the great molders of this spirit.) tions proscribing torture: But just as I cannot, on my own, affect a political outcome in most cases, so I cannot If we grant the truth of what the New Yorker steer the nation to the path of honor on my claims, then the issue for individual Amer- own. We have to ask why someone, even icans becomes a moral one: how, in the someone engaged with the nation’s honor, face of this shame to which I am subjected, should participate if, in this sense, it makes do I behave? How do I save my honor? no difference. Collective honor de½nes one Here is a reminder of how national honor of the stakes in our common life. We are works . . . and of why we should be glad that bound to care about it if we think of our- it exists. It can motivate us to see if, to- selves as Americans at all. But how can it gether, we can do what is right. The issue move us to action? We can be engaged to of torture is moral, of course; but what participate by our wish to maintain our engages each patriotic American is not individual honor as citizens: to maintain, just the morality of torture but also the that is, a right to the respect of our fellows. honor of a country that tortures. And honor, unlike moral responsibility, is some- We are governing the republic together. thing you may need to recover whether or The successful functioning of the repub- not it was your act (or culpable omission) lic depends on many citizens playing many that led to disaster. roles. Some will serve as soldiers, police

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The of½cers, civil servants, judges, or elected incumbents being removed if enough Democratic of½cials, employed to do the work that is voters are dissatis½ed, for example. And Spirit required if America is to do anything at all. replacing them has to have a prospect of Others will serve the republic from time leading to a change in actual policies. Our to time as unpaid jurors or as election of½- current system, with its partisan district- cials. The republic will work as it should ing and divided government operating only if most of the citizens who do these with parliamentary-style parties, often things think about what they are doing in does not meet these two conditions. certain ways. Even if they were met, however, the dis- Public of½cials must, for one thing, avoid cipline of the threat of removal works only using–or, ideally, even appearing to use– if voters’ choices are responsive to what the powers they are granted by their pub- elected of½cials actually do for the republic role to their private advantage. For an- lic. And that requires both: other, they must obey norms of nondis- 1) that there be reliable sources of infor- crimination. The republic can flourish with mation about their activities; and less than perfect conformity to such ideals, but certain basic standards–the rules 2) that enough of the voters pay attention against nepotism and bribe-taking, for to the information. example–are rightly enforced by the The ½rst of these conditions means that criminal law; and others–such as persis- someone has to be engaged in investigat- tent or egregious racism or sexism in the ing and reporting on public affairs, paying exercise of one’s duties–are properly attention to what is happening, deciding grounds for removal. If we do not demand what is important, and making it known. absolute conformity, we can insist on cer- So we need the free press that the First tain basic standards. And we must, or the Amendment promises us, and we need it republic will not be able to do its job: to take its function seriously. But the sec- indeed, it may degenerate into something ond condition requires that some citizens that is no better for some than tyranny. aim to vote in ways that are guided by But there is a further task that has to be that information. performed if the republic is to work. Some We can survive if some journalists don’t of us must vote. One of the major reasons care about the truth or are toadies to those why democracies are better places to live currently in of½ce. (We know we can be- than tyrannies is because we change our cause we have.) We can survive if some rulers from time to time. That disciplines voters don’t bother to vote or vote with- those who are, for the time being, exer- out knowing what the governors are doing. cising authority. An effective lifetime (This we know, too, for the same reason.) guarantee for incumbents–able, once But without a lively world of journalism they arrive, to steer the state’s resources to governed by respect for the truth, the elec- those who will continue to vote for them torate cannot do its job; and even with it, in return–exposes them to temptations only an electorate that takes notice of that that are hard to resist. journalism will be able to act together to As Norman Ornstein and Thomas Mann discipline those who rule. point out in their essay for this issue, other conditions must be met if there is to be a reasonable sense of accountability. There are, thus, many different ways in Voting districts need to be designed so which citizens can participate in the activ- that there is a reasonable chance of ity of the republic, and if enough of us do

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it well enough we will gain the advan- lar way is doing something that is morally Kwame tages of democratic elections. This kind wrong; it is, therefore, a delicate issue to Anthony Appiah of participation by ordinary citizens is identify which forms of participation, such what makes it true that the people gov- as jury service, we have the right to de- ern. The workings of the republic are, in mand, on pain of penalty. complex ways, the outcome of all these But honor comes to our rescue here. citizen acts. But that means that those who For citizen honor is not something we owe do not participate in any of these ways are to all. What we owe morally to all people free riders on the contributions of those is the respect due to their humanity, their who do. They gain the advantages of a human dignity. But how we honor each shared practice without contributing to the other as citizens is, in good measure, up to us. burdens, like a rider on a public bus who The rewards of honor can be reserved for has not paid his fare. Free riding of this those who do more than what is morally sort is, generally speaking, wrong. And it required; and we are free, looking at it the wrongs particularly those who are contrib- other way round, to impose the penalties uting their fair share. Acts of this kind tear of dishonor on those who have not done at the delicate fabric of the political bond, anything morally wrong, provided they which is, as I have already remarked, a have fallen below the standard we have bond between strangers. When members set for good citizenship. We may not have of a community fail to contribute in this the moral right to punish bad citizenship way they lose the right to the respect of with the coercive power of the state; but their fellows. And since, as I have said, honor has its own logic, and we can shame honor is basically a system of rights to those whose lapses are not moral but civic.8 respect and shame is the loss of such a In order to decide what kinds of behav- right, it is shameful. ior fall below the level that entitles you to We can demand morally that citizens citizen honor–the political respect of your who have the capacity participate in certain fellow citizens–we need some ideas about ways; and in requiring jury participation which of the many things a person can do or enrollment in selective service on pain as a citizen are required to earn citizens of penalty, we do. These legal demands are their due respect. What is the fair share of different in important ways from many the burdens of maintaining democracy others. The demands of the criminal law that each of us owes for this purpose? or the laws of torts and contracts are not Once we decided this, we could cry shame demands made on us as citizens, they apply against those who were not doing at least to all within our jurisdiction; obeying the their fair share. We should also cry shame law is not part of the business of self-gov- against those who do participate, but do ernment in the way that helping to make so in ways that are inconsistent with the the law, through politics, or administer it, norms that govern our shared life: impar- as jurors, or defend it, as police of½cers or tiality for public of½cials, truthfulness for soldiers, is. those in the media, and so on. Honor can The question, what forms of participa- operate in the life of citizens not only tion in the life of the people can we through their concern for the national demand, is harder than the question, why honor, but also through their concern for can we ask individuals to obey just laws. their own individual honor as citizens. And so it is a delicate issue whether a law- Some defections from our citizen obli- abiding citizen who is not participating gations are dishonorable because they are in the life of the republic in some particu- morally wrong, of course. They are wrong

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The because they involve a failure to contrib- sons why the Australian plan is a non- Democratic ute our fair share to the common good. starter here: one is that politicians will Spirit So those who are suf½ciently motivated probably agree only on reforms that do not by the thought that these defections are disadvantage them, and they have reasons wrong will not need the apparatus of honor both qua partisans and qua incumbents to keep them doing what they should. to fear that such a reform might make an Some defections are not morally wrong but undesirable difference (to their minds, at are undesirable nevertheless, because with- least) in the outcomes. Another is that out certain contributions, the good that those Americans who do vote think of it democracy brings will be hard to achieve.9 not just as a duty but also as a privilege: What a culture of citizen honor allows us one that you earn by choosing to exercise to do is to shape both the behavior of those it. They would likely feel that voting along- who are motivated solely by morality and side people who were there merely because the behavior of those who are motivated they had to be diminished the meaning of not even by that, using what political the- participation. orists Geoffrey Brennan and Philip Pettit Indeed, from a legal point of view, the have dubbed the “intangible hand” of so- vote is a privilege in our society: it is a right cial esteem and contempt.10 you are granted, one you are permitted to There are places–Australia, famously– exercise if you choose. Since we should par- where voting is a legal duty. For nearly sev- ticipate as citizens for non-instrumental enty years, Australia has achieved a voter reasons, adding instrumental reasons–the turnout rate over 95 percent by imposing avoidance of punishment or a monetary a small ½ne for failure to show up at the reward–may stop us recognizing the non- polls. (This is not so much mandatory vot- instrumental reasons it would be better ing as mandatory appearance at the voting for us to act on. Better, perhaps, to avoid booth; you can simply record your pres- imposing legal penalties for not voting, ence by voting for “none of the above.”) because there are reasons to think that peo- The penalty is so small–$20 (aud) if you ple will take these duties more seriously if cannot provide a reasonable excuse for they are a matter of honor, rather than failing to vote–that we might in fact see things they must do to avoid punishment this as a case where the law’s function is (or, for that matter, to gain an economic largely to express disapproval of, rather reward). than punish, those who do not vote. And so the society has effectively inculcated a So there are norms of three kinds govern- sense that voting is a civic duty.11 ing our life as citizens. First, there are moral This practice is thoroughly alien to our norms requiring participation, where non- American traditions. The response to the participation is free-riding. Second, there moderate mandates of President Obama’s are norms governing how we participate health care reform bill, for instance, sug- (if we do), which we can call norms of partic- gests that there continues to be a deep re- ipation: they rule out corruption in public sistance here to individual mandates aimed of½cials, inattention in jurors, ignorance in at public goods. But in many states, jury voters, and the like. Third, there are norms service, that other great form of citizen of citizen honor, which assign rights to re- participation in government, is enforced spect to citizens who do more than is mor- by penalties about as mild and almost as ally required in the life of the republic. effective as the Australian requirement that It is easier to give examples of citizens citizens vote. So there must be other rea- who fail to live up to the norms of partic-

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ipation than to say in general what degree avoid force, fraud, monopoly, and so on). Kwame of participation is required. This is in part There is simply no reason, though, to think Anthony Appiah because there are so many different ways that that is so in the political realm. Mem- of participating in the life of the republic bers of racial and religious majorities will as citizens. On the one hand, it is obvious often be able to combine to allocate pub- that many in our news media today are lic goods in biased ways. It will be in their shamefully uninterested in the truth; but individual self-interest to do so. But in our on the other hand, those editors and jour- system of government we are committed, nalists who are doing their work consci- through the Bill of Rights and the Civil entiously might reasonably say that they War amendments, to the federal govern- will not vote. We know that we tend to ment’s not doing that. This means that become “invested” in people we vote for, the courts are empowered to reject legis- thus making it harder to see their faults. lation that is biased in these ways. But Maybe, then, an editor of a website that it also means that citizens committed to covers politics might refuse to vote as an these values will not vote for of½cials who act of citizenship, in order to protect his want to pass such legislation or execute it. or her mental independence. In this case, We ought to be protected from religious or a citizen deserves to be honored for re- racial discrimination not just by the courts fraining from voting. Thoughtful absten- but also by each other. tion can be one honorable way of partici- Citizens ought to vote for people and pating in the life of the republic. policies they believe to be just. There is There are other cases. I think, for exam- nothing wrong in considering your own ple, we should respect citizens who fail to interest, where justice permits it. But be- vote because they genuinely cannot see, cause there is no hidden hand argument after looking into the matter, which can- for politics as there may be for the econ- didate (or, in a referendum, which posi- omy, a society of people who vote only tion) is right. More generally, because there their own interest will be extremely lucky are so many forms of citizen participation if it flourishes. Morality requires that you and because citizens differ in what they act in ways that contribute your fair share have to contribute, there is a great variety to the functioning of the republic. We of ways of contributing responsibly, as a decide “fair share” by asking whether, if citizen, to government by the people. everyone did only what you are doing, the republic would work. If not, you are not Even if you are well informed about what doing your fair share. the government is doing, you will not vote as a good citizen unless you use that infor- But how should citizen voters conduct mation responsibly. And the same ideals themselves when they are not voting, when of equality and mutual respect that gov- they undertake those acts that prepare ern the behavior of citizen-of½cials ought them to vote and that contribute to the to play a role there, too. The republic is sup- social and cultural conditions that allow posed to be a pact for the common good. our democracy to work well? That, at least, When I vote, I am not supposed to be is the behavior we should honor; we can looking only after my own interest. In the only require the behavior that we need of economy, it is possible that a hidden hand everyone if the system is to work at all. produces the best results if we each aim What is needed will depend on the na- only for our own interests (under the le- ture of the republic and its situation. Our gally enforceable constraint that we must republic, for example, is religiously, ethni-

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The cally, and politically diverse.12 One psy- our shared participation in the life of the Democratic chological resource amid a diversity of republic will go better if we treat each Spirit political views is to remind yourself of an other with respect. (Morality commends important truth: it is just possible that treating each other with respect, too. But I sometimes the other person is right. want to draw attention to a civic argument Intellectual humility–what philosophers for respectful conversation.) An uncivil call fallibilism–is grounded in the fact atmosphere makes deliberation, compro- that it is unlikely that God (or the Uni- mise, and the development of consensus verse) showed a special preference for me –all of which are necessary in a diverse and mine in portioning out the capacity polity–extremely hard. to make sense of the world.13 Time and A second reason for civil discourse is again, people are utterly con½dent that that in politics, what is best depends on they have the right view. In retrospect, we what people happen to want; the bond often see that they were wrong. There is for the football stadium is good only in a no reason to think that we will prove in- world where enough people in my city fallible when our grandchildren look back care about football. The best way to learn at us.14 that is to hear what they have to say. Peo- Not only is it hard to make sense of the ple may not know what they really want, world in general, we are likely to have and they may have reason to mislead us especial dif½culty in comprehending the about what they want. But hearing them world of politics in particular, where good say what they want and why is the begin- policy depends on a multitude of facts, ning of understanding their desires. many of them hard to discern, and on val- The need for respect suggests a habit of ues that are hard to weigh against each mind in which we assume the best of one other. In these circumstances, it seems only another–not, as is so common today, the wise to listen carefully to the views of other worst. Someone believes that the state citizens who disagree with us. If we do so, should continue to recognize heterosexual we may learn of our own errors, just as marriages but not same-sex ones. I think they could share in our insights if they lis- this is a mistake. How should I respond? tened to us. It is, of course, possible that this individual Fallibilism has its enemies. Robert Frost is motivated by simple bigotry. But it is once said that a liberal is “someone who also possible that he has reasons and that can’t take his own side in a quarrel.”15 if I attend to these reasons, I will change This is the critique of someone worried my mind or may be able to respond to the about too great a willingness to hear the arguments in ways that will change his other side. But it is a mistake to think that mind. None of that can happen if each of you cannot have the intellectual humility us starts with the assumption that the other that fallibilism teaches, with its willing- is bigoted, or evil, or foolish. ness to entertain the possibility that you This discussion must involve more than are wrong, and still proceed seriously with rigorous argumentation, the assembling the commitments that survive the test of of evidence and the gathering of reasons. argument. To recognize that I might be It requires take as well as give. My mother wrong is not to declare that I am. taught me this when I was young. “Your In any case, there are reasons for listen- grandfather,” she said, “thought that if he ing carefully to the views of our fellow made a convincing argument, the other citizens that go beyond the fact that we party would come round to his view. But are likely to learn from them. One is that what usually happened was they just won-

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dered what had hit them.” People care to end by considering some of the possible Kwame be heard as well as lectured to. And they institutional responses. Anthony Appiah care about the attitude with which we address and listen to them as well as Benjamin Franklin, in his Autobiography, about what we say. It is an old discovery tells the story of how he gained the favor in politics that people who have been of “a gentleman of fortune and education,” heard–those who have been given voice– not by paying him “any servile respect,” will accept outcomes that they do not but by asking him a small favor. He ends prefer.16 That the granting of voice shows with a maxim: “He that has once done you respect is one reason. But so is the fact a kindness will be more ready to do you that seeing your opponents as reasonable, another, than he whom you yourself have even if mistaken, human beings makes it obliged.”18 (More than a century earlier, easier to accept (what you think of as) the French writer Rochefoucauld, in his their errors. Maxims, notes a sort of negative corollary Political scientist Diana Mutz has re- of this: “We may forgive those who bore viewed a great deal of evidence showing us,” he said, “we cannot forgive those that “exposure to oppositional viewpoints” whom we bore.”19) These thoughts reflect the fact that what we feel about people increases awareness of the rationale for op- depends on how we behave toward them, positional views, enriches awareness of one’s just as often as the other way round.20 own rationales for positions, and enhances Social practices that encourage fellow- individuals’ tolerance; those with more feeling begin by treating others well. positive views toward conflict–a sense Another piece of social psychological that disagreement is an important and wisdom reflects a connected point. The acceptable part of democratic dialogue– Contact Hypothesis, proposed by Gordon learn even more.17 Allport in the 1950s, tells us under what Unfortunately, as she also argues, people conditions contact between members of who regularly discuss politics with those two groups will create positive or nega- they disagree with tend to be less inclined tive attitudes. Allport offered a long list to participate in political life. In order to of factors that could make a difference, avoid discourtesy to those we disagree but one general conclusion was that regu- with, we tend to withdraw from political lar contact in collaborative activities, on engagement. It looks as though preparing terms of rough equality, tended to make yourself for responsible political partici- for better attitudes. This is surely one of pation will make any kind of participa- the mechanisms that have produced a tion less likely. new generation of young people in our When we notice problems of political country who do not share the older prej- psychology such as these, we can respond udices against lesbian and gay people. in two ways. First, we can try to imagine They have grown up sharing their world institutions that reshape our responses; with openly gay people. It is the reason second, we may use the very facts about why white politicians otherwise as differ- ourselves that we have learned to try to ent as Bill Bradley and Jack Kemp, who motivate ourselves. I commend the second engaged in professional sports when they strategy to each of my readers. Remember were young, are active advocates of racial that as you enrich your understanding of justice. Their collaboration with their black others you may be tempted to withdraw teammates on terms of rough equality from participation. Resist. But I want to shaped their attitudes when young.21

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The The Ben Franklin effect and the Con- ful than bigotry of other kinds. As Franklin Democratic tact Hypothesis suggest ways of interacting says in the passage that provides my epi- Spirit with fellow citizens of diverse identities– graph, “[H]ow much more pro½table it is including the political identities of con- prudently to remove, than to resent, return, servative, liberal, moderate, independent, and continue inimical proceedings.” Democrat, Republican–that are very dif- If this is the political temperament that ferent from those that actually obtain in will make the republic work, we need to many places in our country today. If we encourage it through a culture of citizen are to have the positive attitudes toward honor that displays its esteem for produc- our fellow citizens that are necessary to tive participation. We can begin by thank- make our institutions work best, we need ing our fellow citizens who do these to work and play together across the things. We can hope for media that pro- boundaries of our identities. A rich asso- vide a forum for civil deliberation, respect- ciational life in our communities, bind- ful of the truth. And we can raise our chil- ing us together across political identities, dren, in schools both public and private is something that we know is a powerful as well as at home, to understand the civic resource.22 The soccer league, the value of civic engagement and to under- choral society, and the drama club turn take it in the right spirit. This is more than out to be worth participating in for rea- a matter of what we say to them in class sons beyond their intrinsic satisfactions. or around the dinner table. It is a matter of what we get them to do. The habit of We need to recognize the merits of de- respectful attention to others can be taught veloping these attitudes and taking part through exercises (like high school debate) in these activities. But how can we rein- in which students are required to mount force our commitment to them and teach defenses of positions they do not share; them to the young? I suggest we heed to give an account of arguments made by Franklin’s great insight: we should treat others; and to imagine the world from each other better so we can feel better points of view other than their own. As about one another. We should begin by Andy Stern shows in his essay in this vol- developing a civil public culture in which ume, unions can be another site of such we address both those we agree with and civic education. Religious institutions, too those we disagree with in a more courte- –church, meetinghouse, mosque, syna- ous way. Civis, in Latin, means citizen: gogue, and temple–can also practice and civility is the demeanor citizens owe one endorse the democratic spirit. another. We should not only engage in To engage with one another as fellow the exercise of trying to make the best citizens we also need a shared knowledge sense of the opinions of our opponents, of the institutions of the republic and their we should actually spend time with peo- history, as well as an ability to understand ple of different political identities, doing discussions of the economy. And since the nonpolitical things and taking advantage conduct of foreign policy requires judg- of the truth of the Contact Hypothesis. ments about the whole world, it seems We have spent a half-century learning to reasonable to ask those who participate escape from the bigotries of race, gender, in political deliberation to have a basic religion, and nationality; political bigotry familiarity with global history and geog- –irrational hatred or contempt for those raphy, too.23 This knowledge will come on other parts of the political map from only from a proper education in history ourselves–is no more creditable or help- and civics; but the habits of mind that I

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have sketched are exactly those that are virtual, if not the actual, company of fel- Kwame taught through education in the humani- low citizens we disagree with is part of the Anthony Appiah ties and the social sciences. Interpreting equipment of a modern citizen. texts, analyzing arguments, engaging imag- One of the great bene½ts of a stable po- inatively with ½ctional worlds and with litical system is that citizens do not have other places and times, and reflecting to spend all their time worrying about together on our moral responsibilities: politics.24 A free society leaves you time these are the methods of anthropology, for private pursuits. These ideals of par- history, literature, and philosophy. And ticipation and engagement may seem to though we should learn these things in ignore that important point. But most school, and deepen our understanding of Americans spend some time everyday them if we go to college, both the knowl- watching television or reading blogs; edge and the habits of mind can be re- most have discussions sometimes, at work inforced through the media and in our or recreation, about political life. Many practices of public deliberation. of us are already committed to these min- The proliferation of Web-based media imal forms of participation. I have only that gather the like-minded into circles of been commending ways of improving mutual admiration is an obstacle to de- that participation. And all our citizens veloping the habits of thought that I have should be given a high school education in mind. But it also provides opportunities. that offers them the knowledge and helps While it is often painful to listen in on the develop the temperament I have described. conversations in these online enclaves– even when they purport to represent the One ½nal thought: these remarks about part of the political spectrum where you the practices and attitudes that I believe yourself think you lie–they do offer us a offer hope for our lives as a people man- chance to learn how the world looks from aging a democratic republic together are elsewhere. Understanding even those who offered in the modest, fallibilist spirit that will not engage with us is part of the chal- I have urged on all of us. In our shared life lenge of managing the republic together. as a political people, our citizen conversa- A commitment to spend some of the time tion is ongoing. No one has the last word. we devote to thinking about politics in the

endnotes 1 For an interesting exploration of these issues, see Christian List and Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (Oxford: Oxford University Press, 2011). 2 “The activities of the state are those of the rulers and those of the persons ruled, and the work of a ruler is to direct the administration and to judge law-suits; but in order to decide questions of justice and in order to distribute the of½ces according to merit it is necessary for the citizens to know each other’s personal characters, since where this does not happen to be the case the business of electing of½cials and trying law-suits is bound to go badly; hap- hazard decision is unjust in both matters, and this must obviously prevail in an excessively numerous community. . . . It is clear therefore that the best limiting principle for a state is the largest expansion of the population, with a view to self-suf½ciency that can well be taken in at one view”; Aristotle, Politics, Book 7, chap. 4, trans. Harris Rackham; available at http:// www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.01.0058%3Abook=7% 3Asection=1326b.

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The 3 Homer, The Iliad, Book V, trans. Samuel Butler; available at http://classics.mit.edu/Homer/ Democratic iliad.5.v.html. Spirit 4 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London & New York: Verso, 2006). 5 Ernest Renan, Qu’est-ce qu’une nation?: Conférence faite en Sorbonne, le 11 mars 1882, 2nd ed. (Paris: Calmann-Lévy, 1882), 26. 6 Kwame Anthony Appiah, The Honor Code: How Moral Revolutions Happen (New York: W.W. Norton, 2010). 7 Thus “Downs’s Paradox”: even if you have taken the time to decide which candidate or party will better serve the public interest, because voting takes time and effort, a person concerned to act to maximize the expected value of what she does has no reason to do it. See Anthony Downs, An Economic Theory of Democracy (New York: Harper and Row, 1957). 8 See Appiah, The Honor Code, chap. 5. 9 You could say that the fair share of non-contributors is nothing when things are going well. What is needed is enough participation and no more. If that is right, then there is nothing wrong with jumping the subway turnstile. But it is not obvious that our democracy is working as well as it could if more people participated in the right ways. So even if you are tempted by this thought, you ought to want people to be doing more than they are. 10 Geoffrey Brennan and Philip Pettit, The Economy of Esteem: An Essay on Civil and Political Soci- ety (New York: Oxford University Press, 2004). 11 I’m grateful to Norm Ornstein for helping me frame this point. The Australian Electoral Commission website states: “What happens if I do not vote? Initially the Australian Elec- toral Commission will write to all apparent non-voters requesting that they either provide a reason for their failure to vote or pay a $20 penalty. If, within 21 days, the apparent non- voter fails to reply, cannot provide a valid and suf½cient reason or declines to pay the penalty, then prosecution proceedings may be instigated. If the matter is dealt with in court and the person is found guilty, he or she may be ½ned up to $50 plus court costs”; http://www .aec.gov.au/faqs/voting_australia.htm#not-vote. 12 It is, I think, less diverse in these ways than we sometimes imagine: there is more agreement in the background than we notice when we focus on our disagreements. But it is diverse nevertheless. See my discussion of this issue in Kwame Anthony Appiah, “The Multiculturalist Misunderstanding,” The New York Review of Books, October 9, 1997, 30–36. 13 Many Americans have a thought like this in those moments when others ask God to bless America: they recall that God is the God of the universe and is unlikely to care more for us than for everyone else. So blessing America cannot mean denying blessings to others. 14 Kwame Anthony Appiah, “What will future generations condemn us for?” The Washington Post, September 26, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/ 09/24/AR2010092404113.html. 15 Quoted in Harvey Shapiro, “Story of the Poem,” The New York Times Magazine, January 15, 1961. Frost continued: “and I am not like that.” 16 Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge, Mass.: Harvard University Press, 1970). 17 Diana C. Mutz, Hearing the Other Side: Deliberative versus Participatory Democracy (New York: Cambridge University Press, 2006). This summary is from Jan E. Leighley, “Review of Hear- ing the Other Side: Deliberative versus Participatory Democracy by Diana C. Mutz,” Political Psy- chology 28 (4) (August 2007): 499–500. 18 Benjamin Franklin, The Autobiography of Benjamin Franklin (New York: Bantam, 1982), 125. As a result, this phenomenon is known to social psychologists as the Ben Franklin effect.

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19 “Nous pardonnons souvent à ceux qui ennuient; mais nous ne pouvons pardonner à ceux Kwame que nous ennuyons”; François duc de La Rochefoucauld, Réflexions ou sentences et maximes Anthony morales, Maxime 304 (Kindle edition). Appiah 20 This is a prediction of cognitive dissonance theory, as ½rst proposed in 1956 in Leon Festinger, Henry W. Riecken, and Stanley Schachter, When Prophecy Fails: A Social and Psychological Study of a Modern Group that Predicted the Destruction of the World (London: Pinter & Martin, 2008). 21 Gordon W. Allport, The Nature of Prejudice: 25th Anniversary Edition (New York: Basic Books, 1979), 261 et seq. 22 Robert D. Putnam, Robert Leonardi, and Raffaella Y. Nanetti, Making Democracy Work: Civic Traditions in Modern Italy (Princeton, N.J.: Princeton University Press, 1994). 23 This essay is about democracy in America. In Cosmopolitanism: Ethics in a World of Strangers (New York: W.W. Norton, 2006), I defend the view that we can be good citizens both of our country and of our world–in other words, cosmopolitan patriots. 24 If you grew up, as I did, with a father who was imprisoned for his political beliefs, you cannot help but be conscious of this fact.

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Chair of the Board Louis W. Cabot President Leslie Cohen Berlowitz Secretary Jerrold Meinwald Treasurer Robert P. Henderson Chair of the Trust Louis W. Cabot Chair of the Council Gerald Early Vice Chair of the Council Neal Lane Editorial Advisor Steven Marcus

Inside back cover: A printing of the U.S. Constitu- tion, believed to have been printed immediately following the printing in Dunlap and Claypoole’s Pennsylvania Packet on September 19, 1787, in Philadelphia. Image courtesy of the Library of Congress, Rare Book and Special Collections Division, Continental Congress & Constitutional Convention Broadsides Collection. Cover_Spring 2013_Feb 27_Preamble Only_Brown text_New box 3/18/2013 10:05 AM Page 2 Cover_Spring 2013_Feb 27_Preamble Only_Brown text_New box 3/18/2013 10:05 AM Page 1 Dædalus coming up in Dædalus: