Democracy Part XVII: On the Legislature as an Aggregation of Interests and the Role of the Electorate in Representative Democracies

Some of the best contemporary political theory is being developed by those without oblivious to the role they play. A very real sense of both the source and content of modern political theory of representative government in the United States was much in evidence in a recent report circulated in that influential news periodical--Time Magazine. Karen Tumulty, Health Care Reform After Kennedy: A Scaled Back Bill, Time Magazine, Aug. 28, 2009. The story is focused on an issue of the day: "So what effect will his passing have on the prospects for health reform? Will his mourning colleagues suddenly be inspired to put aside their long-standing partisan and ideological differences, to get it done as a tribute to him, with the bill named in his honor, as many have suggested?" Id. But in seeking answers to that question, the article posits a fairly sophisticated and interesting insight into the nature of democratic political organization in the United States:

Another problem with trying to write a scaled-back bill is that so many elements of health reform are interconnected, politically and substantively. Take, for instance, the so-called individual mandate — a requirement that people buy coverage if their employers do not provide it (and the proposed employer mandate to require most employers to provide it is one of the things most likely to be jettisoned). Making an individual mandate work requires subsidizing people who could not buy insurance on their own, and that is expensive. Cut the subsidies and the mandate back too far, and insurance companies — deprived of the millions of new paying customers promised under broader proposals — could end their support of the deal, which would include new requirements that they sell affordable policies to people with pre-existing conditions. Id.

Now buried in the strategic angle that is the object of the analysis are insights about the organization of power around the representative organs of the American state apparatus that suggests the ways in which the legislature might be representative--but of organs of powerful stakeholders as well as a politically diffuse and passive electorate. It appears that health care reform requires the support not so much of the electorate as of the stakeholders whose interests will be affected by the way in which the measure is constructed. It appears that the insurance interests have something like a veto on the shaope of the legislation. Perhaps for that reason the legislature was less free to consider alternatives that might have cut the insurance industry out of the picture. But that unity of interests between insurance companies and the apparatus of state is also incestuous--the United States government has invested heavily in the business and operations of the insurance industry, especially since the start fo the economic crisis. And so, it is possible to conclude that minding the interests of the insuranec industry is tantamont to minding the commercial (indirect) interests of the state apparatus.

Of course, the polity still matters, in a sense. The legislature is mindful of current public opinion. "But support for the entire exercise is dropping in the polls, especially among independents and older Americans. Increasingly, Democrats are talking privately of the need for a big September relaunch." Id. And, indeed, for many, the story represents nothing more than business as usual and therefore nothing of interest as theory. American politics has always been dominated by a theory of the polity as both passive reactive. It has also become comfortable with the notion that stakeholders other than the electorate ought to be influential in the process of shaping policy and legislation. All sectors of American society is more or less comfortable with the idea that such stakeholders, like anyone else, is free to engage in the sort of activities that might mold the opinion of the polity and its expression at the polls form time to time. Americans have even become comfortable with the idea, as a sort of applied mass politics theory, of the use of polls as a substitute for elections to determine the willingness of legislators to engage in political activity.

All of this is the ordinary stuff of American mass politics applied. But what represents an advance is the willingness to abandon the nice formal veil between stakeholders and the legislature itself. It appears that stakeholders, like the insurance industry, now has a more open and formal place in the negotiation over the direction and scope of legislation. Communities of interest now move one step closer to recognition as independent members of the political community. Bolivia has already recognized the constitutional role of communities within its system. See Larry Catá Backer, Democracy Part VII: Constitutionalism and Indigenous Peoples in the Bolivian Constitution, Law at the End of the Day, Dec. 9, 2007. Perhaps Americans are moving in that direction as well. Now that is an advance in theory worth exploring.