Democracy and Voting

By Rob Richie and Elise Helgesen. Richie is executive director and Helgesen is a democracy fellow at FairVote, a nonprofit organization promoting voting rights and electoral reform.

This November’s presidential election will present a stark choice between President Barack Obama and a Republican challenger, and voter turnout analysts predict a decline in voter turnout from our 62 percent turnout of eligible voters in 2008.

Voter motivation is one reason why American turnout lags behind that of many nations. Most Americans experience limited choice and a relatively low chance of electing strongly favored candidates. For example, in 2010 only one in four eligible voters elected a Member of the U.S. House of Representatives (what we call “the Representation Index”). In contrast, in Denmark’s last elections, nearly five in six eligible voters elected representatives to its national legislature from an array of choices, voter turnout was more than 85 percent, and its system of proportional representation led to more than 95 percent of voters electing their preferred choice.

Our broken voter registration system is a more direct barrier to participation. In fact, if every single registered voter participated this November, we still would trail many nations in turnout. According to a new study by the Pew Center on the States Election Initiatives, of some 220 million eligible American votes, more than 50 million aren’t registered to vote. Another 24 million voter registrations have serious data problems that could block or interfere with voting.

It won’t take rocket science to ensure that every eligible voter is registered to vote and that all ineligible voters are not. What we need is a national commitment to take on the challenge, some start-up resources and smart use of existing databases. Other countries continue to modernize their systems, with international norms for voter registration rates typically well above 90 percent of eligible voters.

Two nations provide recent examples of how it can be done. Chile last month adopted a law designed to register all eligible voters automatically. In its last presidential election in 2010, nearly a third of Chile’s 12 million voting-age citizens weren’t registered. With the new law, more than 4.5 million voters, mostly young adults, will be added to the voter rolls.

By Jeffrey D. Clements, the co-founder and general counsel of Free Speech for People and founder of Clements Law Office, LLC. Clements is author of the new book Corporations Are Not People, which explores the disastrous impact of the Citizens United opinion on democracy and proposes a constitutional amendment to restore government to the people.

As the nation increasingly embraces the constitutional amendment solution to Citizens United v. FEC, a new proposition regarding so-called “corporate personhood” is emerging. It’s a proposition, which the notorious Citizens United decision actually had nothing to do with.

Last week, for example, my friend Kent Greenfield cast a skeptical eye, in an op-ed for The Washington Post, on the “anti-corporate activists” who support a constitutional amendment to reverse Citizens United. (My own view competed the next day in a Boston Globe op-edwith Congressman Jim McGovern, the lead sponsor of the People’s Rights Amendment.)

As an initial matter, no one should assume that the 79 percent of Americans who favor a constitutional amendment to reverse Citizens United are “anti-corporate,” whatever that means. After all, 1,000 business leaders have called for a constitutional Amendment, as have legal scholars, lawyers, former state attorneys general, serving attorneys generals, dozens of cities and town representative bodies and millions of Americans.

The argument that corporations in fact are “people” under the Constitution, or at least that we ought to continue the tacit amendment of the Constitution that pretends that they are, at least has the virtue of frankness. Less credible, is the argument that Citizens United and the larger “corporate speech” theory under the First Amendment is not really about corporate rights at all, but merely about protecting associational rights of people.

Professor Greenfield argues that the Supreme Court in Citizens United got “the result” wrong but at least it asked “the right question.”  No, the Court got the result wrong because the Court asked the wrong question. The actual question before the Court in Citizens United should have been the question posed by a challenge to the corporate regulation component of the federal Bipartisan Campaign Reform Act (BCRA) – Can Congress create different election spending rules for human beings than for corporations?