Perhaps more than any other political phenomenon, incumbents’ capture of political institutions through the manipulation of the rules of the electoral game has commanded the attention of scholars of the law of democracy in recent years.
At no time since the Populist and Progressive Eras has the confidence in America’s electoral process been so low. Just as those movements agitated in favor of an expanded franchise, nonpartisan elections, and the direct election of senators, current reformers have set their sights on term limits, the campaign finance system, and the mechanics of voting. Thus, it seems apropos to explore the link between one of the achievements of the earlier era, the voter initiative, and the uneven adoption of contemporary reform.
With the Bipartisan Campaign Reform Act (“BCRA”) of 2002, Congress enacted the most sweeping reform of the federal campaign system in nearly thirty years. Commentators hailed the bill as the “most far-reaching and controversial attempt to restructure the national political process in a generation” and as the answer to Americans’ demand for reform “in order to reclaim the power of their voices and their votes.” When the Supreme Court endorsed virtually the entire bill as constitutional in McConnell v. Federal Election Commission, it set the stage for the 2004 election, the first to be held under the new campaign rules.
Persistently low voter turnout in the United States continues to disappoint lovers of democracy. When scarcely half of the population of eligible voters turns out for a presidential election once every four years – to say nothing of midterm congressional elections or local elections – it becomes difficult to defend American democracy as truly representative. Instead, the will of the active voters, who constitute a stark minority of the eligible voting population, ultimately determines the electoral outcome. This regrettable situation is not the essence of a participatory democracy.
Although low turnout might easily be blamed on an American electoral lethargy, it could also be understood as a failure of the American electoral structure to motivate voter turnout. Accepting that premise as fact, it becomes possible to treat declining voter turnout as an opportunity to reconsider what has until now been a staple of American democracy: voluntary voting.