The Puzzling Absence of Economic Power in Constitutional Theory

Cornell Law Review Volume 101 Issue 6 September 2016 Article 2 The Puzzling Absence of Economic Power in Constitutional Theory Ganesh Sitaraman Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Ganesh Sitaraman, The Puzzling Absence of Economic Power in Constitutional Theory, 101 Cornell L. Rev. 1445 (2016) Available at: http://scholarship.law.cornell.edu/clr/vol101/iss6/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized editor of Scholarship@Cornell Law: A Digital Repository. For more information, please contact . \\jciprod01\productn\C\CRN\101-6\CRN602.txt unknown Seq: 1 19-SEP-16 16:09 THE PUZZLING ABSENCE OF ECONOMIC POWER IN CONSTITUTIONAL THEORY Ganesh Sitaraman† Six years after the financial crash, disparities in economic power are at the forefront of popular debate. Political leaders increasingly express a growing popular sentiment that “the system is rigged” to work for wealthy and corporate interests who have the means to buy influence through campaign funding and then sustain their influence with “armies of lobbyists” in Washington. In a battery of studies over the last decade, political scientists have confirmed populist suspicions and demonstrated that economic elites dominate the American political system. Their findings operate across all areas of policy, and they provide systematic empirical evidence that political influence is tilted in favor of the wealthiest members of American society. With rare exception, however, the power of economic elites—and the empirical evidence for this power—has been largely invisible from macro-level contemporary debates in constitutional theory. Most of the time, constitutional theorists have in mind a more optimistic view of American politics that both undergirds and serves as an aspiration for their approach to constitutional theory and design. Republicans focus on deliberation toward the public good. Pluralists celebrate (or fear) group participation. Some worry about protecting minority rights from majoritarianism; others criticize the undemocratic structures within the constitutional system. And recently, there have been efforts to bring greater political realism to constitutional theory, particularly by focusing on the intersection of partisan affiliation and constitutional structure. What is puzzling, however, is that none of these approaches engage directly or systematically with the power of economic elites in American politics. And yet, none of these approaches † Assistant Professor of Law, Vanderbilt Law School. Thanks to Ed Cheng, Einer Elhauge, Dan Epps, Barry Friedman, Willy Forbath, Brandon Garrett, Heather Gerken, Jeremy Kessler, Daryl Levinson, Bill Marshall, Jon Michaels, Martha Minow, Doug NeJaime, Dave Pozen, Richard Primus, Richard Re, Morgan Ricks, Shalev Roisman, Elizabeth Sepper, Chris Serkin, Dan Sharfstein, Suzanna Sherry, Reva Siegel, Kevin Stack, Nick Stephanopolous, and participants in the Harvard Public Law Workshop and the UCLA Faculty Works in Progress Colloquium. Special thanks to Macy Cullison, Mary Fleming, Sean Hastings, Laura McKenzie, and Eric Mills for excellent research assistance. 1445 \\jciprod01\productn\C\CRN\101-6\CRN602.txt 1446 unknown Seq: 2 CORNELL LAW REVIEW 19-SEP-16 16:09 [Vol. 101:1445 can be truly successful—even on their own terms—without grappling with the realities of economic power. Contemporary constitutional theory needs to be rooted in a more realistic description of the American political process. This Article first argues that leading debates in constitutional theory have failed to engage with the reality of elite economic domination and that without taking into account the role economic elites play in American politics, these theories have serious limitations even on their own terms. Second, it shows that any attempt to design institutions to account for the influence of economic power will face persistent, pervasive, and perverse problems. A central task of constitutional theory going forward must be to overcome or at least mitigate these stumbling blocks. Third, it provides a conceptual framework of possible, albeit imperfect, design options for mitigating elite economic domination. There are a variety of design strategies for grappling with economic power, which cover a wide range in both plausibility and efficacy. Given the persistent problems involved in mitigating the influence of economic power, it is not likely there will be any one single “solution.” Constitutional theory will instead need to consider a secondbest approach in which multiple suboptimal strategies are adopted, in hopes that the system as a whole is relatively desirable. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1447 I. THE REALITY OF ELITE ECONOMIC DOMINATION . . . . . . . 1455 A. Preferences and Participation . . . . . . . . . . . . . . . . 1457 B. “Democracy by Coincidence” . . . . . . . . . . . . . . . . . 1461 C. Theories of American Politics . . . . . . . . . . . . . . . . 1465 II. THE PUZZLING ABSENCE OF ECONOMIC POWER IN CONTEMPORARY CONSTITUTIONAL THEORY . . . . . . . . . . . . 1466 A. The Relevance of Economic Power for Constitutional Theory . . . . . . . . . . . . . . . . . . . . . . . 1467 B. Economic Power and the Madisonian Design . 1471 C. Contemporary Constitutional Theory . . . . . . . . . 1477 1. Interest Groups and the Countermajoritarian Difficulty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1477 2. The Undemocratic Constitution and Popular Constitutionalism . . . . . . . . . . . . . . . . . . . . . . . . 1482 3. Political Parties and Partisanship Theories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1488 D. The Historical Origins of Economic Power’s Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1491 III. THE PERSISTENT PROBLEM OF ECONOMIC POWER IN CONSTITUTIONAL THEORY . . . . . . . . . . . . . . . . . . . . . . . . . . 1494 R R R R R R R R R R R R R R \\jciprod01\productn\C\CRN\101-6\CRN602.txt 2016] unknown Seq: 3 19-SEP-16 PUZZLING ABSENCE OF ECONOMIC POWER 16:09 1447 A. The Inside-Outside Problem . . . . . . . . . . . . . . . . . 1495 B. The Hydraulic Problem . . . . . . . . . . . . . . . . . . . . . . 1498 C. The Paradox of Process . . . . . . . . . . . . . . . . . . . . . . 1500 D. The Aristocratic Selection Effects of Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1502 E. The Hazards of Entrenching Economic Class . 1505 IV. THE IMPERFECT POSSIBILITIES FOR INSTITUTIONAL DESIGN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1506 A. Countering Economic Inequality . . . . . . . . . . . . . 1508 1. Regulation, T (...truncated)