Madison on the Trouble in Madison

By Mike Dorf

Any number of left-leaning commentators have opined that Wisconsin Governor Scott Walker's real aim in attempting to curtail the collective bargaining rights of public employee unions is to break the political power of the unions.  According to this conspiracy theory, the corporate and other moneyed constituencies that support Walker want to bust the unions to curtail their political power so that the unions can no longer act as much of a counterweight.  Paul Krugman set out a version of this story in a February 20 op-ed and I'm inclined to think he is onto something.  But regardless of whether the political effects of union-busting efforts are the underlying motivation for those efforts or mere side-effects, they are harmful to the health of the political system overall.

The most far-sighted work of political science of the Founding Generation was James Madison's Federalist No. 10, in which he both warned of the danger of a political faction coming to dominate politics and offered the design of the Constitution as a solution.  The danger was that factions--what we call "special interests" today--would come to dominate politics and use public power to oppress minorities rather than for the public good.  To be sure, the most salient example for Madison and the framers were factions consisting of debtors who took the reins of power in some of the post-Revolutionary States to pursue easy-money policies that devalued the property of the creditor class.  But the diagnosis applies much more broadly: democratic government is susceptible to capture by rent-seeking factions, whether they are public-employee unions (as folks like Scott Walker would contend has happened in Wisconsin) or mega-companies (as Walker's critics would argue is the real story).

What is the solution?  In Federalist No. 10, Madison said that the risk of factional control of the government is less likely at the federal level than at the state level because the federal government is larger.  He wrote:

Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Federalist No. 10 thus offered reasons to disregard the worry that the federal government would be especially subject to capture, but it offered little to assuage the worry that Madison himself raised: that State governments were likely to be subject to capture by special interests.  Madison had an answer to part of that problem: he wanted the core of the original Bill of Rights to apply to the States as well as the federal government.  His original proposed Bill of Rights included the following provision: "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."  Congress did not include this proposal in the package of provisions that eventually became the Bill of Rights, and it was not until the middle of the twentieth century that the Supreme Court would hold that most of the provisions of the Bill of Rights applied against State actors, as a consequence of their "incorporation" via the Fourteenth Amendment.

Thus, today, the federal Constitution places some limits on the ability of state factions to impose their will on minorities, but the Constitution leaves a great deal of room for pernicious legislation.  To mitigate that sort of evil, we must rely on the logic of Federalist No. 10 itself, however attenuated it is at the State level.  That is to say, we must hope that when one rent-seeking special interest attempts to bend government to serve its ends, it will be thwarted by another powerful special interest.  For some years now, organized labor has served this function as a counterweight to the rent-seeking behavior of corporate and other moneyed interests.  It was hardly a perfect counterweight because on some issues, labor interests and corporate interests aligned together against the broader public interest: Consider that both the auto manufacturers and the auto workers' unions have tended to oppose environmental policies that they regard as bad for the auto industry.  But if labor was only ever an imperfect counterweight, at least it was a counterweight.  The current efforts to reduce labor's power, if successful, will thus further skew our politics away from the public interest.