American democracy is up for sale, and it’s a warning to us all

The remarkable public intellectual Michael Sandel has lectured on both sides of the Atlantic about the marketisation of many aspects of contemporary society, from the supply of human organs for transplantation to the provision of clean water. The latter is a good example of the market replacing “the commons”; free public access to clean drinkable water was one of the great achievements of the Victorian age in Britain. But the market has now trumped democracy itself, at least in the country of its greatest practitioner, the United States.

By the end of June this year, according to the Federal Election Commission, which oversees federal elections for the presidency and for the US Congress, $388m (£250m) had been contributed to the campaigns of presidential candidates for the 2016 electoral cycle. Almost half of the total came from just 400 wealthy donors and their families. Jeb Bush, brother of the former President George W Bush, has already raised $163m.

Even candidates without such august connections can raise very substantial sums. Popular Tea Party leader Ted Cruz, the junior senator for Texas, has already reportedly raised $37m from just three families. The huge accumulation of money to back, in particular, Republican candidates comes mainly from the top 1 per cent of wealthy Americans.

This dramatic change in the pattern of financial support for federal election candidates is a consequence of two Supreme Court verdicts by a conservative court, in which almost all significant decisions are made by a knife-edge majority of five justices against four. The verdict in the first case in 2010, Citizens United against the Federal Election Commission, allowed corporations and trade unions to contribute to political action committees without limit – provided only that the committee, now known as Super Pac, was not acting in conjunction with a particular candidate’s campaign. The only limits that remained at this point were over donations to individual candidates.

This, however, did not satisfy Shaun McCutcheon, a prominent Alabama donor. He made common cause with the Republican National Committee in a case to remove the limits altogether. The Supreme Court removed the limits in its verdict (again five to four) on 2 April 2014, and donations can now be made directly to candidates themselves. This verdict, like the earlier Citizens United decision, was reached in the name of the First Amendment on freedom of speech, with no requirement of any kind for equal time as between the competing candidates. In a country where access to the media of radio and television is determined by ability to pay, candidates with limited funds are at a huge disadvantage.

Republicans have waged a successful campaign to improve their position at the Congressional level too. In many states, turnout in such elections is low and a well-organised and funded campaign can carry the day. In the US, the boundaries of Congressional districts are determined by state legislatures, not by an independent boundaries commission. In some states, boundaries have been gerrymandered to determine the outcome. For example, concentrating the votes of African Americans or Hispanic Americans in a few districts, to render others marginal. It is an activity in which both major parties engage, but once the boundaries have been agreed by the legislature, changing the political complexion of the state can become very difficult indeed. One political analyst told me that winning a majority in Congress was now close to impossible for the Democrats.

Negative campaigning has badly affected voter turnout in the United States, as has the sense that money determines election outcomes. In the 2014 mid-term elections, the most expensive ever, voter turnout was the lowest for seven decades at 36.3 per cent nationwide. In 12 states – including New York, California and Texas – not even a third of the electorate bothered to vote. Cynicism and apathy are killing democracy.

It is imperative in a democracy that those opposed to the government of the day can cherish the prospect of peacefully changing its leaders and its policies. Otherwise the alternatives are some form of violent action, a revolution or a coup.

One of the constitutional subtleties of the UK has been the official status given to the main opposition party and its leader within Parliament – a status recognised by the only body permitted to broadcast political campaign material during a general election, the BBC. Once that position is overridden, the door is open to democracy in the modern world becoming plutocracy, democracy for sale to those with the means to buy it.

Baroness Shirley Williams is professor emeritus of elective politics at Harvard University