Paupers, Brokers & Buyers: can women hang in the competitive marketplace of legislation?

At the time, the United States Senate Judiciary Committee, acting under pressure, had called Professor Anita Hill to testify about the nomination of Clarence Thomas for Supreme Court Justice. The radio was turned up loud, and Anita Hill's voice was riveting. The calm, steady sound of her speaking flowed through everyone's life like a river. And then her voice was filtered through the responses of the senators and their expert witnesses. I remembered the two-step process of listening to Anita Hill -- hearing her, and then hearing her not being heard.

 — Carol Gilligan, Getting Civilized, Fordham Law Review (Special Issue on Women and the Law, 1994).

The economic theory of regulation, or Public Choice theory, asserts that Congress uses legislation to broker wealth transfers from the unorganized public to discrete and organized interest groups. Jonathan R. Macey, Some Causes and Consequences of the Bifurcated Treatment of Economic Rights and “Other” Rights Under the United States Constitution, in Economic Rights 141 (Ellen Frankel Paul, et al. eds. 1992). Under this theory, laws are commodities that Congress “sells” to private interest groups. The “currencies” paid to politicians for those laws are “political support, promises of future favors, outright bribes, and whatever else politicians value”. Id. at 155-157. For such wealth transfers, politicians endure low costs: the poorly informed public is unlikely to withdraw their political support, especially if politicians suggest harmful legislation actually advances the public’s interest. Since politicians stand to gain a great deal without enduring great costs, they have an enormous incentive to broker wealth transfers for the benefit of organized private interest groups.

Here is the feminist question: what does the economic theory of regulation suggest about the welfare of women in our political system?

Many feminist legal theorists have argued that women have a different voice than men. See e.g., Elizabeth M. Schneider, Hearing Women Not Being Heard: On Carol Gilligan’s Getting Civilized and the Complexity of Voice, Fordham Law Review (Special Issue on Women and the Law, 1994). Assuming women share an overarching voice, women’s interests and concerns sometimes will overlap with those of men, and sometimes will not. For those different issues that are of particular concern to women, men are not the best advocates. The problem is, however, that men dominate positions of power in the public sphere.

According to Public Choice theory, the main players of law making are politicians and private interest groups. It is therefore imperative that women are represented in Congress and among lobbyists. Sadly, that is not the case. Today, women hold 16.8 percent of the seats in Congress. Women’s representation is even worse among private interest groups: top lobbying firms that “actually control the show” on Capitol Hill are still run by men. Of the top 30 trade associations that lobbied during the Obama administration, only four were led by female CEOs. Even more gloomy is that fact that lobbying groups literally value women less than men in their leadership: top male CEOs of lobbying firms in 2010 were paid $1 million dollars more than their female counterparts. The fear that women’s voices are being crowded out by the voice of men in politics is neither delusion nor paranoia.

The first type of “currency” paid to politicians for legislative wealth transfers is political support from financial contributors. The federal political campaigns of 2011-2012 generated over $2.5 billion in contributions from interest groups. These included the campaigns of presidential and congressional candidates. Different sectors of political interest groups did not contribute equally. Of those $2.5 billion in contributions, over half came from five industries: financial, insurance, real estate, lawyers, lobbyists, construction, energy and natural resources, agribusiness, and other miscellaneous business sectors. These are market sectors that are typically dominated by men, and therefore are void of the “woman’s voice.” These masculine “buyers” of laws are less likely to consider the concerns of women as they try to influence legislation. At the same time, sectors that have greater representation of women made fewer contributions. Less than 30 per cent of contributions were made by the education, health and labor sectors. Moreover, even within sectors, the power of political influence was unevenly distributed among sector members. Large contributions were made by very discrete organized private interest groups. Goldman Sachs contributed an astonishing $7 million. The City of New York alone contributed $3.4 million.

The only people who spends more money than campaign contributors to influence politics are lobbyists. Spending over $30 billion in the last decade, lobbyists offer the second type of currency paid to politicians: information and technical support, in addition to campaign contributions of their own. Today, there are over 12,000 lobbyists in the United States. The biggest spender is the US Chamber of Commerce, having already spent a total of $95.7 million so far this year, and representing the interests of over three million businesses.

The Chamber is a powerful lobbying group that was established in the 1910s. Their mission is to advance enterprise in America. While a healthy economy is certainly in the best interest of all Americans, it cannot be the greatest or sole interest of Americans. Since the biggest spender on Capitol Hill can “purchase” more wealth transfers than anyone else, the interest of the Chamber will likely have huge political influence – even if such a transfer would harm many Americans.

A brief historical review of some of the Chamber’s activities demonstrates how the advancement of enterprise sometimes requires wealth transfers to be made from the poor and the marginalized to the rich and the powerful. In 1934, the Chamber “strongly opposed legislation…that would strengthen the ability of labor unions to organize workers.” Four years later, “over President Roosevelt’s veto” the Chamber provided “strong support” when Congress “reduced corporate income taxes.” Most recently, in 2010, the Chamber “oppose[d] the overall legislation” of the health care reform act. The Chamber has worked hard to divest Americans of their economic rights in the pursuit of enterprise.

If we, as women, want a say in politics, we better have pockets as deep as the Chamber does. But since no one has pockets as deep as the Chamber does, our best bet is to ensure that the voice of women is integrated into the Chamber’s leadership and the Chamber’s beneficiaries (that is, American businesses). As it stands, however, woman’s voice has been astonishingly absent.

Women are severely underrepresented in the US Chamber of Commerce. It wasn’t until 1944 that women were appointed to chamber committees. But who is running the show today over at the US Chamber of Commerce? Among the 134 members of the board of directors, only 11 are women (most of whom are white women). That’s only eight percent. None were executive board members.

Women are also underrepresented in businesses nationwide. In 2007, women owned 7.8 million nonfarm businesses in the United States (compared to the 13.9 million owned by men). Relegated to feminine spaces, women are most competitive in the more feminine service sectors. Women-owned firms made up 45 percent of the “repair, maintenance, personal, and laundry services” industries. Even when women are in business, they face difficulty making it into positions of power. A recent study concluded that women are offered fewer career advancing “hot jobs” than men; this could be “an underlying cause of the senior-level gender gap in business.” The results of another study put the sad truth about the political influence of women-in-business more clearly: “women and women-owned businesses…are excluded in Congressional Committees and committee hearings.” While the US Chamber of Commerce appears to have a gender neutral aim (pursuit of enterprise), women do not make the decisions about their lobbying strategies, women are not their major beneficiaries, and women are not their feared competitors on Capitol Hill.

Today, the chamber continues to lobby on behalf of (male) business interests. Such private business interests are so strictly prioritized that the Chamber “oppose[d] the overall legislation” of the health care reform in 2010. (Emphasis added). The Chamber managed to “eliminate key items that would have negatively impacted the business community including the public option.” Of course, that “business community” overwhelmingly excludes women. Worse, women would have been harmed if the health care law were defeated by the Chambers’ lobbying efforts. Health care reform is in the interest of most women because women make “80 percent of health care decisions for their families,” use “more medical services than men,” and suffer “greater disability from chronic disease.” The Chamber of Commerce places its private interests before those of half the population of this country, and actively seeks to promote male dominated business interests at the cost of women’s health.

Should the largest lobbying group be allowed to wage a “decade-long advocacy effort for private market-based approaches to health care reform”? If so, then how can dispersed and unorganized groups of women, women-business owners or medical patients generally, compete on the political market? When laws are traded as commodities that transfer wealth from the general public to discrete private interest groups, the politically marginalized (women and others) become the proverbial lowly paupers whom the brokers of wealth transfers ignore and from whom they steal.