America witnessed a genuine “Mr. Smith Goes to Washington” moment last week. Shortly after announcing his “yes” vote to move Brett Kavanaugh’s Supreme Court nomination forward, Arizona Sen. Jeff Flake was confronted in the elevator of the Dirksen Senate Office Building. On live television, Ana Maria Archila and Maria Gallagher told the Republican senator in raw and direct language about their own experiences with sexual assault.
“Don’t look away from me,” Gallagher said. “Look at me and tell me that it doesn’t matter what happened to me, that you will let people like that go into the highest court of the land.” Flake was visibly affected. In a subsequent interview on “60 Minutes” on Sunday, he said that interaction made him “hit the pause button” and call for the FBI to further investigate the assault allegations against Kavanaugh. “What I was seeing, experiencing – in an elevator and watching it in committee – (I was) just thinking, this is tearing the country apart.”
This is how democracy should work – but it seldom does. In this age of emails, texts and tweets, citizens might legitimately wonder whether buttonholing a public official retains any contemporary relevance. This elevator moment is a reminder that in-person petitions not only work, but that they are essential for democratic self-government.
Too often, people seeking to speak truth to power are kept at a distance so that politicians don’t lose control of their messaging or optics. Yet the First Amendment safeguards the right of petition – and this right should be understood to encompass a right to access, in person, our elected representatives. Indeed, the Petition Clause’s English historical antecedents involved, quite literally, laying a petition at the foot of the king; doing so in person was required for a petition to be received, heard and answered.
Petitioning is no less central, or important, to American democracy than the freedom of speech. It enables a feedback loop between elected officials and we the people, which is how citizens hold government officials accountable.
Even so, a shrinking number of opportunities exist for ordinary citizens to express their concerns directly. For those who can’t hire a lobbyist or afford a hefty campaign contribution, access to a senator or representative is, at best, quite limited.
Most messages sent via email, voicemail or social media are never seen or heard by those who shape laws or policy. When such communications are considered at all, they are simply tallied up by low-level staffers as responses for and against a particular nominee or bill. Individual members almost never know the source of these opinions, much less how a specific constituent articulated her views and concerns. The ability to use social media to propagate a message is certainly important and empowers everyone to have a voice. But just because everyone can speak publicly doesn’t mean anyone is truly being heard.
Suppose that Archila and Gallagher had simply sent out a tweet with a clever hashtag. Or emailed Flake’s office. Or even led a protest outside the building. Would Flake have had his change of heart then? Because they confronted him face-to-face, a case can be made that these women altered the course of these proceedings – and potentially the course of history. No matter how Kavanaugh’s confirmation goes from here, investigating the sexual assault allegations against him provides an important signal that the government must take victims’ experiences seriously.
Archila and Gallagher weren’t alone, of course. Last week, hundreds, perhaps thousands, of women and men went to Capitol Hill to make their voices heard in person. A group of women from Maine, for instance, refused to leave Sen. Susan Collins’ Washington office until she met with them – which she did. There are frequently mass campaigns to have people call or email their representatives, but Washington has not seen this intensity of organic petitioning activity for a very long time.
Because this grassroots lobbying has been so visibly effective, there’s a risk that Senate Majority Leader Mitch McConnell (R-Ky.) might try to squeeze off public access to the senators just as he’s pushing for a final vote on Kavanaugh. He could, for example, pressure security officers to significantly limit public access to the Senate Office Building, or close it to the public entirely citing security concerns.
That’s already the case at the U.S. Capitol. In times past, ordinary people could wander the halls of this temple of democracy. Not so today. The imperatives of security led to severe access restrictions. Likewise, many state capitols, courthouses and other government buildings have deeply curtailed public access. But if ordinary people cannot enter the places where government officials work, then they cannot effectively petition their government for a redress of grievances.
While we must be sure that officials are kept safe from harm, they should not be insulated from fierce political disagreements with their constituents. It is essential that ordinary citizens have the ability to share their thoughts, views and concerns with those who hold the reins of government power. And the Kavanaugh fracas shows us why.
Ronald J. Krotoszynski Jr. is a law professor at the University of Alabama and author of “Reclaiming the Petition Clause.”