Can American Democracy Survive Trump?

June 13, 2017

Will democracy in America survive?

First remember that democracy matters. No human institutions are perfect but democracy makes it possible to remove officials without going to war. Democracy doesn’t mean anyone alone can make good things happen. Democracy reflects the collective power of people. Collectively, if the rules are followed that protect speakers, publishers, candidates and fair elections, democracy gives us the possibility – though nothing is certain – of throwing the bastards out. That’s important.

The survival of democracy depends on leaders, institutions, and the circumstances that bring out the best and worst in us. What chance do we have?

We should have been warned when Trump repeatedly expressed admiration for dictators in Russia, the Near East and Eastern Europe, when Trump invited an enemy to break into a candidate’s email and interfere in an American election, and suggested his supporters use their “Second Amendment rights” to put him into power. We should have been warned when Trump put people with strong ties to hostile powers at the top of his Administration and gave them access to American military and intelligence secrets. We should have been warned when Trump put an attorney hostile to justice in charge of the Justice Department and installed many military leaders in his government. We can’t rely on this casino mogul turned would-be strongman to preserve American democratic government.

It’s unclear whether our institutions will protect us. The Turkish military protected Turkish democracy for a century, but that tradition is now gone. Members of Trump’s party control both houses of Congress where their commitment to their party compromises their commitment to democracy. Congress seems unlikely to protect us. The Court is dominated by members of the President’s party and their treatment of the Constitution’s due process clauses has been more a threat to decent citizens than a limitation on the powers of would-be dictators.

The circumstances in which we find ourselves have ripped democracies apart across the globe. The concentration of wealth and power we have long seen and condemned abroad has become a reality here. The more that wealth and power are concentrated, the more that the wealthy and powerful circle their wagons to protect their ill-gotten gains against the rest of us, spewing nonsense about supposed trickle-down economics as if it were fact and counting on people’s gullibility. Concentration also makes people desperate, and desperation fuels the mirage of lies and makes too many of us complicit in our own subjugation.

Without reason to rely on the leaders, institutions, or circumstances, that leaves us. Can we square our shoulders and steady our minds to resist the steady babble of nonsense and not just listen to the words but watch what those in power are doing?

When you look at behavior instead of giving a pass to the mogul in the White House, you begin to notice that his actions belie his words. He has no sympathy for coal miners or others who have been shunted aside by changes in the economy but only to protect his friends’ wealth and power from us. Birnie put his finger on the problem and Trump now aggravates the concentration of wealth and power that are taking apart the lives we thought we’d built. So-called “free markets” protect the marketeers. So-called “trickle down economics” protect the concentrations from which the trickles are supposed to flow. And the flood of inconsistent tweets boggle the mind and conceal the reality.

Can we uncover the deceptions with strong minds and clear eyes while the casino mogul in the White House gambles our birthright.

— This commentary was broadcast on WAMC Northeast Report, June 13, 2017.


Trump and the Swamp

June 6, 2017

Trump promised to drain the swamp. We can agree that the swamp is the predominance of special interests over Americans of ordinary means. Bernie Sanders won many hearts and minds by refusing to take big money. Trump claimed independence from big money because he had so much. Clinton lost many votes because she accepted large speaking fees and contributions. A large populist wave by financially ordinary Americans swept the country.

People credited Trump’s promise to drain the swamp. With Trump in power, we’re entitled to look at his actions. Indeed we should.

Most Democrats long tried to take big money out of political campaigns. With some exceptions, like John McCain, Republicans worked to protect the use of money in politics. In the McCain-Feingold Act, Congress managed to compromise between their positions. But the Supreme Court, dominated by Republican appointees, invalidated restrictions on campaign contributions, and held in Citizens United, that corporations could contribute funds straight from corporate treasuries. Heard anything lately from the White House about campaign finance regulation? I didn’t think so.

Trump wants to lower the tax and regulatory burdens on the wealthiest people and companies. He claims in justification that the extra costs harm American workers. I recognize the heated debates about those claims. I’ve repeatedly explained in this commentary that putting more money in the hands of the wealthiest people and corporations is unlikely to spur investment or improve the position of American workers. It won’t help American workers because corporations can and do spend extra money everywhere, including abroad. It won’t help American workers because extra wealth can be and is spent on nonproductive goods or investments. And it won’t improve the position of American workers because there is no shortage of capital in this country, so putting more in in wealthy or corporate pockets is like pouring mud into the Mississippi.

Eliminating regulations will also put money in wealthy and corporate hands but hurts everyone else. Unions have been big proponents of safety regulations because they protect the health and safety of workers, and, we should add, of consumers and citizens.

Trump’s proposed budget also pulls up the safety net and hands the savings to corporations and the wealthy. The safety net protects people when they fall on hard times, when illness drains their bank accounts and strains their budgets, when corporate decisions leave workers struggling to find new jobs and forced to feed families on minimum wage jobs. These have direct and indirect costs for all of us. Losing a job can be temporary but it can also be a fall into a rabbit hole that sucks out everything we’ve invested in our homes, our retirement, and stresses, even breaks up our families. In 2008 those factors spread and took a lot of us down. The safety net was intended in part to help slow or stop economic downturns. 2008 overwhelmed what was left of the safety net but Trump would make it worse.

And health care decisions don’t just affect the most vulnerable. None of us want people spreading serious or medicine-resistant strains of TB, Zika, MRSA and other communicable diseases. Effective strategies against communicable disease involve keeping the diseases out of the population to the extent possible.

In Trump’s budget, the savings from all these cuts go to the 1/10 of 1%, the wealthiest of the wealthy, the very people who should be giving back rather than sucking at the public til. Trump promised to drain the swamp. But Trump IS the swamp.

— This commentary was broadcast on WAMC Northeast Report, June 6, 2017.


What’s to blame for our divided nation? The cause can also be the cure

May 10, 2017

My views of the legal contribution to American polarization and what can be done about it have now come out as

“What’s to blame for our divided nation? The cause can also be the cure” [click here] on TheHill.com. Enjoy.


Cautionary tales from other populist regimes – follow up

November 30, 2016

Here’s a follow up from Kim Scheppele:

Just saw this piece from the NYT today that reports on the new research of Yascha Mounk and Roberto Stefan Foa that analyzes the World Values Survey data and concludes that liberal democracies are in danger in the US and beyond:   www.nytimes.com/2016/11/29/world/americas/western-liberal-democracy.html.  The new work shows plunging support for democracy in the US, UK, Australia, New Zealand, the Netherlands and Sweden and it is forthcoming in the January issue of the Journal of Democracy.

Their earlier paper (from which I excerpted the first table in my earlier post) can be found here:  http://www.journalofdemocracy.org/sites/default/files/Foa%26Mounk-27-3.pdf.    It’s well worth the (depressing) read.  Both their work and mine point in the same direction – toward the conclusion that once-stable democracies are in danger of coming unglued first through erosion of public support (Mounk and Foa) and then through the election of anti-constitutional populists by fed-up voters who support these leaders as they break the constitutions they inherited (me).


Cautionary Tales From Other Populist Regimes

November 30, 2016

This is a post from Kim Lane Scheppele, at Princeton University, which is chillingly accurate, as Kim usually is, and which I am re-posting with her permission from the lawcourt and conlawprof listservs:

While we’re on the subject of learning a lot from regimes that have been in this difficult place before, I recommend this powerful piece by Turkuler Isiksel, assistant professor of political theory at Columbia (and former LAPA fellow at Princeton):   https://www.dissentmagazine.org/blog/trump-victory-regime-change-lessons-autocrats-erdogan-putin .  She watched Turkey fall under the control of a populist autocrat who won democratic elections and sees some of the same danger signals in the US.   A summary:

Confidence in the exceptional resilience of American democracy is particularly misplaced in the face of today’s illiberal populist movements, whose leaders are constantly learning from each other. Trump has a wide variety of tried and tested techniques on which to draw; already, he has vowed to take pages out of Putin’s playbook. Defenders of liberal democracy, too, must learn from each other’s victories and defeats. Below are some hard-earned lessons from countries that have been overrun by the contemporary wave of illiberal democracy. They could be essential for preserving the American republic in the dark years to come.

I just came back from Chile, where I gave some lectures on the creeping advance of illiberal constitutionalism around the world.   People there asked me how Trump could have been elected in the US, and I showed them this data:  Nearly one quarter of young Americans no longer believe in democracy and since 9/11, faith in the way America is governed has plunged to all-time lows (raised slightly in election years when Obama was elected, but then plunging back again):

[Her first chart, which I cannot copy here, from the World Values Survey, shows older Americans very supportive of our system of government but dissatisfaction rising among younger age groups at twice the rate here as in Europe. Her second chart, from Gallup, shows dissatisfaction rising and from 1972-2013.l

These are danger signals that should have alerted us earlier to the possibilities of Trump.    I might add that very similar danger signals appeared before the election of other populist autocrats of both left and right:  Putin, Erdogan, Orbán, Kaczynski, Correa, Chavez.

There’s a clear pattern here.  First people lose faith in the system.  Then they vote to break it.   And when the new leader decides to trash the constitutional system, he is cheered on by those who want change at any price.   When people wake up to the damage done, it is too late because their constitutional system has been captured.

What I’m worried about — and what Turku Isiksel also observes — is that these populist autocrats learn from each other.   Trump’s affinity for Putin has gotten the most attention, but we should also note that Trump has been exceptionally friendly with Erdogan while Michael Flynn, his new national security advisor, has been knee-deep in ties to the Turkish government (see https://www.bloomberg.com/view/articles/2016-11-17/why-turkey-s-erdogan-is-so-happy-about-trump-s-victory and http://www.nytimes.com/2016/11/20/world/europe/turkey-flynn-erdogan-gulen.html .  In addition, Trump has struck up a friendship with Hungarian “illiberal democrat” Viktor Orbán (see http://www.reuters.com/article/us-usa-trump-hungary-idUSKBN13K0ON  and http://www.theatlantic.com/international/archive/2016/11/trump-putin-nato-hungary-estonia-poland-orban/508910/ ).    All of these illiberal leaders have borrowed autocratic techniques from each other (as my new research project shows).   The techniques have to be adapted anew to each constitutional system that is “cracked” in illiberal ways, but the techniques are not at all dependent on ideology and therefore can be used by regimes of very different political flavors.     (And just to clarify here, I’m not objecting to conservative governments, but to illiberal ones that no longer believe in checked and balanced powers or in the rotation of power from one party to another.)

What is striking about the new autocrats is how legal they are and how they borrow the worst practices from the best countries to shut down the democratic opposition.  For example, Russia’s notorious NGO law that requires all NGOs to report foreign support and register as foreign agents is modeled on the 1938 Foreign Agents Registration Act (FARA) of the US.      ( See the Venice Commission expert report on the Russian NGO law including an analysis of the Russian government’s claim that it was copying FARA at p. 9-10:  http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)025-e .)   After Hungary lowered the judicial retirement age to get rid of the top tier of judges in 2012 so they could replace them with appointees of their own political flavor, Mohamed Morsi did the same in Egypt.   How many of us have argued for fixed terms of judges or fixed judicial retirement ages in the US?   Imagine if those proposals were to gain ground as a political movement just now?     Several populist autocrats in Latin America have added a line-item veto to their powers, which effectively neutralizes parliamentary compromises, erases any hard-won traces of parliamentary opposition, and strengthens the dictatorial powers of the president.  But don’t some American reformers still want the line-item veto – even now?  Just see how that works in Latin America, and be very afraid.    In short, many proposals to reform the “broken” American system have already been used by populist autocrats to consolidate their power through constitutional capture, and we should be very wary of the particular proposals that will be made by a president-elect who has already proposed to govern outside the Constitution as we know it.

If you think constitutional capture can’t happen in the US, then you didn’t know how unlikely autocracy seemed in these other countries before it occurred.    But as Jack Goldsmith has recently argued:  libertarian panic may be the best weapon we have against awful things to come:   https://lawfareblog.com/libertarian-panic-unlawful-action-and-trump-presidency because it at least means we are paying close attention.


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