Is Democracy in America Coming Apart?

December 6, 2016

I wrote Unfit for Democracy to warn that American democracy could collapse in coming decades. But the problems are coming home to roost sooner than I expected.

How the economy treats people matters. That was the starting point for my work and, since World War II, for political scientists studying the survival or breakdown of democracy. But the American economy has been leaving lots of people behind. In my book I argued that the Supreme Court was diluting the value of ordinary Americans’ economic rights in favor of the wealthiest people and corporations. I feared the danger to democracy as people became more and more desperate.

I also worried the Court wasn’t enforcing the Bill of Rights for ordinary people and feared would-be dictators could take advantage of it. And I worried because the Court permitted politicians to fix the voting mechanisms to make fair elections almost impossible.  Changes made after the 2010 census allowed Republican-dominated legislatures to lock Democrats out of Congress and the majority of state legislatures for the foreseeable future. That Court-sanctioned gerrymandering now blocks fair representation in Congress and in many states. Trump kept claiming that the system was fixed, implying that it was fixed against him, but the Court allowed the Republican Party to block access to the polls in many states.[1] The election was partly fixed, in favor of the Republicans and Mr. Trump.

I also worried that legal changes underlying changes in the media and the primary systems were contributing to the polarization of America. As Jim Hightower once titled a book,  There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. I thought that was dangerous.[2]

Now we are finding out that only a quarter of Americans still believe that it is important to live in a democracy. And we’ve elected a president who befriends autocrats – autocrats who destroyed democratic governments, censored the press, put opponents in prison, and took over.

Once that happens, the people who wanted to break the system down have no voice in what the new system does. Autocrats around the globe become kleptocrats – they steal from everyone for themselves and their friends. In commentary earlier this year I described that as the Sheriff of Nottingham syndrome – the sheriff from the Robin Hood legend who took from the poor to fill the pockets of King John. Corruption in democracies doesn’t hold a candle to what autocrats do to their people financially, how opportunities suddenly depend on the dictators’ favor, how freedom disappears, real freedom, the freedom to walk around out of prison and take care of one’s family. Those folks who were so ready to break the system are likely to be among the first broken by it.

The Court won’t protect us. Those with power have no motive to protect us, but only to keep their own advantages. The rich will have more, not less control. Just look around at how Trump is deepening the threats:

  • His worldwide set of conflicts of interest become opportunities for Trump enterprises in the pattern of third-world kleptocracies;
  • He proposes to cut benefits for ordinary Americans, leaving more for himself and friends;
  • He selects America’s wealthiest to run our economy;
  • He rants about asserting “Second Amendment rights” at the polls as if menacing people at polling places advances democracy;
  • He rants about throwing people in jail – starting with his political opponent – though that threatens democratic competition;
  • He seems to think that winning means he can do whatever he wants.
  • And he and the Republicans seem to believe recounts are legitimate only for themselves – not to protect and enforce the voters’ choices.

If American democracy collapses, it will be the biggest victory for the world’s worst people. As Trump pounds on the pillars of democracy, we will have to do all we can to preserve the American democratic way of life.

[1] Unfit for Democracy, at 195-204.

[2] Id.  at 153-67; Law and the Polarization of American Politics, 25 GEORGIA STATE L. REV. 339 (2008).

— This commentary was broadcast on WAMC Northeast Report, December 5, 2016.

 


Against whom the rebellion?

November 8, 2016

This is my last chance to talk with you before the polls close.

Republicans have argued since the 19th century that the market solves all problems. Democrats by contrast solve economic problems by investing in the people and the infrastructure they need to get their work done – things business can’t partly because of competitive pressures and partly because they can’t reap the benefits of projects that help the general public.

Because getting things done requires both the president and Congress, split government favors the Republicans. Democrats need both branches and both houses of Congress to pass the laws  that make their economic programs possible. Looking back to 1994, there have been only four years in which Republicans did not control at least the Senate.

There is a well-justified need to rebel against the way the economy and the government have been treating you, and the Republicans should bear the brunt of that rebellion.

They insist that investors would use tax breaks to create new jobs in this country. In fact, tax- break beneficiaries can invest the money anywhere. So when Republicans give wealthy businessmen more money, we just get the risk. Their friends get tax breaks; workers get laid off. Their friends close factories; workers look for jobs. Their friends freeze wages; workers look for second and third jobs just to keep going. Their friends downsize for efficiency, leaving workers unemployed, unhappy, and looking for a way to earn a living.

The economy is organized for the guys on top. Dealing with it, making America truly great for all of us, takes more than the Republican nostrum of lowering taxes. Businesses invest where they find markets, workers, infrastructure, and where they’re attracted by the comfort or the cultural life for themselves and those they want to hire. Taxes have little to do with it.

That’s why Obama’s and Hillary’s investment in infrastructure and emerging industries is a better deal to create jobs and opportunities for everybody. There are many reasons to invest in America – unless we let it fall apart, let our infrastructure crumble, and don’t keep it up to date.

Whether Trump understands real estate, where he’s managed to lose lots of other people’s money, Trump clearly doesn’t understand the economy. The old trope about taxes won’t grow the economy. And his promises are cynical because people won’t invest in outdated, high cost, low return industries when there are better opportunities, no matter how much he yells about it.

Which gets back to something else Trump doesn’t understand. Government needs to work on shifting the risk, to make it easier for the vast majority of Americans to find new sources of income, if necessary to move where the jobs are, on more than a hope and prayer of avoiding homelessness. That’s not in the big generalities that so-and-so will fix things. That’s in the details. You work on those; you study those; the job isn’t all in the bluster.

We’ve had enough of Republicans blocking every effort to build the economy, protect its workers and take care of all the people. It’s time for a smart rebellion – not a wild swing with eyes closed.

So do vote if you haven’t already. It matters.

— This commentary was broadcast on WAMC Northeast Report, Nov. 8, 2016.


Dealing with Citizens United: Second in a Series on Money in Politics

July 12, 2016

Last week we discussed the importance of taking political campaigns back from big donors. This week we begin examining the complexity of reinstating limitations without damaging what should be protected speech.

Citizens United[1] angered people about corporate legal rights. People want to remove those rights wholesale. But that view of the Court’s mistake raises far more serious First Amendment issues than most people understand.

Removing corporate protections would require distinguishing corporations that should be protected – political associations, broadcast, digital and print press – from those that should not be protected. That’s not easy. If corporations release “news” reports or take positions, are they press or stockholder associations? What would broadcasters’ or newspapers’ protections depend on? What would legitimate or prohibited explanations of corporate needs and positions be? First Amendment law developed around clear rules to prevent judges or legislators from deciding who can speak about what. Removing First Amendment protection from corporations cuts deeply against the First Amendment grain.

Constitutional rules, however, can be limited for compelling reasons. Citizens United revealed fundamental problems with the justifications, like corruption, for financial limits on participating in campaigns. Quid pro quo corruption is clearly illegal but regulation went well beyond it. Money can divert legislators’ attention from constituent needs toward donors’ needs, but can also expose misbehavior, or champion voters’ interests. Attorneys’ ethics prohibit us from engaging in deals or accepting gifts that create conflicts of interest – but it’s harder to define legislators’ conflicts where the donors or their allies are constituents. So the meaning of corruption has been vulnerable to attack and narrowing by the Court.

Large donations can entrench office-holders against challengers. But they can do the reverse by helping unseat legislators. The Court hasn’t been very receptive to that claim.

Political equality is a right, including rules surrounding voting, vote counting, and apportionment of districts. But just as clearly, economic equality is unacceptable here. The logical conclusion of economic equality would be a never realized vision of communism. Demanding some economic equalization in politics would force the Court to balance the extent to which economic equality can be required by political equality. That’s not a problem with a specific solution. And the Court is skeptical of allowing legislatures to define the balance because they have conflicts of interest. In any event, legislation doesn’t look promising in Congress or in most states. I’ve argued that the Supreme Court must consider equality in shaping economic rules, but that’s harder where it requires narrowing First Amendment principles. So financial equalization is hard to define and harder to argue.

Well-respected Harvard law professor, Lawrence Lessig, argues that campaign finance restrictions would prevent legislators from becoming too dependent on a few powerful donors.[2] Dependence leads legislators to shirk their duty. But legislators shouldn’t be independent of their constituents or powerful voices. So, once again, what’s the right balance? Who is and is not entitled to participate in the political debate? And how much is too much, or too little? Moving beyond Citizens United will have to be done thoughtfully.

In any event, four of members of the Citizens United majority remain on the Court. Justice Kagan is new. People who know her well tell me that she is a First Amendment absolutist, which liberals would have applauded before Citizens United, and she is not likely to overturn it. So the decision will be with us for a while.

Next time we’ll look at the proposed amendments.

— This commentary was broadcast on WAMC Northeast Report, July 12, 2016.

[1] Citizens United v. FEC, 558 U.S. 310 (2010).

[2] Lawrence Lessig, Republic Lost (2011); Ian Shapiro, Notes Toward a Conditional Theory of Rights and Obligations in Property, in Stephen E. Gottlieb, Brian H. Bix, Timothy D. Lytton and Robin L. West, Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications 914 (LexisNexis 3d ed. 2015) (“defin[ing] freedom in terms of the multiplication of dependent relationships”); Bruce Bueno de Mesquita and Alistair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics (2011); BRUCE BUENO DE MESQUITA, et al,  The Logic Of Political Survival (2003).


The Outdated Economics of Conservative Ideologues

April 26, 2016

Some of you may have been following Shankar Vedantam on NPR or the discoveries of Daniel Kahneman, the Nobel Prize winning psychologist on the Princeton faculty, and their demonstration of the irrational ways that people very naturally and ordinarily reach decisions. Indeed, for quite a long time it’s been apparent that rational decision making often demands too much of people. As Cornell’s Vicki Bogan said in a talk in Albany, the rational choice model of economics assumes that people:

  • Think like Albert Einstein
  • Can store as much memory as IBM’s Big Blue
  • Can exercise the will power of Mahatma Gandhi
  • … [and] make unbiased forecasts

Nobel Prizes have been awarded to psychologists and economists who have been studying human decision making, showing that people literally can’t do what conservative economic theory expects them to. The rational man doesn’t exist, and for that reason, markets often don’t protect us. For both businessmen and consumers, rational choice is often impossible; it’s just too hard. Sometimes things aren’t currently knowable. Sometimes they’re beyond the capacity of individuals, even if institutions can figure it out.

A trip to the grocery store helps make the point clear. Even though much of the information exists, I can’t know enough about all the ingredients of the goods I buy, and their impact on my body, and still take the time to do my work and have a life to live. I have to trust someone or something else. But consumer ignorance shapes what businessmen have to do to survive. Those who cater only to the most informed, cater to small markets and often go under.

One consequence is that the market doesn’t protect us. That’s why workers’ compensation was started many decades ago – workers couldn’t figure out the odds of injury and didn’t have the ability to protect themselves as cheaply and effectively as informed employers could. Government stepped in to move that burden of knowing and choosing from the employee to the employer.

Those are examples. The broader impact of what is now called behavioral economics is that the economic theory of market ideologues is thoroughly discredited nonsense. It doesn’t work. A couple of decades ago there was a big debate about the efficient market theory which claimed that the market had it right even though individuals could be wrong. But they couldn’t tell me whether the market had it right the day before or the day after the crash. In other words it was nonsense on stilts.

That’s one of the reasons the public, all of us, have to get out of the glare of the outdated economics coming from conservative ideologues. It’s one of the reasons why it has been so important that Elizabeth Warren and Bernie Sanders have moved the Democratic Party to the left. That shift also clears the way for Hilary Clinton to return to the roots of the modern Democratic Party in the Great Depression, in Roosevelt’s New Deal, in being a party with heart.

Hilary and Bernie both have a lot to offer, but just as big a key to progress will be the Senate and the House of Representatives, which have blocked Obama’s efforts to push this country toward better, more caring solutions at every turn.

— This commentary was broadcast on WAMC Northeast Report, April 26, 2016.


Supreme Court Vacancies and the Sheriff of Nottingham

February 23, 2016

Justice Scalia’s death creates a vacancy on the Supreme Court. The next president may have more to fill. Deciding cases as if it were the Sheriff of Nottingham, The Roberts Court is having a major impact on the economy. How those vacancies are filled will make a big difference to all of us.

Robin Hood and the Sheriff of Nottingham come down to us from a medieval fairy tale and retellings in print and on film. Bruce Bueno de Mesquita and his colleagues explain the role of Sheriff of Nottingham type figures in our contemporary world. As fewer people have real power, those who run the government must shovel favors to them. Given how wealthy they already are, they won’t appreciate any but very large rewards. But what government does for the public leaves less for these powerful patrons. So rulers employ modern Sheriffs of Nottingham. It’s what Bueno de Mesquita’s group calls the dictator’s game: by starving the public, dictators have more for powerful supporters – and the more they demand.

Kevin Phillips detailed the enormous benefits that corporations seek and government directs toward corporations and their leaders. Spending on politics has huge returns, driving the fruits of government to the favored few, and dismantling government wherever business prefers to operate in the dark.

Many of us have been fighting against special favors for corporations that exploit workers, the environment and the general public. But it gets worse. As the story of Robin Hood implies, holders of great wealth and power fear the people will take their ill-gotten gains from them. To prevent it  they block opponents from voting, minimize their votes by gerrymandering, and pour large funds into preserving their power while starving the population of public services.

The Supreme Court has been helping. Despite enormous gains by the wealthiest in America, and the declining share of the general public, this Court consistently moves economic benefits from the public to business, from the victims to the predators. The Court reversed the meaning of a 1925 arbitration statute to derail a plethora of state consumer protections and made it almost impossible to sue. Instead, the Court allows corporate defendants to choose who will decide the dispute, and at what cost. The Court undercut both state and federal standards of liability for injury to consumers, securities fraud and the damages available if plaintiffs win. And the Court is waging a battle to strip the unions of power to protect workers.

At the same time, the Court unleashed the full power of corporate treasuries on politics. Those corporate treasuries had barred from politics since early in the twentieth century. And the Court allowed states to make it harder to register to vote by increasing the cost and time to register – making it harder for working class, poor or physically challenged Americans to vote. The Court allows gerrymandering to reshape American politics, and has supported other efforts to entrench political incumbents. The Court topped all that by removing the requirement that covered states pre-clear voting changes, the one weapon of the Voting Rights Act that had worked.

Historians and political scientists tell us that pattern of disparities often leads to the breakdown of democracy, the loss of self-government. Sometimes it leads to violence, like the Black Shirts, Brown Shirts, Death Squads, and the security services of people like Putin. Sometmes the plutocrats simply invite a dictator to take control. Great disparities are dangerous. Instead of moderating these outrages in the name of American tradition, the Court has been making the problems worse, increasing disparities and letting them take over American politics. This Court is a danger to American self-government.

That’s where the 2016 elections matter. Whatever policies candidates claim to support, their judicial picks will have a big impact on what really happens to ordinary Americans and the future of self-government in America.

— This commentary was broadcast on WAMC Northeast Report, February 23, 2016. An expanded essay can be found here.

 

 


Schwerner, Chaney, Goodman and the Voting Rights Act

November 25, 2014

Yesterday, President Obama posthumously awarded the Presidential Medal of Freedom to James Chaney, Andrew Goodman and Michael Schwerner, a Black Mississippian and two white New Yorkers, murdered fifty years ago, working to register Blacks to vote in Mississippi. They were among many who lost their lives in that struggle.

Schwerner’s widow, Rita Schwerner Bender, said the best way to honor her husband “and all the others killed or injured in the struggle for voting rights and the dismantling of Jim Crow would be the reinstatement of the Voting Rights Act and its aggressive enforcement.”[1]

At the last hearings on renewal of the Voting Rights Act, witnesses made clear that efforts to rig the process against African-Americans continue unabated, moving polling places, changing district lines, reorganizing forms of government so that Blacks could still be excluded. Because the Voting Rights Act gave the United States Attorney General power to reject changes, those efforts had not succeeded.

In Shelby County v. Holder,[2] Justice Roberts used the Act’s success against it, saying it is no longer needed because the statistics are better. Pamela Karlan, a highly-respected Stanford Law professor, told Congress:

“ if you have a really bad infection and … the doctor … give[s] you a bunch of pills, and … tell[s] you, ‘Do not stop taking these pills the minute you feel better. Go through the entire course of treatment because, otherwise, the disease will come back in a more resistant form.’ … [T]he Voting Rights Act is strong medicine, but it needs to finish its course of treatment, and that has not yet happened … [as] you have heard from other witnesses. ”[3]

Those other witnesses made clear that the efforts to undo electoral integration continues almost unabated and would come roaring back if allowed. The Court stripped the pre-clearance provisions from the Voting Rights Act and the disease came roaring back just as Prof. Karlan predicted.

Should we care about African-American voters? Absolutely. Morally, they’re people like us. Democracy has no right over peoples denied the vote.

And for our own self-interest. Martin Niemöller said of the Nazis:

First they came for the Socialists, and I did not speak out—

Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—

Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

 

As Bruce Bueno de Mesquita and his colleagues explain, the power of dictators is built on shrinking the number of people to whom he or she owes her power, and then rewarding those folk big-time.

You have no stake in southern white racist politics. If you’re Democrats, you have no stake in Republicans winning by excluding African-Americans. In Congress and state legislatures, people of good will are allies. We cannot win on the nonracial issues important to us if we allow our African-American fellow citizens to be excluded from the vote.

Those who wrote and ratified the Fourteenth and Fifteenth Amendments understood that having won the Civil War they could lose the peace if African-Americans could be prevented from voting in the former Confederate states.  We all have a stake in a society where all are represented because that is our chance for a just society in which government is not just of, by and for people who think they’re better than the rest of us.

— This commentary was broadcast on WAMC Northeast Report, November 25, 2014.

 

[1] Jerry Mitchell, Presidential medal to honor 3 slain civil rights workers, JOURNEY TO JUSTICE, The Clarion-Ledger, November 18, 2014, available at http://www.clarionledger.com/story/journeytojustice/2014/11/10/presidential-medal-of-freeom-given-three-slain-civil-rights-workers/18826791/, or http://on.thec-l.com/1ugJ0pp, visited Nov. 24, 2014.

[2] 133 S. Ct. 2612 (2013)

[3] Statement Of Pamela S. Karlan, in The Continuing Need For Section 5 Pre-Clearance, Hearing Before The Committee On The  Judiciary, United States Senate, One Hundred Ninth Congress, Second Session, May 16, 2006, Serial No. J–109–77, S. Hrg. 109–569, at 5.


Worst Supreme Court decisions in Two Decades

December 31, 2013

What’s the worst thing the U.S. Supreme Court has done in two decades?

Bush v. Gore? The very name evokes tragedy.  Thousands dead in Iraq for a war we shouldn’t have fought. Thousands more dead in Afghanistan because the Supreme Court’s choice for president sent military support to Iraq instead. The Court’s presidential choice also encouraged savage, predatory business behavior that we’re still paying for. It put off any reckoning with the environment for a decade, more if you include the House of Representatives’ current intransigence.

That’s quite a record for a single U.S. Supreme Court decision. You might have to go back to Dred Scott v. Sanford which helped bring on the Civil War to match the impact of Bush v. Gore, although if we go back that far, disasters you’ve probably never heard of, like U.S. v. Cruikshank and the ironically named Civil Rights Cases, were responsible for a century of murder and mayhem with impunity in the segregated south. But Bush v. Gore certainly ranks with the biggest – and worst. Read the rest of this entry »


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