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.

 


Postmortem

November 15, 2016

I feel like I’m in mourning. The presidency has been taken by a con man and we all deserve better – those he’s duped as well as the rest of us.

  • Trump was “elected” by an “electoral college” system designed in the 18th century to protect slaveowners by augmenting their votes with 3/5 of their slaves.
  • He was “elected” by a Court unwilling to protect the voting rights of all American citizens.
  • As in 2000, when Al Gore won the popular vote but George Bush became President, the 2016 popular vote went to Mrs. Clinton. President Bush proceeded to make colossal mistakes in foreign affairs for which this country will spend a century paying.
  • Trump was elected with the votes of people who had suffered financially over the past two decades – but they voted for the very people who refused to lift a finger to provide jobs, people who don’t believe government should do anything, including good and important things, and for whom blocking anything Obama wanted to do was more important than helping fellow Americans. With Republicans benefitting from that cynical and deceitful strategy they are back in control of Congress. Good luck to the coal miners, autoworkers, steelworkers and others – they’ll need it.
  • We will now have a dirty old man in the White House as a “role model” for the worst behavior toward women.
  • And his rhetoric threatens to take apart the signal achievement of America – our mutual respect across faith, national origins, class, race, and counting – an achievement central to the status and future of the very people who voted for hate.

I am worried, crestfallen and embarrassed. What is there to do?

First, I have become a supporter of Supreme Court term limits. Rehnquist spent 34 years at the Court, Stevens 35, Scalia 30 and Thomas has been there 25. Erwin Chemerinsky, widely respected dean at the University of California at Irvine School of Law wrote:

The idea is that each justice would be appointed for an 18-year, non-renewable term. A vacancy thus would occur every two years. Vacancies that occur through resignation or death would be filled by appointing someone to serve the unfinished part of the term.

That way the Court would not be dominated by political decisions made decades ago.

Second, I would not confirm any new justice until there is agreement to reverse the decision that allowed states to monkey with their election rules to disenfranchise voters, and until there is agreement to adopt one of the mathematical rules that precisely measure gerrymandering, the level of favoritism to either party – known as symmetry or wasted voters. Some will object that those decisions are for the justices. Nonsense – the appointments clause is the political check and those decisions put the justices’ prejudices ahead of self-government and assured Republican victories, roles no judge should be playing. Those decisions were partisan, self-serving and should be ruled unconstitutional.

Third, we need to get across to people that refusing to vote because there is someone else we like better is a very bad choice because it has very bad consequences. In a democracy, to live and work together we have to be willing to compromise. It’s part of the deal.

Finally, we need to organize. 2018 is two years away and Congress will be at stake again. True patriots don’t give up.

— This commentary was broadcast on WAMC Northeast Report, Nov. 15, 2016.


Trump’s Audience

August 23, 2016

Behind Trump’s remarks and his imperviousness to criticism is the audience he’s after.

Trump charges that this election is rigged because his audience doesn’t like who can vote. One can respond that elections have been rigged by the Court since it stopped the count in Florida to make Bush president, but that misses Trump’s and his audience’s objection. The Court has unleashed the full contents of corporate treasuries, tightened the screws on union finances, encouraged states to exclude African-Americans from the voting booths and supported gerrymandering so that Republican controlled legislatures could rig elections against Democrats. Those decisions rigged the election in Trump’s favor. But for his audience, rigging the election means including what some still call Fourteenth Amendment citizens. They object that the first sentence of the Fourteenth Amendment makes everyone born here citizens, especially Blacks and browns.

Trump’s inconsistency on foreign policy is also because of the audience he wants. While claiming Democrats are weak on foreign threats, Trump also wants to withdraw from NATO which has held the Russians at bay for over half a century. And he has told us that he would consider not coming to the aid of an attacked NATO member. Never mind speculating whether he’s a wimp, a loudmouth, or a Russian agent. The important question is who’s his audience and why? Actually extremists have imagined international conspiracies that only they can believe in. Trump clearly wants their support. That leaves the rest of us wondering whether they would be center stage if he won. Making international conspiracies the number one villain helps explain Trump’s admiration for Vladimir Putin, and his invitation to Russia to hack into the computers used by a Secretary of State. One points out in vain that’s an invitation to foreign espionage. Trump got his message across; he’s with the fringe, the conspiracy theorists, and the people with lots of hate.

Then there’s Trump’s comment that Second Amendment people might have a way of dealing with Hilary and her judicial nominees if she is elected. When questioned about those remarks Trump responded that he was just kidding. Besides, he said maybe. No advocacy there. He wasn’t trying to get anyone killed. But why did he do that?

Politicians have reasons for what they say. He was seeking support from precisely those people who could imagine using guns that way. Surely some would just like to have violent dreams. But some are more likely to act on dreams like that when encouraged by people like Trump, and will understand his words as a call to violent action, action that undermines democratic self government.

Beyond whether Trump should be expected to talk like a responsible adult, is the question whether we have the responsibility, whatever our politics, not to enjoy such language, responsibility not to reward it, but to stand tall for the real America, the America that claims to believe in law and order and in self government that celebrates our ability to disagree without threats, assaults and murder.

Trump makes statements like that because he has an audience for it. If most of that audience has the maturity and the loyalty it claims, it must be prepared to turn against candidates who misuse it. Supporters of gun rights must believe that gun owners have an obligation to act and speak responsibly and to keep political and racial hatreds away from trigger fingers.

— This commentary was broadcast on WAMC Northeast Report, August 21, 2016.

 


Why Neither Party Can Back Down on Garland

April 12, 2016

Why is blocking the Garland nomination to the Supreme Court so important to them that most Republicans won’t even meet with him let alone agree to hold a vote? Many probably think it is about gay rights and abortion. But there is much more at stake for both parties.

After the Civil War, a very different Republican Party was anxious to secure voting rights for African-Americans. They explicitly addressed the voting rights of the former slaves in both the Fourteenth and Fifteenth Amendments and addressed it by implication in several other clauses as well. Those Republicans, committed to freedom and equality, understood that if the states of the former Confederacy could exclude African-Americans from voting, the former secessionists could retake southern government. Even more important, southern control of the House of Representatives would be strengthened, because the former slaves would count as full and equal human beings in the census and therefore in the apportionment of seats in the House. If that greater southern representation could be controlled by the white secessionists without Black votes to contend with, the former secessionists would control Congress.

Republicans have now switched positions. They still want to control Congress by controlling who can vote, but now by excluding everyone except white voters and undercounting everyone except Republicans. The Court has given them the power to do that. First, the Court chose George Bush for President, stopping the count of the actual votes in Florida. It refused to subject gerrymandering to any legal standard, even though there is now a very precise formula defining the extent of gerrymandering. It has taken the lid off every measure that descendants of the former Confederacy can impose to prevent African-Americans from voting, opening the polls only when it is difficult for them to get there, moving polling places to make them harder to reach, and requiring documents for registration that are costly in both time and money to obtain. That’s the dictator’s game where the officials choose the voters instead of the voters choosing the officials. It shreds democracy. It seems it is all the Republicans have left. And if choosing their voters turns out to be insufficient, the Court has unleashed the flood of corporate treasuries on politics and undercut labor’s ability to survive as a counterweight.

Choosing their voters, and controlling political money to favor Republicans are their biggest motives for wanting to control the Court – it protects their seats and their control of states and Congress. But there are other motives. The Court has shredded the protections of ordinary citizens in product liability, fraud and breach of contract cases. It has shredded the responsibility of Republicans’ corporate friends in antitrust liability and responsibility for securities fraud. The Court has become the major enabler of corruption, a giant kickback to friends of Republicans.

If one adds Republican preference for the conservative justices’ attack on abortion and gay rights, and their defense of school segregation, the Court has defined virtually the entire Republican agenda, its social agenda, its attempt to subordinate democracy to their dominance, and its cozy relationship with corporate America. It gives the rest of us very strong reasons to stop them and to get the Court back in support of democratic government, especially taking back the Court’s blessing for legally converting a vocal minority into national rulers. It’s time to stop them in the name of democracy.

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

 

People bear the cost for rulers’ misbehavior

March 29, 2016

In a still unpublished manuscript on the way conservative economics has failed us, my friend Eric Zuesse remarked, “The ‘Greek debt’ is really not a debt of the Greek people.” He goes on to identify the “institutional creditors  … Euro-banks … high risk kleptocrats, oligarchs and bankers who siphoned most of the euros into overseas Swiss accounts …. [and other foreign investments] devoid of any capacity to generate income to pay back the debt.”

Eric’s statement is profound, pointing to the ways that those in power play with our lives and then displace the responsibility to their innocent victims. While I’m sure that some will argue that elections gave the Greek people some complicity, Eric accurately points to the ability of those primarily responsible to displace the costs of their own misbehavior.

I think we can see that pattern all over modern public affairs. What responsibility did the refugees in Syria or Iraq have for the wars that took their lives, homes and livelihoods? What responsibility did unemployed Americans have for the depression that was engineered by banks too big to fail, banks which traded worthless securities in an enormous Ponzi scheme for which they have not been prosecuted? The Supreme Court has cleared the manufacturers of failed medical devices for rupturing in our bodies but why is it somehow the responsibility of the victims to absorb the injuries and the costs? This is a pattern – the rich and powerful do the damage and outsource the costs to the rest of us.

Terrorists take advantage of that. They attacked the World Trade Center and the Pentagon on 9/11. But the people of Afghanistan, Iraq and the Middle East have paid the price of our response, innocent men, women and children, polarizing regions and sweeping us into the worldwind. Our failure to calibrate the response had much wider repercussions.

The British, French, Germans and Spanish have suffered similar terrorist attacks, actually over many decades from many different groups, but they have managed to restrain their responses. England fought in the so-called “troubles” of Northern Ireland but finally learned that their response was devastating the wrong people and making the problem worse. The Spanish restrained their response to the Basques. All restrained their response to leftist terror. They responded with police work, ultimately capturing and trying many of the terrorists.

For many Americans anything but an all-out response seems unacceptable. Politicians attack restraint as weakness, not strength. And of course ordinary Americans pay the price. We pay it in the deficit, in taxes, in the lives of our loved ones in foreign wars, and in civil liberties at home. But those who benefit are immune. Major suppliers of paramilitary forces abroad like Blackwater and Halliburton get more contracts while they supply deniability to American leadership for their violations of human rights.

These are bad bargains. Will we have leadership capable of leading, capable of explaining to the American people and standing strong in the face of hotheads for whom an indiscriminate overreaction is the only so-called “manly” response. Will we have leadership capable of zeroing in on the perpetrators of economic collapse, mortgage failure, and malfunctioning products?

Isn’t it time to stop blaming the people for the misbehavior of the oligarchs? Or will the rulers, paraphrasing Thomas Hardy’s conclusion to Tess of the d’Urbervilles, end their sport with us?

— This commentary was broadcast on WAMC Northeast Report, March 29, 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.

 

 


Democracy Amid the Battle of the Oligarchs?

November 16, 2015

The Court recently decided that states can restrict campaign solicitation by judges but only judges. It left all the rest of its protections of economic privilege in place.

Inequality in the United States is making democracy increasingly unsustainable and unlikely. It also seems unlikely that Americans in sufficient numbers will rebel before it’s too late. The gun rights folk will, if anything, protect the current distribution of wealth, and enforce their prejudices. Liberals aren’t sufficiently united – there are race liberals, economic liberals, and big money liberals. That’s a big tent, not a movement. Conservatives believe in democracy in towns they control, and join the attack on giving the ballot to anyone else. They put institutions that they rule – specially chosen tribunals, faceless and ruthless markets – ahead of democratic government, hiding their contempt for democracy behind the claim that government, democratic government, is the problem. So behind all the hoopla of the Tea Party there is a real threat that this government of, by and for the people will perish from the earth.

Then what? At the turn of the last century democracy was rescued from abroad, by unrestricted immigration that turned into a tide of votes – organized by totally corrupt political parties but organized effectively. The corruption temporarily led the wealthy to put cleaning up government ahead of cleaning the pockets of the poor.

But here’s the point, when the wealthy and powerful take control of the whole shebang, political money, jobs, the media, only the wealthy can take it down. That means that democracy will return only when the wealthy battle each other – and when the Gods fight, the heavens rain fire.

What could start such a battle among the wealthy? Kevin Phillips wrote about the way that different national Administrations shifted wealth among sectors of the economy – from mining and manufacturing to oil and finance.[i] So one option is to take sides among the giants. We argue about football teams. Why not fight about who gets wealthy; maybe they can be sufficiently provoked to provide a little democratic space. Remember it was the kings of Spain and Portugal who restored democracy to their domains, not the Republican army.

Short of that, we could play for the patronage of the moneyed people, trying to figure out what little we can do for them so they will brush us the crumbs off their table. Welcome to the so-called democracies of Central and South America, often described as clientilistic democracies by political scientists. Democracies they are not. They are competing bands of hirelings and sycophants fighting for the right to root for the winning team and pick up the t-shirts, ball caps and plastic trophies of victory.

So are you on the oil, gas and pollution Koch brothers team? The casino team of Sheldon Adelson? The financial teams of Warren Buffet or George Soros? The electronics team of Bill Gates? Step right up ladies and gentlemen; it’s going to be a war of the Gods. There’ll be droughts, fireworks, earthquakes, and lots of blood, folks, so get yourselves on the right team.

We could try to pull the Supreme Court off the ramparts of privilege and regain control over the use of money in politics. Or we could hope for the best ‘til Brutus assassinates Caesar – though that could lead to consolidation of tyranny as it did for the Romans.

Can we rally to save the planet and save democracy? As we used to say in Brooklyn, before the Dodgers finally won the Series, “ya gotta b’lieve.”

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics (NYU Press 2016). He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. This commentary was broadcast on WAMC Northeast Report, November 10, 2015.

[i] Kevin Phillips, Wealth and Democracy (Random House 2002).


%d bloggers like this: