I’ve been asked to make a speech addressing a question that several commenters to this blog have asked: what now? How do we rescue our democracy? Here’s an abbreviated version (still long–sorry) of what I plan to say.
Let me begin by admitting that I was stunned and dismayed by the election’s result. Anyone who isn’t concerned about handing nuclear codes over to someone both thin-skinned and unstable hasn’t been paying attention.
That said, a Hillary Clinton Presidency would have simply been a continuation of the Obama years: irrational Republican opposition to anything and everything the President proposes, even when those proposals originated with Republicans. It would simply have delayed the day of reckoning, and the realization of the extent to which we have lost important American democratic norms.
That loss has been increasingly obvious for some time. Pundits and political scientists have their pet theories for how this has happened: In American Amnesia, for example, Jacob Hacker and Paul Pierson focused upon what they call a “war on government” that has accelerated since the Reagan Administration; in Democracy for Realists, Christopher H. Achen & Larry M. Bartels argued that the generally accepted theory of democratic citizenship is inconsistent with actual human nature. Much of that analysis has been intriguing. None of it that I’m aware of, however, has attempted to answer the question you have asked me: what should we do and why should we do it?
We don’t always appreciate the extent to which cultural or legal institutions—what we call folkways or norms—shape our understanding of the world around us. In some cases, institutions that have worked well, or at least adequately, for a number of years simply outlive whatever original utility they may have had, made obsolete by modern communications and transportation technologies, corrupt usages, or cultural change. Such obsolescence is a particularly acute element of American political life today.
The Electoral College. In November, Hillary Clinton won the popular vote by approximately 2.85 million votes. Donald Trump won the Electoral College because fewer than 80,000 votes translated into paper-thin victories in three states. Thanks to “winner take all” election laws, Trump received all of the electoral votes of those three states. “Winner take all” systems, in place in most states, award all of a state’s electoral votes to the winner of that state’s popular vote, no matter how close the result; if a candidate wins a state 50.1% to 49.9% or 70% to 30%, the result is the same; votes cast for the losing candidate don’t count.
The Electoral College gives outsized influence to swing states, is a disincentive to vote if you favor the minority party in a winner-take-all state, and over-represents rural and less populated states. (Wyoming, our least populous state, has one-sixty-sixth of California’s population, but it has one-eighteenth of California’s electoral votes.) It advantages rural voters over urban ones, and white voters over voters of color. In 2016, Hillary Clinton drew her votes largely from women, minorities, and educated whites, and those voters were disproportionately urban; Trump supporters were primarily (albeit not exclusively) less-educated white Christian males, and they were overwhelmingly rural.
Akil Reed Amar teaches Constitutional Law at Yale Law School; he says the Electoral College was a concession to the demands of Southern slave states. In a direct-election system, the South would have lost every time because a huge proportion of its population — slaves — couldn’t vote. The electoral college allowed slave states to count their slaves (albeit at a discount, under the Constitution’s three-fifths clause) in the electoral college apportionment. Amar notes that Americans pick mayors and governors by direct election, and there is no obvious reason that a system that works for those chief executives can’t also work for President. He also points out that no other country employs a similar mechanism.
Jamin Raskin, a Professor of Constitutional Law at American University, and a Congressman representing the state of Maryland, favors the National Popular Vote Project, a nationwide interstate agreement to guarantee the presidency to the candidate who receives the most popular votes. Under the NPV, all of a participating state’s electoral votes would go to the presidential candidate receiving the most popular votes overall. It would take effect only when enacted, in identical form, by states holding a majority of electoral votes. To date, states possessing 132 electoral votes – 49% of the 270 electoral votes needed to activate it – have signed on. As Raskin says:
Every citizen’s vote should count equally in presidential elections, as in elections for governor or mayor. But the current regime makes votes in swing states hugely valuable while rendering votes in non-competitive states virtually meaningless. This weird lottery, as we have seen, dramatically increases incentives for strategic partisan mischief and electoral corruption in states like Florida and Ohio. You can swing a whole election by suppressing, deterring, rejecting and disqualifying just a few thousand votes.
Partisan gerrymandering. After each census, states redraw state and federal district lines to reflect population changes. The party that controls the state legislature at the time controls the redistricting process, and draws districts to maximize its own electoral prospects and minimize those of the opposing party. The process became far more sophisticated and precise with the advent of computers, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around.
A 2008 book co-authored by Norman Orenstein and Thomas Mann argued that the decline in competition fostered by gerrymandering has entrenched partisan behavior and diminished incentives for compromise and bipartisanship.
Mann and Orenstein are political scientists who have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They have shown how redistricting advantages incumbents, and shown that the reliance by House candidates upon maps drawn by state-level politicians reinforces “partisan rigidity,” the increasing nationalization of the political parties.
The most pernicious effect of gerrymandering is the proliferation of safe seats. Safe districts breed voter apathy and reduce political participation. What is the incentive to volunteer or vote when it obviously doesn’t matter? It isn’t only voters who lack incentives for participation, either; it is difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no meaningful choice. Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. Voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness, those places often do not include the voting booth.
In safe districts, the only way to oppose an incumbent is in the primary–and that means that challenges usually come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. Republican incumbents will be challenged by the Right and Democratic incumbents from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line”— to placate the most rigid elements of their respective parties. This system produces nominees who represent the most extreme voters on each side of the philosophical divide.
The consequence of ever-more-precise state-level and Congressional district gerrymandering is a growing philosophical gap between the parties and— especially but not exclusively in the Republican party— an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.
After the 2010 census, Republicans dominated state governments in a significant majority of states, and they proceeded to engage in one of the most thorough, strategic and competent gerrymanders in history. The 2011 gerrymander did two things: as intended, it gave Republicans control of the House of Representatives; the GOP held 247 seats to the Democrats’ 186, a 61 vote margin– despite the fact that nationally, Democratic House candidates had received over a million more votes than Republican House candidates. But that gerrymander also did something unintended; it destroyed Republican party discipline. It created and empowered the significant number of Republican Representatives who make up what has been called the “lunatic caucus” and made it virtually impossible for Republicans to govern.
The Electoral College and Gerrymandering are the “big two,” but there are other changes that would reinvigorate American democracy.
The way we administer elections is ridiculous. State-level control over elections made sense when difficulties in communication and transportation translated into significant isolation of populations; today, state-level control allows for all manner of mischief, including—as we’ve recently seen– significant and effective efforts at vote suppression. There are wide variations from state to state in the hours polls are open, in provisions for early and absentee voting, and for the placement and accessibility of polling places. In states that have instituted “Voter ID” laws, documentation that satisfies those laws varies widely. (Voter ID measures are popular with the public, despite the fact that in-person voter fraud is virtually non-existent, and despite clear evidence that the impetus for these laws is a desire to suppress turnout among poor and minority populations likely to vote Democratic.)
State-level control of voting makes it difficult to implement measures that would encourage more citizen participation, like the effort to make election day a national holiday. A uniform national system, overseen by a nonpartisan or bipartisan federal agency with the sole mission of administering fair, honest elections, would also facilitate consideration of other improvements proposed by good government organizations.
Campaign Finance/Money in Politics. Common Cause sums it up: “American political campaigns are now financed through a system of legalized bribery.” But big contributions aren’t the only ways wealthier citizens influence policy. The ability to hire lobbyists, many of whom are former legislators, gives corporate interests considerable clout. Money doesn’t just give big spenders the chance to express a view or support a candidate; it gives them leverage to reshape the American economy in their favor.
A system that privileges the speech of wealthy citizens by allowing them to use their greater resources to amplify their message in ways that average Americans cannot does great damage to notions of fundamental democratic fairness, ethical probity and civic equality.
The filibuster. Whatever the original purpose or former utility of the filibuster, when its use was infrequent and it required a Senator to actually make a lengthy speech on the Senate floor, today, the filibuster operates to require government by super-majority. It has become a weapon employed by extremists to hold the country hostage.
The original idea of a filibuster was that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority vote to end a filibuster.
In 1975, the Senate changed several of its rules and made it much easier to filibuster. The new rules allowed other business to be conducted during the time a filibuster is theoretically taking place. Senators no longer are required to take to the Senate floor and argue their case. This “virtual” use, which has increased dramatically as partisan polarization has worsened, has effectively abolished the principle of majority rule: it now takes sixty votes (the number needed for cloture) to pass any legislation. This anti-democratic result isn’t just in direct conflict with the intent of the Founders, it has brought normal government operation to a standstill, and allows senators to effortlessly place personal political agendas above the common good and suffer no consequence.
Excessive democracy isn’t as important as many of the others, but it’s not insignificant. When we go to the polls, we face choices that few of us are sufficiently informed to make. At the state level, voters choose not only governors, but Secretaries of State, State Auditors, Superintendents of Public Instruction and Attorneys General; at the local level, we vote for Recorder, Auditor, Treasurer, Clerk and Coroner. I find it hard to believe that the average voter investigates the medical credentials of the contending coroner candidates, or the administrative skills of those running for Auditor.
In the real world, most voters make these choices on the basis of party affiliation. That being the case, it would make more sense to elect Governors and Mayors, and allow them to appoint people to most of these offices. That would improve accountability, since the executive making the appointments would be responsible for the choice of the individuals involved. When the positions are elective, chief executives can reasonably distance themselves from scandals or incompetence by pointing out that the officeholder was the choice of the voters.
Making many of these positions appointive would make voting simpler and faster, without doing actual damage to democratic decision-making. Removing a layer of “excess” democracy is hardly as important as reforming redistricting or ensuring that the Electoral College votes for the winner of the popular vote, but it would reinforce an important element of governmental legitimacy: the belief that public officials hold office as a result of a process in which informed citizens make considered democratic choices.
Substandard civic education. I won’t belabor this, but when significant segments of the population do not know the history, philosophy or contents of the Constitution or the legal system under which they live, are ignorant of basic economic principles and don’t know the difference between science and religion, they cannot engage productively in political activities or accurately evaluate the behavior of their elected officials.
The final institution that has massively failed us also doesn’t need much editorial comment from me: the current Media—including talk radio, Fox News, and the wild west that is the Internet.
The Pew Research Center published an extensive investigation into political polarization and media habits in 2014; among their findings was that “consistent conservatives” clustered around a single news source: 47% cited Fox News as their main source for news about government and politics, with no other source even close. Consistent liberals listed a wider range of news outlets as main sources — no outlet was named by more than 15%.
People who routinely consume sharply partisan news coverage are less likely to accept uncongenial facts even when they are accompanied by overwhelming evidence. Fox News and talk radio were forerunners of the thousands of Internet sites offering spin, outright propaganda and fake news. Contemporary Americans can choose their preferred “realities” and simply insulate themselves from information that is inconsistent with their worldviews.
America is marinating in media, but we’re in danger of losing what used to be called the journalism of verification. The frantic competition for eyeballs and clicks has given us a 24/7 “news hole” that media outlets race to fill, far too often prioritizing speed over accuracy. That same competition has increased media attention to sports, celebrity gossip and opinion, and has greatly reduced coverage of government and policy. The scope and range of watchdog journalism that informs citizens about their government has dramatically declined, especially at the local level. We still have national coverage but with the exception of niche media, we have lost local news. The pathetic Indianapolis Star is an example. I should also point out that there is a rather obvious relationship between those low levels of civic literacy and the rise of propaganda and fake news.
The fundamental democratic idea is a fair fight, a contest between candidates with competing policy proposals, with the winner authorized to implement his or her agenda. Increasingly, however, those democratic norms have been replaced by bare-knuckled power plays. The refusal of the Republican-led Senate to “advise and consent” to a sitting President’s nominee for the Supreme Court was a stunning and unprecedented breach of duty that elevated political advantage over the national interest. Just after the election, North Carolina Republicans called a special session and voted to strip the incoming Democratic Governor of many of the powers of that office.
Such behaviors are shocking and damaging deviations from American norms.
These and other demonstrations of toxic partisanship have undermined trust in government and other social institutions. Without that trust—without a widespread public belief in an overarching political community to which all citizens belong and in which all citizens are valued—tribalism thrives. Especially in times of rapid social change, racial resentments grow. The divide between urban and rural Americans widens. Economic insecurity and social dysfunction grow in the absence of an adequate social safety net, adding to resentment of both government and “the Other.” It is a prescription for civic unrest and national decline.
If Americans do not engage civically in far greater numbers than we have previously—If we do not reform our institutions, improve civic education, and support legitimate journalism—that decline will be irreversible. The good news is that there is evidence that a revival of civic engagement is underway.
We the People can do this.
But we have a lot of work to do if we are going to save American democracy, and there really is no time to waste.