Tag Archives: democratic institutions

The New Censorship

One of the many causes of increased tribalism and chaos worldwide is the unprecedented nature of the information environment we inhabit. A quote from Yuval Noah Harari’s Homo Deus is instructive–

In the past, censorship worked by blocking the flow of information. In the twenty-first century, censorship works by flooding people with irrelevant information.

We are only dimly beginning to understand the nature of the threat posed by the mountains of “information” with which we are inundated. Various organizations are mounting efforts to fight that threat–to increase news literacy and control disinformation– with results that are thus far imperceptible.

The Brookings Institution has engaged in one of those efforts; it has a series on Cybersecurity and Election Interference, and in a recent report, offered four steps to “stop the spread of disinformation.” The linked report begins by making an important point about the actual targets of such disinformation.

The public discussion of disinformation often focuses on targeted candidates, without recognizing that disinformation actually targets voters. In the case of elections, actors both foreign and domestic are trying to influence whether or not you as an individual vote, and for whom to cast your ballot. The effort goes farther than elections: it is about the information on whether to vaccinate children or boycott the NFL. What started with foreign adversaries now includes domestic groups, all fighting for control over what you believe to be true.

The report also recognizes that the preservation of democratic and economic institutions in the digital era will ultimately depend on efforts to control disinformation by  government and the various platforms on which it is disseminated. Since the nature of the necessary action is not yet clear–so far as I can tell, we don’t have a clue how to accomplish this– Brookings says that the general public needs to make itself less susceptible, and its report offers four ways to accomplish that.

You’ll forgive me if I am skeptical of the ability/desire of most Americans to follow their advice, but for what it is worth, here are the steps they advocate:

Know your algorithm
Get to know your own social media feed and algorithm, because disinformation targets us based on our online behavior and our biases. Platforms cater information to you based on what you stop to read, engage with, and send to friends. This information is then accessible to advertisers and can be manipulated by those who know how to do so, in order to target you based on your past behavior. The result is we are only seeing information that an algorithm thinks we want to consume, which could be biased and distorted.

Retrain your newsfeed
Once you have gotten to know your algorithm, you can change it to start seeing other points of view. Repeatedly seek out reputable sources of information that typically cater to viewpoints different than your own, and begin to see that information occur in your newsfeed organically.

Scrutinize your news sources
Start consuming information from social media critically. Social media is more than a news digest—it is social, and it is media. We often scroll through passively, absorbing a combination of personal updates from friends and family—and if you are among the two-thirds of Americans who report consuming news on social media—you are passively scrolling through news stories as well. A more critical eye to the information in your feed and being able to look for key indicators of whether or not news is timely and accurate, such as the source and the publication date, is incredibly important.

Consider not sharing
Finally, think before you share. If you think that a “news” article seems too sensational or extreme to be true, it probably is. By not sharing, you are stopping the flow of disinformation and falsehoods from getting across to your friends and network. While the general public cannot be relied upon to solve this problem alone, it is imperative that we start doing our part to stop this phenomenon. It is time to stop waiting for someone to save us from disinformation, and to start saving ourselves.

All good advice. Why do I think the people who most need to follow it, won’t?

My Civic Utopia

Before November’s election, I was collaborating with a young colleague from Political Science on a book that we’d decided we wanted to write about America’s democratic institutions, and whether and how those institutions function in a modern world that is very different from the world in which they were created.

It was going to be about “civic mechanics,” about how a democratic society should choose the people who make its policy decisions, not about the content of those policies.

Then we woke up on November 9th, and deep-sixed the project.

To be perfectly blunt–and politically incorrect–we realized that the problems with American democracy were far more profound than we had thought (and we weren’t very optimistic to begin with). An electorate and a system that could make someone like Donald Trump President was much farther gone than we had imagined.

The book project has been discarded, but before the election we had begun making a list of changes to our electoral system that we’d dubbed “utopia.” I found a copy the other day when I was cleaning out some files.

Here–for what it’s worth–is what we’d listed before we abandoned the project. Important details, caveats and justifications are missing, but you’ll get the idea.

In our democratic utopia:

  • A bipartisan national commission would administer elections under uniform standards, to minimize state-level game-playing, encourage (rather than discourage) turnout and standardize the voting process.
  • We’d get rid of the Electoral College, allowing my urban vote to count as much as the vote of rural inhabitants. (I didn’t say our list was realistic.)
  •  Gerrymandering would be illegal; Independent Commissions would draw state legislative and Congressional district lines.
  •  Numerous positions that are currently elected would be appointed (coroners, recorders, auditors, township trustees, etc.) The Governor would appoint the State Treasurer, Attorney General and the Superintendent of Public Instruction, increasing Gubernatorial accountability and avoiding unseemly and damaging turf battles like those Hoosiers saw when Governor Pence refused to work with Glenda Ritz.
  •  Election day would be a national holiday and voting would be mandatory, as it is in Australia, where non-voters are fined (it’s pretty nominal) and ballots have a “none of the above” option, or voting would be by mail, as they do now in Oregon, Colorado and Washington State, increasing turnout and saving lots of public money.
  • A Constitutional Amendment would overrule Citizens United.

Our utopia would also address the growth of propaganda that has been spawned by Fox “News” and talk radio and propagated by the Internet, taking care to avoid violating the First Amendment.

  • The Federal Government would establish a national, user-friendly “fact-check”/reference site for purely factual information about government–a “one-stop shop” for information that is now scattered across multiple government websites.
  • Reputable news organizations–perhaps the Society for Professional Journalists?– would establish a non-governmental, voluntary accreditation process; it would certify that accredited sources demonstrate compliance with practices characterizing ethical and responsible journalism. (It wouldn’t vouch for the accuracy of published information, only compliance with sound journalism practices.) That wouldn’t remove the click-bait, or suppress the conspiracy theories and propaganda, but it would provide a tool for use by citizens who care about the veracity of the information they are consuming.

We also considered measures that might improve civic competence and trust in government, like tightening ethics rules for legislators (in my utopia, they would be forbidden from joining or being paid by lobbying organizations for at least 2 years following their departure from the legislature); and requiring merit selection of judges.

And of course, my utopia would require vastly improved and increased civics education in the schools.

What would your civic utopia look like?

What Keeps Me Up At Night…

Why have a blog if you can’t share your nightmares?

As I see it, we live in a time of paradigm shift, characterized by a rapidly morphing information environment, a reversion to tribalism, deepening economic insecurities, widespread civic illiteracy, and growing recognition of the inadequacies of current legal and political structures.

All of these elements of our contemporary reality challenge our existing worldviews.

Humanity has gone through similar “shifts” before, but with the possible exception of the nuclear arms race, we have not previously faced the very real possibility that our behavior will cause large portions of the planet to become uninhabitable, or that social order will collapse—with consequences we can only imagine.

The 2016 election exposed significant fault-lines in American society and forced us to confront the erosion of our democratic institutions. The problems have been there, and been accelerating, for some time.

A splintered and constantly morphing media has dramatically exacerbated the problems inherent in democratic decision-making. The current media environment enables/encourages confirmation bias, is rife with spin, “fake news” and propaganda, and  is widely distrusted. The widening gap between the rich and the rest feeds suspicion of government decision-making, and Citizens United and its progeny increased recognition of—and cynicism about– the power wielded by corporate America through lobbying, political contributions and influence-peddling.

In order for democracy to function, there must be widespread trust in the integrity of electoral contests. The fundamental idea is a fair fight, a contest of competing ideas, with the winner legitimized and authorized to carry out his/her agenda. Increasingly, democratic norms have been replaced by bare-knuckled power plays and widening public recognition of the ways in which partisans game the system.

As a result, citizens’ trust in government and other social institutions has dangerously eroded. Without that trust—without belief in an American “we,” an overarching polity 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, as does the gap between various “elites” and others. Economic insecurity and social dysfunction are exacerbated by the absence of an adequate social safety net, adding to resentment of both government and “the Other.

Making matters worse, in the midst of these wrenching changes, Americans elected someone incapable of recognizing or dealing with them.

Citizens in21st Century America are facing a globalized, technocratic, increasingly complex world that poses previously unprecedented challenges to the goal of e pluribus unum (not to mention human understanding and survival). The existential question we face: Can we create a genuine “us” out of so many different/diverse “I’s” and “we’s”? Can we use the law and legal system to create a supportive, nourishing culture that remains true to the Enlightenment’s essential insights, while modifying those we no longer consider so essential? If so, how?

How do we overcome the multiple challenges to the rule of law and a functioning democratic system? Those challenges tend to fall into three (interrelated and sometimes overlapping) categories: Ignorance (defined as lack of essential information, not stupidity); Inequality (poverty, consumer culture, civic inequality, globalization, power and informational asymmetries among others) and Tribalism (“us versus them”—racism, sexism, religion, urban/rural divide, etc.)

As an old lawyer once told me, there’s only one question, and that’s “what do we do?”

In the wake of the election, there’s been a lot of understandable hand-wringing. Comments on this blog, on Facebook and elsewhere have emphasized the need to act. Most of us don’t need that reminder; what we need is specifics: what do we do? How do we do it? 

The most obvious answer and most immediate imperative is political: we need to change Congress in 2018. But we also need to fashion concrete answers to the questions raised by social change and  threatening political realities. If we can’t find those answers and then act on them, humanity’s prospects don’t look so good.

And I don’t sleep so well.

 

 

What Now?

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.

Eight examples:

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.