As the laws, rules, norms, and traditions of American government continue to come under an unrelenting Trumpist assault, I have found myself increasingly puzzled by the responses of some of my friends and colleagues who share my fear of an authoritarian future and yet plant themselves firmly behind proposals I consider at odds with the liberal democratic views we share and are attempting to preserve.
The division, I think, arises from the difficulty of navigating threat and an uncertainty as to which door will lead us out of harm’s way. I’m reminded of a television commercial in which teenagers attempt to escape a chainsaw killer. One suggests they hop into a nearby car and drive away; instead, they follow another’s advice to hide among the chainsaws. Giving a helping hand to those who pose a threat is not generally a wise move, and yet some who profess their commitment to liberal democracy are doing their best to weaken it.
Most of us in the anti-Trump world agree on the merits or deficiencies of three distinct democratic frameworks: unmediated majority-rule democracy that risks violating the rights of minorities; representative democracy that provides an important mediating filter between mass opinion and government action; and liberal democracy, a rules-and-institutions-based republican framework, that ensures the rights of citizens against both overreaching government and predatory majorities. Where our differences apparently lie is in the weight we give to deliberative democracy, which intends for political decisions to be made through reason and debate across the full array of views on a matter, and which is less about rules and structure and more about norms, attitudes, and behaviors.
In previous articles and speeches I’ve noted my reservations about ranked-choice voting as a solution to political challenges—a system of reassigning votes to try to produce more acceptable winners. I’m not going to expand further on that point here except to appreciate how the Trumpist shadow can cause those who fear an autocratic future to seek ways to elevate more moderates to public office. That’s an outcome I would like, too. The question on which we disagree is whether creating pretend winners and disregarding the value of majority preference will eviscerate deliberative democracy in order to save it.
Let’s consider another case. I’m well aware that over time the idea of a federal court system that neutrally “calls balls and strikes,” as Chief Justice John Roberts has described the Supreme Court’s role, has become as passé as bloomers and spats. The Supreme Court is as philosophically predisposed as any legislative body, the natural result when Presidents choose nominees who are in sync with their own political views and Senators reject or confirm the nominees depending on how much their views comport with the Senators’ own. Those of us who believe in liberal and deliberative democracy should not jump on the “judges as legislators” bandwagon.
Yet with the addition to the Supreme Court of three conservatives nominated by Donald Trump, important voices on the left have called on Congress to expand the size of the court to ensure that future decisions will be more favorable to a progressive agenda—packing the court with liberals while there’s a Democrat in the White House. Then, perhaps, when a Republican again occupies the executive mansion, the court could be re-expanded, until eventually it’s the size of the Senate, locking into place a government with one administrative branch and three de facto legislative branches. In their calls to reorganize the Supreme Court to provide the desired political outcome, court expansion proponents have made clear that democratic process means nothing to them. Their song is “I want what I want, and how I get it is irrelevant.”
But that, as it happens, is also the song of the political Right. The Left’s desire to expand the Supreme Court is simply a more honest approach than former Senate Majority Leader Mitch McConnell’s attempt to do the same thing by refusing to allow the Senate to even vote on a highly qualified nominee. The lack of concern for the traditional procedures of our democracy emanates with accompanying odor from all over the political spectrum.
There is no greater example of our polity’s scant interest in normative democratic processes than the ways in which Senate leaders of both parties have twisted filibuster rules to ensure the outcomes they want. A practice that could, in its best use, serve to prolong consideration before enactment of controversial legislation is being converted into a scheme to essentially eviscerate the ability of the Senate to do anything at all by simple majority vote, rendering the filibuster little more than a tool for ensuring a desired outcome. The idea of a deliberative body debating, compromising, winning some and losing some all in the practice of democratic representative government has long since been tossed aside.
This what-to-do dilemma, complicated by the looming danger of a second Trump presidency and the fallout from the first, is not solely about the Supreme Court or election systems or the upended norms of the Legislative Branch. Another response by those frustrated with political inaction is to turn a back to the concept of a limited democracy of separated powers. As Republicans in the Senate continue to block key elements of the Democrats’ legislative agenda, it has become commonplace to demand that the President act on his own through executive orders, proclaiming a unitary executive theory to direct government agencies to act without congressional authorization, or declaring national emergencies in order to act unilaterally. The truth is that, on this front, Democrats are well in line with the litany of non-constitutional powers claimed by President George W. Bush.
I understand the temptations to toss slow and cumbersome procedural democracy aside. I know the frustration and the cost of failing to act expeditiously, especially in light of the seriousness of many of the issues we face today, from mass slaughter by teenagers to inflation to climate calamities. To insist on preserving our democratic norms can sound like rearranging the deck chairs on the Titanic, and if rigging elections, going around our legislative representatives, and bypassing the “regular order” of congressional decision-making seem necessary in the moment, I can understand the siren call. It is, as the saying goes, hard to remember that you set out to drain the swamp when you’re up to your neck in alligators.
But I dissent. Liberal democracy is a precious thing—in the long run, it’s the only sure guarantor of our remaining a free people and a just society. It’s far better not to abandon the system but to double our efforts to make it work, to hold our elected officials accountable, and to eliminate the anti-democratic control exercised by political parties over our systems of elections and governance.
As we wrestle with the looming dangers of Trumpian authoritarianism, it is easy to imagine that we can take steps now to address pressing concerns—it’s an emergency, after all—and return to the normal ways of governance when the threat has passed. This, sadly, is not how things work. Patterns established tend to hang on. Allow a President with whom you’re compatible to end-run Congress and a precedent is set, applicable not merely to the President whose policies you favor but also to all Presidents who follow.
One example is the now-common belief that a sitting President cannot be indicted. It is a claim for which there is absolutely no constitutional support and that has no force of law, set out years ago by a group of lawyers working for the President—lawyers advising their client—and today repeated by journalists and scholars as though it were fact. Another example: Responding to the deadly September 11 terrorist attacks, Congress gave the executive broad authority to decide how to respond and against whom; more than two decades later, and now for a fourth President, the discretion remains.
I am no less frightened of a Trump-led descent into authoritarianism than my friends. It is a specter that must stir us to action taken with the greatest vigor and the most unflagging commitment. But as we try to save our democratic republic, let us not take our own path to undermining it.
How, though, can we achieve both ends simultaneously—prevent a descent into authoritarian rule and yet continue to embrace the principles of liberal democracy, principles that allow authoritarianism to rise? Let’s look at the examples I’ve set out above.
Election systems: Much has been written (including by me) about the gap between public preference and legislative action. In most states, and in the federal government, legislatures are heavily populated by men and women who received less (often significantly less) than a majority in their own party’s first-round election, after which in most states their primary competitors are not allowed to be considered by the larger general electorate. This gives a great advantage to those candidates who can best arouse the support of partisans and ideologues. If we want to increase the chances that “centrists” or “moderates” will be sent to the federal and state legislatures, the answer is not to narrow the field but to expand it and allow vigorous competition.
Two simple steps would solve this problem and produce more representative and—if we assume a majority of Americans are in the political center—less extreme legislators. First, eliminate closed partisan primaries (allow all candidates to run in a single primary, regardless of party) and, second, unless one of the primary candidates wins an outright majority, let the voters choose, in a final round of voting, between the two who received the greatest number of votes. For those who believe democracy requires that, within constitutional limits, the majority rules—the essence of constitutional self-government—we would have a government that is truly representative and has the advantage of having been open to all: democracy in a nutshell.
The Supreme Court: Elections are about democracy; courts are not. Statues designed to depict justice personified show her blindfolded—she does not see the litigants, cannot distinguish them from each other, knows not their predilections or circumstances, nor how they plan to vote in the next election. She knows what the law is and she knows what justice is (they’re not always the same), and on that basis, she rules. Nothing more undermines America’s claim to be a champion of liberal democracy than the transformation of its courts into settings for partisan warfare.
I can state that even more bluntly: If you believe it is the job of the Supreme Court to see to it that your preferred policy outcome is made law, you have no standing to proclaim a belief in liberal democracy. Courts as enforcement mechanisms for partisan policy preferences stand outside of, and are a danger to, a free society.
What, then, can we do about this danger? After all, it is also consistent with a democracy that one branch nominates candidates and another branch decides yes or no. There must be a nominating power and the Constitution is clear as to who that should be. There must also be a deciding power and the Constitution allows no wiggle room there, either.
The proper position for those who believe in liberal democracy should be the opposite of what they now propose; instead of advocating for expanding and re-expanding the Supreme Court, making a mockery of their claims to believe in the rule of law, they should be arguing for a hard-to-undo change in Senate rules to require a supermajority to confirm any candidate for a federal judgeship. To those who would argue that in such a case nobody would ever be confirmed unless one party vastly outnumbered the other in the Senate, I answer that they don’t understand the way a divided-power government works. Faced with the knowledge that nobody would be confirmed who would act as a de facto extension of the dominant party in the Senate, Presidents would be forced to nominate judicial candidates who could win support across the political aisle. That, not court-packing, is what a deliberative and norms-based democracy requires.
There are circumstances that call for agility and speed in public decision-making, such as if an armed force appeared ready to strike at the United States, a deadly and highly contagious virus were sweeping through the country, or a destructive tornado left the occupants of a community without shelter or power. In other cases, however, a slower process is to be desired. Liberal democracy is a matter of process, deliberation, thoughtful consideration. Filibusters are not for every occasion; often they impede rather than assist. But in some cases—deciding who should occupy a place on the highest bench, handing down decisions of wide-ranging effect—one would hope for a means of ensuring sufficient time to evaluate a nominee’s legal capacity, not whether he or she would line up with the wishes of party A or party B. Filibusters should be rare, however, difficult to maintain, and an option only when the desired end cannot be achieved in other ways.
Separation of powers: Finally, let’s look at the calls for more executive action, freed from the annoying requirement of getting the consent of the peoples’ representatives.
In 1973, when Arthur Schlesinger, Jr., wrote The Imperial Presidency, he could not have imagined how imperial it would become. Over the years, Presidents have usurped, or Congress has ceded, much of the First Branch authority the Constitution placed squarely in the laps of our national legislators. The badly conceived 1973 War Powers Act, intending to limit presidential adventurism in international conflicts, actually gave the President greater authority than he had before, while Executive Branch actors signed off on international agreements that conveniently avoided designation as treaties, thereby cutting the Senate out of the approval process. Makeshift temporary appointments evaded the confirmation process of senior political appointees. The presidency grew beyond its constitutional bounds and the legislature receded, taking the peoples’ collective powers with it. Executive Branch lawyers embedded in the Justice Department’s Office of Legal Counsel—presidential advisors, in effect—made declarations that gave the federal administrator-in-chief new powers that had no constitutional basis.
The problem has grown greater over time. In 2006, I served on an American Bar Association task force investigating, and eventually condemning, President George W. Bush’s repeated use of presidential signing statements that would enable him to essentially take congressional directives—i.e., federal laws—as advisory and decide for himself whether or not to obey them. Supported by his Executive Branch lawyers, Bush—who once referred to himself as “the decider”—also embraced an expansive view of the “unitary executive” theory, stating that he and he alone could direct the actions of the departments, agencies, and bureaus of the federal government.
When Presidents Ronald Reagan and George H.W. Bush sought the power to pick and choose among expenditures directed by Congress—the presidential line-item veto—they understood that they had to first persuade the Congress to grant them the power. How old-fashioned. Today, it is commonplace for Presidents to issue executive orders to bypass Congress, use outdated and limited legislation to claim ever-broader war authority, or declare emergencies to justify unilateral action. Members of Congress increasingly judge these actions to be good or bad based on whether the likely outcome is in line with their policy goals.
All of this, to a defender of liberal democracy, should be alarming. There are a million miles of philosophical distance between liberal democracy and an executive decider-in-chief. If we are to avoid an authoritarian future, activists on all sides of the political divide—and today, primarily those on the progressive left—are going to have to follow the lead of one of their own, House Speaker Nancy Pelosi, in her insistence that democracy depends on lawmaking being concentrated in the legislature, not the central headquarters of a self-proclaimed “decider,” whether that decider is cloaked in Republican red or Democratic blue. Reasserting, honoring, and championing a true separation of powers is the sine qua non of a professed belief in democratic governance.
If an executive agency moves money appropriated for one purpose to achieve a separate purpose without reprogramming approval from Congress, Republicans and Democrats alike should step in to prevent the shift and punish the disregard for the congressional mandate. If the Executive Branch agrees to undertake an action in partnership with a foreign power, Republicans and Democrats alike should insist on the necessity of legislative approval. If a President bypasses Congress to achieve what Congress would not approve, Republicans and Democrats should move quickly to block the executive action, regardless of whether it would have achieved one side’s desired goal. The rule of law and constraints on centralized and unilateral authority are not rhetorical playthings to be set aside when it’s in one’s interests.
Democracies are not self-sustaining. When their self-proclaimed champions abandon principle for preference, they become the inadvertent allies of the autocrat. Liberal democracy has its enemies; it should not also have to be defended against its friends.
Mickey Edwards is John L. Weinberg/Goldman Sachs & Co. Visiting Professor at Princeton’s School of Public and International Affairs. He is a former eight-term member of Congress from Oklahoma and former chair of the House Republican Policy Committee.
Image: Drapeau américain (Le Rouge), Gerard Fromanger, 1968. (Wikiart)
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