How to Fix Our Democracy
Democracy can come undone. It's not something that's necessarily going to last forever once it's been established. --Sean Wilentz , The Rise of American Democracy
Now that the Democrats' "100 hours agenda" has at least passed the House--and as Bush & Co. head toward retirement--the hard work of restoring our democracy must begin. For while the President frequently talks about exporting democracy, he has systematically undermined it here at home.
Not that this democracy was perfect before Bush had his way with it. If democracy means majority rule, minority rights and the rule of law, then the Constitution contained language that was far from democratic. Only men with property could vote. Blacks counted as three-fifths of a person. The Senate was not elected, and states of varying sizes had the same representation.
Yet despite this flawed start, our system evolved into a stronger democracy. Senators became popularly elected in 1913; women won the vote in 1920 and African-Americans forty-five years later. In the 1930s, '60s and '90s, Democratic administrations showed that a democracy could expand public healthcare, provide for old-age insurance, make products safer and clean the air.
This two-century advance has recently been reversed. A powerful group of new authoritarians in the executive branch, Congress, the clergy and corporations have expressed enormous contempt for the conversation of democracy. Trampling on the values represented by the flag far more than the couple of fools a year who actually burn one, these leaders pose a clear and present danger to our constitutional traditions. This quiet crisis of democracy--lacking the vivid imagery of a Hindenburg, a 9/11 or soldiers being shot in Iraq--has attracted very little attention. But a better democracy requires better policies. With the Democrats finally back on the offensive, it's time to repair the broken machinery of government.
The Democracy Protection Act--developed by the New Democracy Project, the Brennan Center for Justice, Demos and The Nation--can help us recover from Bush's assaults as well as fix structural flaws that have long diminished our democracy and frustrated majority support for progressive reforms. It identifies five key areas calling out for popular reform.
Taking liberties with the law.
Apparently, when Bush swore to "faithfully execute the laws," he took that oath literally. In just six years, his Administration has, in violation of the UN Charter, invaded a country, condoned torture, refused to seek warrants for wiretaps, leaked classified information for partisan gain, rounded up thousands of American Muslims without evidence, incarcerated hundreds at Guantánamo without charges, restricted habeas corpus and asserted the power to ignore hundreds of duly enacted laws--all because of an open-ended "war on terror."
For 200 years after Marbury v. Madison, courts had the final say on interpreting laws and the Constitution. Then Bush aides forwarded the "unitary executive" theory, according to which the President may nullify laws after signing them. He has produced 800 "signing statements" so far, asserting that if he thinks a law unwise, he simply won't enforce it--Marbury be damned.
When Bush, defending his flagrant violation of the 1978 Foreign Intelligence Surveillance Act, argued that the requirement of warrants for wiretaps could be ignored because of his "inherent powers" in wartime, it was too much even for a veteran of President Reagan's Justice Department. "This is a defining moment in the constitutional history of the United States," said Bruce Fein. "The theory invoked by the president...would equally justify mail openings, burglaries, torture or internment camps, all in the name of gathering foreign intelligence."
It took the Supreme Court--seven of whose nine members were appointed by conservative Republican Presidents--to remind Bush in both the 2004 Hamdi and 2006 Hamdan decisions that the rule of law is not a means but an end in itself. "A state of war," wrote Justice Sandra Day O'Connor in Hamdi, "is not a blank check for the President."
The legislative broken branch.
Under the recent DeLay/Hastert Congressional regime, Democrats were cut out of bill-writing while corporate lobbyists sat with Hill staff drafting legislation. Congress abdicated its checks-and-balances function entirely, becoming little more than a West Wing of the White House. The House held 140 hours of hearings, for example, into whether President Clinton used his Christmas list for fundraising and twelve into abuses at Abu Ghraib. Speaker Dennis Hastert would only schedule a bill for a vote if it had support from a "majority of the majority" party and would hold a vote open for as many hours as necessary to secure--i.e., arm-twist--a victory. Senator Hillary Clinton was right to call that system "a plantation."
But the crisis of democracy in our legislative branch has hardly abated just because the GOP was trounced in November. Money rather than merit so often determines elections that Congressional incumbents listen more to donors than to voters. Accountability has been further eroded by politicized redistricting, which means fewer and fewer competitive elections. The defeat of twenty incumbent House Republicans (it was five in 2002 and four in 2004) is not serious evidence to the contrary: A twelve-point polling spread favoring Republicans in 1994 led to a fifty-two-seat switch that year, while a larger, fifteen-point gap favoring Democrats produced only a thirty-seat switch in 2006.
There is also a stunning violation of democracy built into the Senate that should be part of any discussion about majority rule. Today California, with a population of 36 million, elects 2 percent of the Senate, while twenty-one other states with the same total population elect 42 percent. It's surely not "one person, one vote" when people living in the smallest states have twenty times the say as people in the largest. The Electoral College is similarly biased toward small, rural, largely red states--something to recall next time a conservative politician rails against a judicial filibuster or affirmative action.