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.
A democracy without voters.
By the gauge of electoral turnout, America is in the bottom fifth of democracies in the world. Compare our recent average turnout of 48 percent of eligible voters in presidential years to Cambodia's 90 percent, Western Europe's 77 percent and Eastern Europe's 68 percent. If there were a World Bank index of "democracy poverty," the United States would be a candidate for massive international aid.
In most states, cumbersome rules discourage the vote. Why should voter registration laws presume that thousands of 18-year-olds each find their way to an Election Board, instead of having one Election Board representative go to each high school?
In addition, local political operatives often suppress the vote in discriminatory ways, as we witnessed in Ohio in 2004. Beyond the well-known example of Republican officials intentionally failing to provide sufficient voting machines in low-income Democratic precincts, conservative activists also put up signs in African-American areas of Cuyahoga County telling voters that if anyone in their family voted illegally they could lose custody of their children, that they couldn't vote if they had unpaid utility bills and that Republicans were supposed to vote on Tuesday and Democrats on Wednesday! The intent of these and other crass intimidation tactics was plainly revealed in 2004 by Representative John Pappageorge, a Michigan Republican, when he said, "If we do not suppress the Detroit vote, we're going to have a tough time in this election cycle."
One way most states, especially in the Old South, suppress the low-income vote legally is through felony disenfranchisement laws. Even though they've "paid their debt to society," ex-cons in thirty-five states are deprived of the right to vote, which means, for example, that one in six black men in Alabama is excluded. Seven million Americans--or one in thirty-two--are currently behind bars, on parole or on probation, and they are disproportionately African-American and Latino. Felony disenfranchisement laws are just another way to spell Jim Crow.
Nor has the controversy over counting votes ended with those chads in Florida. While the 2002 Help America Vote Act properly required that states move to electronic voting (something Brazil figured out how to do a decade ago), many of the electronic machines used last November provided no paper trail, a failure whose repercussions are now on view in the continuing imbroglio over the Sarasota, Florida, Congressional seat. And as the Brennan Center for Justice has documented, most electronic machines are easily hackable. Will we find out in twenty years that a handful of Republican operatives re-elected W. by rigging some software in Ohio?
Secrecy and democracy.
Remember that early aphorism of the computer age, "Garbage in, garbage out"? Just as machines fail when fed corrupt information, democracy fails when important decisions are based on bad data or no data.
The good people of Salem, Massachusetts, were sure that certain women were possessed, and many Americans were convinced of the need to invade Iraq because George W. Bush downplayed the risks and hinted that Saddam played a role in 9/11. When ideology trumps facts, the results are often disastrous.
To insure a healthy democracy with plenty of well-reasoned debate, then, secrets should be kept to a minimum. Yet during the hot and cold wars of the twentieth century, as the late Senator Daniel Patrick Moynihan pointed out, a "culture of secrecy" took root in Washington. And the Bush Administration has deepened this culture, skillfully capitalizing on the calamity of 9/11 to hide information in the name of "national security" and concentrate authority in the "war President." Patrick Leahy, chair of the Senate Judiciary Committee, says, "Of the six administrations I've worked with, this is the most secretive."
The economics of democracy.
Economist Jeff Madrick, writing in 2003, asked some difficult questions as part of a lengthy analysis of the US economy: "Where does income and wealth inequality start to impinge on civil and political rights and on America's long commitment to equality of economic opportunity? Where does it both reflect a failure of democracy and contribute to its weakening?" When the head of ExxonMobil recently earned $368 million in a year--more per hour than his workers earn per year--it's not hard to see why Madrick concluded, "There is a good argument to be made that we are already there." The rich have become the super-rich, and middle-class families feel as if they're running up a down escalator. Even a snapshot of the data is convincing: In 1980 the wealthiest 5 percent of US households earned 16.5 percent of all income; in 1990 it was 18.5 percent; in 2000, 22.1 percent. Meanwhile, real median income for men has fallen for five straight years. The number of poor has increased from 31 million to 37 million since 2000, and the number without health insurance rose from 41 million to 47 million.
Not since the Gilded Age, when wealthy businessmen effectively appointed senators, has big business held such sway in Washington. Scores of laws and policies implemented by Bush 43--cutting job-training programs, eroding the minimum wage, slashing taxes on the rich and social programs for the poor--have hastened the tilt from labor to capital. George Bush has redistributed wealth far more than George McGovern was ever accused of--except up, not down.
Or as Louis Brandeis wrote: "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both."
Emergencies are easy ways to justify extremism, as radicals from Father Coughlin to Joe McCarthy have taught us. But today America is witnessing an authoritarian impulse from those at the highest levels of government.
When questioned two years ago about his failed policy in Iraq, Bush famously said, "We had an accountability moment and that's called the 2004 elections," casually dismissing the checks and balances built into our government for the 1,460 days between presidential elections. Last fall, former Speaker Newt Gingrich suggested that we suspend parts of the First Amendment during the "war on terrorism." In January White House press secretary Tony Snow said the President "has the ability to exercise his own authority if he thinks Congress has voted the wrong way." And now Bush and Cheney are implying that they can attack Iran at will, without any prior Congressional authorization, in clear violation of the Constitution and statutory law. We are edging toward what James Madison warned of, in a line cited in the Hamdan decision: "The accumulation of all powers legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny."
So just as the last half of the twentieth century saw a quadrupling of the number of democracies around the globe--just as, in the view of historian John Lewis Gaddis, "the world came closer than ever before to reaching a consensus...that only democracy confers legitimacy"--the world's oldest democracy is being systematically undermined by radical reactionaries. We are another Bush/Cheney White House, another DeLay Congress, another Scalia on the Court away from permanently losing our democracy. In six short years, George W. Bush has not only blown a large inherited federal surplus, he has also squandered an inheritance of centuries of democracy progress. That's not alarmist. It's merely descriptive of the quiet crisis our democracy now faces.
At a December colloquium on this subject in New York City, Bill Moyers (in a speech published in the January 22 Nation) observed that what America needs is not just a "must do" list from liberals but "a different story," one with the power to inspire us and challenge the prevailing conservative narrative of private = good, public = bad. That story is democracy. While theocrats and plutocrats pose as populists, it's essential that progressive patriots--for what can be more patriotic than democracy?--erect stronger levees to withstand the oceans of money, lobbyists and lawless officials threatening to drown America's constitutional traditions. For only then can our government represent the large majorities in favor of universal healthcare, stricter gun control, withdrawal from Iraq and more.
The Democracy Protection Act is offered up to officials, activists and citizens alike in the spirit of Walt Whitman, who wrote that "America is always becoming."