THE AMERICAN CONSTITUTION ON TRIAL, PART 2

The pride of the American Constitution is “checks and balances.” It is designed to assure that neither executive nor Congress is able to rule without the consent of the other. In Mr. Trump’s presidency, this balance of power is challenged.

However, checks and balances is not the Constitution’s only job. The country needs to be governed and the Constitution should provide for good governance. The duty of government, said George Washington, the first president, in his first inaugural address, is “the discernment and pursuit of the public good.”

It has become standard among observers of American politics that Washington is “dysfunctional.” The Constitution, then, is challenged not only in its ability to check power but also to provide governance.

The Constitution may well stand the test of Mr. Trump’s attempted power grab. That is not assured but is at least possible.

Whether it can be rebooted to do the job of providing good governance is more doubtful. The Washington system has been grinding into gridlock for a long time, and this problem is made more severe by the new chaotic presidency.

There is no single cause of Washington’s dysfunction. But one strong factor is the escalating power of money in political processes. The transgression of private money into democratic politics causes elected representatives to become beholden to the givers of money. American politics have become mega-expensive – actually have deliberately been made mega-expensive for the purpose of making money the ultimate political tool. Candidates and representatives cannot (mostly) hope to win or retain office without raising large amounts of money from sponsors. Sponsors are increasingly organised in PACs, super-PACs and otherwise. In this structure of sponsorship sits the power to decide who will be elected – those the money is willing to sponsor – and what policies they can promote and support when elected – those that are acceptable to the money. The result is Congressional gridlock. President Obama explained the problem with clarity in his final State of the Union Address: elected representatives are “trapped” by “black money” and not free to make policies for the public good.

The two main criteria of good governance are effectiveness and fairness. In a democracy in which money trumps votes, governance suffers on both criteria. There will not be necessary governance if it collides with organised monied interests. Such governance as there is, will be biased in favour of organised monied interests. You could not have a better description of Washington’s dysfunction.

While Congress is the institution to look to for the checking of presidential usurpation of power, the Supreme Court is the institution that needs shaking up to control the power of money. The Court has fallen under the spell of a bizarre theory according to which the giving of money to political cause is a form of expression of opinion and therefore protected by the freedom of speech clause in the Constitution’s 1st Amendment. It has accordingly chipped away at such limitations on the political use of private money as have existed in the American system. The Court the purpose of which is to protect American democracy is, by convoluted logic, presiding over its erosion.

How could the Supreme Court be checked? None other than Congress could do it. Is a dysfunctional and demoralised Congress, “trapped” by the workings of “black money,” going to take on the Supreme Court? Not likely.

THE AMERICAN CONSTITUTION ON TRIAL, PART 1

The Trump presidency is testing the American Constitution. Mr. Trump is going about the business of being president in bizarre and troubling ways. He started by showing an intention to govern by presidential decree and issuing presidential orders right and left. That did not go well. Many of his orders were ill prepared, many have been of little consequence, some have been slapped down by the courts.

It should, however, have gone worse. He set out to govern without Congress as an equitable partner. Congress did react, for example by turning down his initial health care “reform.” But Congress as such has not stood up to a president who has tried to side-line and diminish it as an institution.

Then followed a parade of executive incompetence and irregularity – in appointments, in a failure to make appointments and fill essential posts, in stimulating internal demoralising and chaos in the White House and the broader executive branch, in the spreading of misleading and untruthful “information,” in the boastful leaking by the president himself of sensitive security information to a foreign adversary, in an attempt to make the FBI an instrument of the president personally, in the firing of the FBI director who refused to comply, in various presidential actions to interfere with and pervert the course of justice.

The constitutional system has not failed to react. Congressional committees are investigating possible wrongdoings by the president and his team. The Justice Department has appointed a special prosecutor to investigate the same wrongdoings within a framework of criminal justice.

There should, however, have been more reaction. There is a power struggle going on. That struggle is for an imperial (if incompetent) presidency and against Congress. It is a messy and ugly power struggle, but unless the president’s usurpation of power is resisted, facts will be established on the ground and Congress will be further diminished. Congress has for years allowed itself to slip towards irrelevance. It is now as if a president with lust for power is exploiting Congress’s confusion about itself to govern unconstitutionally.

The pride of the American Constitution is “checks and balances.” It is designed to check the president so that he/she cannot attain despotic power. The framers assumed that presidents may incline to despotism and that such risks need to be controlled. It is possible, perhaps probable, that the Constitution will stand this test up against the kind of president the framers feared. But it is not assured. Mr. Trump has already lashed out against the Constitution itself as “archaic” and “a bad thing for the country,” and blamed it for the chaotic state of this presidency. A possible scenario is that Congress asserts itself to check the president, that the president takes this as an attack on himself and his mandate and fights back, and that the country is plunged into deeper constitutional crisis.

It is the responsibility of Congress to check the president. Congress may still do that. But so far, Congress has not risen above party politics to assert itself as an institution. Members of Congress, on both sides of the aisle, are still allowing the president to hold the initiative and mainly responding strategically by what is expedient for their own standing and electoral prospects. That’s what members of Congress must do, but it is not all they should do.

When a president persists in ruling against rather than with Congress, a time comes when Congress must stand up and act as an institution with independent judgement that goes beyond political expediency. Whether Congress would so do, is for now an open question. It is today a weakened institution which may not be able to harness the necessary collective will. An unpalatable president may win the power struggle and prevail over a further diminished Congress.

OUR UNPROTECTED DEMOCRACIES

Emmanuel Macron’s campaign in the French presidential election suffered a massive hacking intrusion days before the final vote, probably of Russian inspiration. It turned out to be of no consequence but nevertheless goes to show that democratic procedures are vulnerable to manipulation from outside. In the American presidential election, the Democratic campaign suffered similar intrusions, which there may have had some influence on the outcome.

A democratic polity is like a market economy: it only works if certain conditions are satisfied. A market economy only works, for example to generate fair prices, if there is effective competition. If one or a few dominant actors are in a position to rig prices, consumers end up paying more than they should and monopolies earning more than they deserve.

As a market economy depends on effective competition, a democratic polity depends on effective elections. Only if elections are free and fair will they generate outcomes that are representative of the balance of opinions in the population. If one or a few dominant actors have decisively more influence than other citizens or groups, the will be like market monopolists. They may rig election outcomes in the way market monopolists rig prices.

Since Adam Smith, economic theory has recognised the distorting influence of monopolies. It is therefore standard economic doctrine that markets need regulatory protection against monopolistic influence. It is also standard economic policy in most countries to exercise such regulatory protection (more or less efficiently, no doubt).

But political theory is less clear about the vulnerability of democratic procedures and their need for regulatory protection. Rather, in most democracies, the polity is wide open to being manipulated.

Hacking, such as that of Russian inspiration, is a primitive form of interference, and probably does not represent much of a danger, at least now that we are aware of the menace.

Another form of primitive interference is in outright cheating, such as to rig the count of votes or to destroy unwanted ballots. This happens, but is now not the rule in at least reasonably mature democracies.

The more sophisticated, and democratically dangerous, rigging is that which occurs during the process up to and before election day. Elections are free if no one interferes with the casting and counting of votes and fair if the process up to election day has been unrigged. It is here, in the process, that democracies are particularly in risk of monopolistic distortions.

Such distortions occur when information or nominations are manipulated. If one side is able to dominate the information that flows through the campaign, that side may secure itself an advantage over others come election day. If organised interests are able to more or less control nominations, they may win the election before anyone even casts a vote.

The one resource above others that may enable self-selected groups to attain monopolistic political influence, is money. There are other influences that come to bear but the infusion of private money into democratic procedures is the main culprit.

It is money that may enable determined organised interests to manipulate the flow of political information. With modern IT tools – big data analysis, orchestrated use of social media – the scope is enormous for systematic information manipulation, provided enough money is available to put in efforts on a serious scale.

It is money that may enable organised interests to manipulate nominations in their favour, again provided serious money is available. Here, the American case is the horror show. In a system of mega-expensive politics and non-stop campaigning, candidates for elected office are dependent on raising private money, whereby the givers of money have won control over nominations. If there is no hope of winning without private money, candidates whom the givers of money will not invest in need not try.

We know that democratic procedures need some regulatory protection. Well functioning democracies invest enormously in protecting the integrity of the vote. But we do not in a similar way protect the integrity of pre-voting procedures. We allow private money to transgress pretty freely into the domain of politics. (“Transgression” is the term coined by the economist Arthur Okun for money flowing from markets, where it has a job to do, to politics, where it is an alien influence.) That money WILL distort information and nominations because that is the purpose of the investment.

It is urgent to give democracies regulatory protection against the monopolistic influence of dark money. In his final State of the Union Address, then President Barack Obama called on his fellow Americans that “we fix our politics” to prevent “democracy from grinding to a halt.” That’s strong language from a president, but he was right (and it was he who coined the term “dark money”). With the overpowering influence of money, as now in the American system, Obama explained, representatives are “trapped” and not free to make policies for the public good. And further: “We have to reduce the influence of money in our politics, so that a handful of families or hidden interests can’t bankroll our elections … and democracy brakes down.”

America is an extreme case but it would be a mistake to think that other democracies are clean. British democracy, for example, is shot through with the corrupting influence of private money. The need for regulatory protection is universal in the democratic world.

That the need for such protection of democratic procedures is poorly understood is in evidence in the American Supreme Court. This Court has fallen under the spell of a bizarre theory according to which the giving of money to political cause is a form of expression of opinion and therefore protected by the freedom of speech clause in the Constitution’s 1st Amendment. It has accordingly chipped away at such regulatory protections as existed in the American system. The Court the purpose of which is to protect American democracy is instead, by entirely convoluted logic, presiding over its erosion. It is also giving ideological coverage for practices of transgression elsewhere.

So there is a theoretical battle here, which should be waged primarily against the American Supreme Court, and there is a practical battle of regulatory policies, which should be waged everywhere.

PARTICIPATION II: THE IMPORTANCE OF VOTING

In the dramatic events of 2016, Brexit and the Trump victory, one lesson must be clear: the importance of voting. In both events, if more voters had turned out to vote the results would almost certainly have been different.

It may not sound exciting or innovating, but those of us who care for democracy should take care always to uphold the sanctity of the vote. Back to basics: Vote! Do not diminish the vote by over-theorising about alternative forms of participation.

With low voter turnout, as traditionally in America, it can be enough for a relatively small constituency in the population to mobilise to carry the vote. This, by all accounts, is what happened in enough states to hand the victory to the Republican candidate. In Britain, the young are predominantly in favour of the European Union. If more of them had voted, the tightly balanced referendum would probably have swung the other way.

There is a tendency now in many democracies for more citizens to not vote. That, paradoxically, includes many of the young who are intensely engaged in social and political issues. It doesn’t matter, they say, it’s all the same. WELL, we now know that it isn’t all the same and that it does matter. Many of the young prefer other forms of participation, in single-issue campaigning, manifestations and the like. That’s well and good but is not an alternative to voting. The vote is the core instrument of democracy and electoral democracy does not work unless enough voters go to the polls. If you don’t vote, you must take what you get and it is too late to complain and protest afterwards.

There is a tendency in some corners of political thinking to hold up participation and activism as an alternative to voting. In a recent roundtable I was in at an American university, one of my co-participants made the case that American democracy remains vibrant thanks to many citizens being engaged and making themselves heard, for example in demonstrations. Of course, citizens should keep up the pressure on their representatives between elections. But if they turn their backs on democracy by not voting, they cannot compensate with other forms of activism later.

The political competition is over power. Democracy is a way of allocating power peacefully and holding its exercise under control. If you don’t vote, you let others decide who will hold power over you. If you don’t vote, you do not represent a threat to those who hold power that you can take it away from them at the next election. When the vote is over, the power game is decided and can then not be undone by after-the-fact protestations.

In America, on the day after President Trump’s inauguration, millions participated in demonstrations across the country around issues of women’s rights and dignity. This was probably the largest day of organised protest is American history with about one in every 100 Americans participating, with brilliant timing, in a glorious day for a righteous cause. However, the man the protests were directed against had the day before taken hold of the reins of power and there was then nothing anyone could do about it. It is right to make one’s voice heard. It is gratifying to see it done on a grand scale for a worthy cause. It is satisfying to participate and to be there with all the others. But the sad truth, once the power game is decided, is that protestations, even on a massive scale, unless kept up relentlessly for a long duration, is of little consequence. In the vote, if we use it, we the people have power. In demonstrations, we are the powerless.

IS DEMOCRACY COMING TO AN END IN AMERICA?

This ought to be a frivolous question, but it no longer is. No less of an authority than President Barack Obama has issued the warning. In his final State of the Union Address in early 2016, he called on his fellow Americans to “fix our politics” to prevent “democracy from grinding to a halt.”

Donald Trump’s victory in the presidential elections has caused more observers to question the health of democracy in America, such as for example Professor Robert Reich, former Labor Secretary in the American government. However, the challenge to American democracy does not come from the election of an anti-establishment outsider, however outrageous he may be, but from a combination of two circumstances: the coming to power of a president with disrespect for democracy at a time when democratic institutions are already weakened.

What has eaten into the democratic foundations in America, more than anything else, is the power of money. The system is rigged in favour of the rich and of special interests. Washington perverts into collusion between big politics and big money. There is gridlock in government and anger in the heartlands. What is broken is finally we-feeling in the population and trust between people and government.

There are also other, if less dramatic, institutional distortions. During the last two or three administrations the balance of power between the main branches of government has been upset so that Congress has gradually lost authority. From one side, a politicised and unrestrained Supreme Court has usurped powers it should not have and made itself not just a guardian of law but a maker of law. From the other side, the Presidency has usurped other powers to govern without the collaboration of Congress such as in the widespread use of “signing statements” to limit his duties of implementing Congress’s laws and “executive orders” to govern without the consent of Congress.

The remarkable thing in the destruction of political equality and the pincer movement by the other powers against Congress, is that Congress itself is entirely passive. President Obama said that elected representatives are “trapped” by their dependency on raising ever more “dark money.” Congress has made itself an observer from the side-line to the deterioration of the Constitution.

Into this morass of institutional weakness steps a radical anti-politician. The inclinations of the person who becomes president, although constrained by checks-and-balances, matter enormously for the character of governance. American democracy is in need of repair. It has instead got a wrecker at the helm.

President Trump is not a man of democratic instinct. Of course, we observers from afar cannot know much about his true personality but it is to take him seriously to listen to what he says. He ran an outrageously ugly campaign based on anger, on fear of the other, on stimulating base mob instincts, on prejudice, on misogyny, on disregard of truth and facts, on disrespect for disagreement. He threatened his opponent with retribution and violence and held up the spectre of mass, possibly armed, action, having refused to commit himself to accepting the election result were it to go against him. He has been described, by competent expertise, as a world-class narcissist.

On the substance of his policies, we are starting to see the outlines, which are consistent with the persona we saw in the campaign.

  • A continuation in government from his habit in the campaign to disregard the truth and to use untruths as a method of working. The denial of truth and the propagandistic use of untruth is the method of dictatorship.
  • A systematic assault on the country’s free press. Journalists are collectively “dishonest” and what they produce is “fake news.” This is damaging. We are already into a Kafkaesque nightmare where the very meaning of truth and fact is being destroyed.
  • A continuation of disrespect for disagreement. An actress who speaks her mind gets clobbered, from the position of the Presidency, as “overrated” in her profession. A judge who rules according to the law, is branded a “so-called” judge. The White House spreads fear in the country.
  • An apparent uncontrollable urge to pick fights: with those who might disagree, of course, but also with his own administration and the intelligence services, and internationally with allies, such as the European Union, NATO and the neighbouring country of Mexico. A disregard for the duty of a powerful nation’s leader to make himself informed about matters he pronounces on. Washington spreads fear in the world.
  • A blustering use of executive orders, fortifying a precedent for governing without the collaboration of Congress. The deterioration of the Constitution continues.
  • And more drip-drip use of dictatorial methods. A lack of willingness to answer and inform, such as on his and his administration’s possible relations to an internationally aggressive Russia. Governance by prejudice, such as his (failed) attempt to ban all citizen from certain predominantly Muslim countries.

The administration is being ridiculed for being a mess. But that is to underestimate what is happening. This president came into office in an American democracy of institutional fragility. He has started to govern in ways that render the institutional foundations yet more fragile. The American polity needs an injection of trust but is getting ineffective and unsafe governance.

And whose fault is that? The American Constitution is designed to prevent any single president from doing much harm. But when President Obama says “fix our politics” he is really saying that the constitutional institutions are not what they should be. The Trump Presidency is unattractive, but it is Congress, finally, that is not doing its job.

THE DESPERATE NEED FOR DEMOCRATIC REFORM

From a previous blog: “The trouble for democracy, at this time in history, comes from our own poor ability to reform.”

Here is a short list of pending reform issues:

We need systemic economic reform. Societies that define themselves by security and inclusion cannot live by deprivation and division. Globalization and automation, the targets of the politics of discontent, come with enormous benefits in the form of affluence and quality of work and life. But we have not found a way of combining this progress with inclusiveness. To underwrite democracy under advanced capitalism, we need a new social contract. The shallow individualism and small-government gospel of Reaganism and Thatcherism has shipwrecked. Before inclusiveness in public policy must come inclusiveness in mindsets. It is a matter of nothing less than the reinvention of democratic political culture.

In Europe, the mindset of reform needs to include the European Union. British and European leaders should swallow their pride and sit down to devise a reformed union that can embrace all of Europe. The European Union is already a structure with many different forms of adhesion, from Swiss and Norwegian types of quasi-membership, via various combinations of inside and outside of the Schengen and the euro, to the comprehensive arrangements of the full-membership countries. Flexibility has proved to work and is now needed in respect to Brexit and to pre-empt other possible exits. Brussels may have to sacrifice a battle to win the war, but better that than to lose the war.

In Britain, the time is over-ripe for constitutional reform. It is a misunderstanding that Britain does not have a written constitution just because constitutional provisions are not collected into a single document with “constitution” its heading. But the constitution is poorly protected and open to political manipulation. The Brexit referendum was called by Prime Minister Cameron ahead of the 2015 general election for opportunistic party-political reasons. If they can, politicians of the day will manipulate the constitution for their own advantage. That should not be possible. By coincidence, the week after the vote, the Chilcot report of the inquiry into Britain’s participation in the 2003 invasion of Iraq and its aftermath was published, with deep criticism of a dysfunctional system of decision-making which resulted in colossal mistakes both on the entry into war and post-war management. Britain does not have a safe system of political decision-making.

In America, what burst through the surface in 2016 was the pent-up pressure from a long, relentless, step-by-step erosion of political culture in which big business has fortified itself as the power behind the throne. The reason there is gridlock in Washington is that the holders of office, in Congress in particular, are not free to make policies for the public good. When big money is allowed to transgress massively into politics, those who control it gain power to decide who the successful candidates will be—those they wish to fund—and what they can decide once in office—that which is acceptable to those who hold the purse-strings. The representatives, or most of them, may not be personally corrupt, but the system in which they work is one of deep collusion between big politics and big money. It is a misunderstanding that politicians chase money; it is money chasing politicians.

Read the full article in the Cairo Review.

ELECTIVE DICTATORSHIPS

In America and Britain, the world’s core democracies, the legislatures, Congress and Parliament, are the weak link in the system of governance and in danger of marginalising themselves towards irrelevance.

We the people elect lawmakers to make important decisions on our behalf. An executive is constituted to collaborate with the legislature in the preparation of policies and to put into effect the lawmakers’ decisions. Among several reasons for this double structure of governance is that it increases the likelihood that decisions are well prepared and that governance will be effective. That’s part of the case for democracy.

Dictatorships do not have a similar double structure. There the making of law and the implementation of law is in the same hands. That increases the risk not only of despotic policies, but also of badly prepared decisions slipping through because there is not enough scrutiny in the process.

A problem with the democratic double structure is that there tends to be a tug of war between the legislature and the executive about who should do what. The executive invariably wants to dominate. If that is allowed to happen, the benefit of double structure scrutiny may go lost and democracy pervert towards de facto dictatorship. It falls on the legislature to stand up to the executive’s inclination to dictate.

In Britain, the tug of war has become visible in the preparation for Brexit. The government initially insisted that it should be in charge (by “royal prerogative”) with little or no involvement of Parliament until the government had negotiated a new deal with the European Union. However, that attempt by the government to claim for itself powers that belong to Parliament, failed when the Supreme Court ruled that the government did not have the authority to trigger Brexit without a formal decision by Parliament.

However, the remarkable thing in this process was that Parliament itself was unable to stand up to the government’s assault. We had the undignified spectacle of individual MPs appearing on the evening news and demanding that the government involved Parliament, while Parliament itself had no voice in the matter. Only when a private citizen brought the matter before the courts, could they lay down the government’s duty to collaborate with Parliament.

The government responded with issuing a Brexit Bill, as it then had to, but continued the battle for dominance. The Bill is only 130 words long, with no detail, and Parliament was given only five days to deal with it. Again, the spectacle of individual MPs popping up to complain and demanding that the government gives them more time. But Parliament itself has no voice in deciding on its own procedure.

In America, Donald Trump was inaugurated into the presidency and set about issuing a flurry of “executive orders” with wide reaching consequences. In so doing, he was claiming for himself the authority (the American version of “prerogative”) to make new law without involving Congress. This turned into a case study in the risks inherent in decision making without scrutiny. One sweeping order suspended entry into the country of all refugees for 120 days, of Syrian refugees indefinitely, and of all citizens of seven predominantly Muslim countries for 90 days. This was a manifestly bad decision, with unforeseen consequences galore and bringing global condemnation down upon America, a result of the decision having been badly prepared or not prepared at all. It was also a despotic decision, setting aside established American law in the matters concerned.

The order on refugees was brought before the courts by civic groups and immediately set aside as unlawful, at least in part. The remarkable thing, however, as with Parliament in Britain, was that Congress itself had nothing to say about the executive’s usurpation of legislative power. Some members of Congress grumbled but Congress itself said nothing.

At the time of writing, the outcome of these tugs of war is unknown. Meanwhile, the respective governments come under criticism for being power hungry and ruling autocratically. That criticism is valid, but superficial. The executive will, if it can, grab power. It is for the legislature to prevent it. In both America and Britain, the weak link in the system of governance is a legislature, Congress and Parliament respectively, that does not assert itself and fails to do its constitutional job. It is when the legislature fails that democracy can pervert towards elective dictatorship.