//  10/29/18  //  In-Depth Analysis

Take Care is pleased to host a symposium on How To Save A Constitutional Democracyan important new book by Aziz Huq and Tom Ginsburg.

By Justin Florence | Legal Director, Protect Democracy

Tom Ginsburg and Aziz Huq have written a fantastic and important book in How to Save a Constitutional Democracy.  The early chapters provide a thorough taxonomy for understanding what makes a liberal constitutional democracy—and for appreciating what can happen to it.  The authors’ classification of the mechanisms of democratic erosion, which draws on overseas examples (Chapter 4), is impossible to read without thoughts of what we are seeing in the United States.  And the following chapter— “Will American Democracy Persist?” —makes clear that we cannot take for granted that the answer is “yes.”

Huq and Ginsburg’s book reads a bit as a mission statement for Protect Democracy, the nonpartisan, nonprofit organization where I work.  (Professor Huq is on our board of advisors). Our mission is to prevent U.S. democracy from declining into a more authoritarian form of government.  When we formed the organization in the aftermath of the 2016 election, we were concerned that conduct we had seen during the 2016 campaign and transition seemed discordant with basic democratic rules—less like America as we knew it, and more like what we were seeing from authoritarians overseas in places like Hungary, Poland, and Turkey.  

When we first conceived of the organization, we saw the principal threat to U.S. democracy as Donald Trump.  If he could be constrained, we figured, then we could declare mission accomplished. But as we began to speak to comparative democracy experts—including Prof Huq and other scholars cited in this book—we quickly realized the threat to U.S. democracy is deeper and more sustained than any one president.  

This is true is two important ways. First, American democracy has always had its flaws. As Huq and Ginsburg observe, the lack of franchise for minorities and women across most of our history is the most tangible example of a democratic failure. And second, Freedom House’s 2018 report notes that this year marked the seventh straight year of democratic decline, going back to the early Obama Administration.

In this context, Trump is an effect, not a cause, of our weakened democracy. He exploited these weaknesses with powerful messaging and communication, but also little knowledge of how to leverage government to cement his power.  A passage in Huq and Ginsburg’s Conclusion asks us to imagine a future leader with Trump’s rhetorical style, Lyndon Johnson’s ability “to exploit skilfully the American machinery of government, and the long-term ambitions and tactical sophistication of a Vladimir Putin.”  That’s the concern that we can’t ignore.

Huq and Ginsburg’s call to take seriously the threats to our democracy is so persuasive that their book might rightly be called Why U.S. Constitutional Democracy Is in Need of Saving.  But let me focus on “How to Save” it, with four concrete suggestions for what we can do:

1.  Promote legislative reforms to strengthen democratic institutions.  

Huq and Ginsburg are right that we need legal reforms to strengthen democratic rules and institutions.  Such rules can help harden the guardrails of our democracy, making it less likely that democratic erosion will occur in the future at the hands of a Trump/LBJ/Putin figure.  This July 4, Protect Democracy released our Roadmap for Renewal: A Legislative Blueprint for Protecting Our Democracy, in which we proposed 21 reforms in 5 buckets.  Many of these overlap with specific proposals that Huq and Ginsburg offer in Chapter 7 (“Saving Democracy, American Style”)— including, for example, a statutory Bivens remedy for constitutional damages suits against government officials; statutory prohibitions on certain White House interference in Department of Justice matters; enhanced protections for civil servants against political interference; and new oversight powers for the minority party in Congress. 

These types of proposals do not favor one party or another and do not reflect any particular policy outcomes; they’re the types of ideas that both parties should support. As Jennifer Rubin wrote while responding to our proposal in the Washington Post:

What is remarkable is the vast number of policy items on which right, left and centrist Americans should be able to find agreement. The focus on encouraging robust debate, countering foreign influence in elections, promoting fact-based government, protecting a free press, cutting back on the dramatic expansion of executive power and strengthening a nonpartisan justice system should find near universal praise — except for those, of course, who have cheered Trump as he has tried to crush each one of these vital aspects of our democratic system.

In the aftermath of Watergate, Congress passed a slew of measures to check executive abuses, including reforms on ethics, campaign finance, war powers, and intelligence oversight.  We need another similarly ambitious set of reforms now in light of the new risks to U.S. democracy that Trump—and others like him overseas—have exposed. As Huq and Ginsburg note, no one of these legal and institutional reforms will save democracy on its own.  But they can begin to harden the guardrails to make it more difficult for a prospective tyrant or demagogue to achieve and maintain power.

2. Support Congressional oversight focused on anti-democratic abuses

Of course, we can’t be naive and assume that even if Congress passes these measures, President Trump would sign them into law.  But under existing law even a single House of Congress has substantial power to check anti-democratic actions and build the foundation for future legislative reforms.  Whoever holds the House and Senate committee gavels in the next Congress should use them to investigate and draw public attention to the abuses we’ve seen from this presidency.  That need not be a partisan political endeavor; much of the most important oversight work involves separation of powers issues and Congress protecting its own institutional interests.

In addition to the most obvious oversight targets (foreign interference in our elections and Trump’s personal emoluments and conflicts of interest), we’ve proposed a series of 14 investigations that should top the next Congress’s agenda.  These focus on abuse of presidential powers (like pardons and security clearances); politicization of independent institutions (like the census and civil service); and basic failures to act on behalf of the American people (for example the hurricane Maria response and inadequate election cybersecurity).  If done properly, each of these investigations can build the legislative record and public support for the types of legal and institutional reforms that Huq and Ginsburg propose and that are in our Roadmap for Renewal.

3. Demand leadership by the 2020 presidential candidates of both parties

We’re right around the corner from the start of the 2020 presidential campaign.  And the 2020 candidates—from both parties, if Trump faces a primary challenge—can play a crucial role in arresting democratic erosion.  These candidates will drive the agenda for how we think about American democracy, for better (proposing reforms like those described above) or worse (undermining the ability of voters to participate and have confidence in elections).  

Those who take seriously the warning signs in Huq and Ginsburg’s book should pressure candidates to compete with each other to offer bold and thoughtful reforms for our democracy.  Axios recently described a “2020 ideas arms race” among Democratic presidential candidates—but not one of the ideas it addressed is about protecting or renewing our democracy.  That needs to change. True, kitchen table issues like jobs and health care play better politically, but candidates (and lawmakers) have to focus on the foundations of our democracy too. 

Candidates should also consider pledges about how they will comport themselves in office—for example, that they won’t use the Justice Department to go after their political opponents and perceived media critics; that they won’t invite foreign interference in our elections; and that they will seek to allow all Americans to participate in our political process.  These pledges shouldn’t be controversial, but the mere act of making them can remind people how our democracy should work and restore some key baselines of our democracy that we’re too quickly losing

4. Frame Trump-resistance work around democratic institutions

Finally, until Congress and a new President can enact much-needed reforms to renew our democracy, we and other lawyers (including many of the participants in this symposium) must continue to litigate against Trump’s most dangerous and anti-democratic actions.  This work is important in its own right, especially for the most vulnerable communities who have been such targets of this Administration. But it can be even more powerful if framed and developed as supporting foundational principles of our constitutional democracy and not just as opposing Trump.  The emoluments cases brought by CREW and the Constitutional Accountability Center, among others, are a great example of how litigation against Trump can defend key principles of constitutional democracy. We’ve done this work too, for example on the First Amendment and opposing aggressive claims of presidential immunity.  It should continue.

* * * * *

One especially worrying section of How to Save a Democracy comes in the discussion of how democracies can erode at the hands of a charismatic populist autocrat or through partisan degradation.  The latter can occur if one side “win[s] really convincingly”— and so doesn’t mind “disregarding the rules of the democratic game.”  I read that passage as commenters were noting the extent to which those who hold power in all 3 branches of our government now do so even without having the support of the majority of voters, let alone winning “convincingly.”  The upcoming midterms could begin to change that, or alternatively the President’s party could continue to control Congress as a result of the undemocratic makeup of the Senate and partisan gerrymandering of House districts.  Important as the results will be, as Huq and Ginsburg remind us, protecting democracies is not a matter of any one election. However things look on the morning of November 7, there’s a long road ahead to save our democracy. But Huq and Ginsburg have pointed to some key tools for doing so—and I look forward to reading still more ideas from other participants in this forum.

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