Dead Democracy Walking

Posted in: Government

I have been predicting for the last several years that the United States is on the precipice of ending its experiment in representative democracy, through which we have enjoyed the benefits of living under the rule of law. As far back as June of 2016, I argued here on Verdict that the election of Donald Trump would bring with it “the end of constitutional democracy in the U.S.,” and I have kept up the drumbeat ever since.

Many smart and well-meaning people told me that I was being overly dramatic, because the United States has been blessed with strong institutions that could easily withstand the depredations of a blundering narcissist—and at the very least because Americans would not tolerate an attack on the foundations of their democracy.

One scholar told me in 2019 that Trump did not even like being President and would probably resign if he were to win reelection in 2020, having proved that he could win again. That was outlandish even at the time, but the person who offered this theory was simply casting about for arguments as to why there was no need to panic. And I was most definitely panicking.

In the lame duck period between Election Day and Biden’s inauguration on January 20 earlier this year, some readers even argued that I and others were overstating the case in describing what Trump was doing as an attempted coup. Those arguments were, unfortunately, soundly defeated by reality.

Even more unfortunately, the reprieve that we experienced when Trump did in fact leave office by no means proves that we are in the clear. Indeed, the reprieve will be quite brief. By 2022, or 2024 at the latest, we will see that the American political system has been hopelessly corrupted, with Republicans having successfully ended any serious prospect of honest political competition. What does that mean, both conceptually and as a prediction of the country’s future?

What Is a “Dead Democracy Walking”?

I plan to stipulate in every future Verdict column that the United States is—as I put it in the title of today’s column—a “dead democracy walking.” Because that metaphor can be used in at least two ways, I should be clear about what I mean.

In the movie of the same name that won Sean Penn his first Oscar nomination, a dead man walking was a death-row inmate who was on his way to being executed. He was literally walking to his death, with his fate already decided. Notably, however, if such a person were to be saved from the death chamber by a last-minute call from the governor, he would not otherwise die (other than at the end of his natural life, for some reason other than being put to death at the hands of the state).

By contrast, I am using the image of a dead person walking as someone who is already mortally wounded but has not yet died. Perhaps after ingesting poison that has not yet shut down bodily functions, or after being stabbed and in the process of bleeding to death, a person can be effectively—and irreversibly—doomed, where the only question is when motor functions will cease and the body will hit the floor.

It is in that latter—much worse—sense that I am describing the United States as a dead democracy walking. That is, what I am predicting is not a question of if, but when. The death blows have already been delivered, and we are now waiting for the temporarily conscious victim to succumb to those fatal injuries.

Is it truly that hopeless? I believe that it is, but I should be clear that this is no reason for people to give up trying to prove me wrong. Even with that admission that I do retain a glimmer of hope, however, it is important to understand that hope is not a plan for success. Sometimes, hope is nothing more than hope.

The Death Blows, and the Vanishingly Small Possibility of Miraculous Survival

Earlier this year, I wrote two columns describing how the country’s electoral system was being irreversibly destroyed. In the second of those columns, on April 1, I summarized how Republicans could exploit (indeed, were already exploiting) any among a list of vulnerabilities in our system to turn this country into a one-party autocracy:

Republicans at the state level could suppress enough votes for their man to win. If they failed to do that, they could set up their electoral processes such that they could invalidate enough votes to win. If they failed to do that, they could have the legislature award the electoral votes to the Republican. If they failed to do that, congressional Republicans in Washington could refuse to recognize key states’ electors.

Again, successfully corrupting any one of those processes would be enough to make our elections meaningless. Trump in 2020 pushed the limits on each of them, and we just barely survived the onslaught. Ever since, Republicans have been trying frantically to make sure that at least one of those necessary conditions for a healthy democracy will be corrupted or neutralized.

As time has passed, those of us who were once dismissed as alarmists and Chicken Littles have seen the vast majority of people outside of the Republican bubble come around to our view that, at best, democracy in the United States now hangs by a thread. Violent insurrections tend to concentrate people’s attention in that way—especially when such an insurrection is followed by months of denial and revisionist history from growing numbers of Republican leaders.

On June 1 of this year, a group of dozens of this country’s most respected, sober-minded scholars of democracy signed what in another time would have been viewed as an extraordinarily over-the-top “Statement of Concern,” but which now seems if anything understated. Pointing to “the recent deterioration of U.S. elections and liberal democracy [that is] transforming several states into political systems that no longer meet the minimum conditions for free and fair election,” they concluded ominously: “Our democracy is fundamentally at stake. History will judge what we do at this moment.”

That was almost three months ago, and the statement was intended to convince Senate Democrats—particular the two most operatic holdouts, Joe Manchin and Kyrsten Sinema—to do what is necessary to protect democracy, even if that meant ending or suspending the filibuster to do so.

As of this writing, the filibuster stands unchanged, and the prospects of passing federal legislation to protect voting rights and safeguard free and fair elections are remote. With the filibuster in place, it would take ten apostate Republicans to agree with Democrats to prevent other Republicans from ending American democracy. Do those heretics exist?

In the Senate’s vote in June simply to begin to debate the “For the People Act,” all 50 Republicans voted no. Senator Lisa Murkowski has subsequently offered some verbal support for more limited pro-democracy legislation, but she has candidly admitted that there are nowhere near nine others in her caucus—if any—who would go along. This is not even like Trump’s second impeachment trial, where seven Republicans knew that their votes were not enough to change the outcome but went ahead and decided to vote to convict. There is, in short, no prospect of a bipartisan Senate vote to save democracy.

In the House, a recent vote on another bill—the “John Lewis Voting Rights Restoration Act”—received exactly zero votes from Republicans. Although the House is not cursed with the filibuster, meaning that the bill passed with a majority of the votes (but will die in the Senate), House Republicans’ unanimity is important in showing that even the people who supposedly believe in something other than pure partisanship—especially Representatives Liz Cheney and Adam Kinzinger—are perfectly willing to allow their state-level colleagues to overthrow the U.S. political system, so long as there is nothing so messy as an insurrection involved. As admirable as it is that those two continue to condemn the January 6 attack on the Capitol, that is simply not enough. And it is worth remembering that the John Lewis Act had seemed to be the bill most likely to receive at least some Republican support, because it mostly tries to restore the status quo ante that the Supreme Court’s conservative majority destroyed in Shelby County v. Holder. It is a much narrower bill than the For the People Act, yet not a single Republican voted for it.

And both of those bills are essential for us to have a prayer of reversing course. The passage of time alone has made it possible that even passing those bills tomorrow could be too late, because so much has already happened to move us in the wrong direction. Moreover, there is every reason to worry that the Supreme Court’s ever more conservative current majority will gleefully undo anything that Congress might do at this late date.

In light of all of that, what could yet happen to save us? It would be tempting to say that a sufficiently large turnout of Democrats in 2022 and 2024 could do the trick, but that is true only if one assumes that Republicans have not already made it possible to exclude from the final counts as many votes as needed for them to install their candidates in office. I suppose an overwhelming groundswell might be too large to ignore, but Republicans have shown that they are very capable of doing overwhelmingly unpopular things, on issues ranging from gun control to abortion rights to immigration and beyond, getting away with it every time.

And I cannot end this part of the discussion without pointing out that the American press corps has again proved itself incapable of calling Republicans on their outrages. For example, coverage from even supposedly left-leaning mainstream sources regarding the Afghanistan situation is, to put it mildly, dangerously slanted against President Biden. The press, just as it always has, is treating everything as an insiders’ political game where both sides are equally wrong. How can we expect the public to vote in sufficient numbers to overcome the hurdles that Republicans have put in place, when they continue to hear the message that both parties are equally bad?

In the end, then, it seems that we are merely waiting for the end. It is not entirely impossible to picture a better future than I am predicting, but it is as close to impossible as I could imagine. We were never by any means a perfect constitutional democracy (having only had something roughly resembling widespread voting rights for about the last fifty-six years, among other obvious flaws), but what is happening now is categorically different.

Scholarly Analysis When It Is Already Too Late to Prevent Disaster

In the shadow of that tragic reality, I have recently been asking myself a very self-interested question: What is the point of continuing to write about American policy, law, and politics?

Indeed, today’s column represents a turning point in my writing for Verdict (and on Dorf on Law). This is the last time that I expect to describe why America will soon become a one-party autocratic state. Future columns will follow a common structure: identify an issue, stipulate that my analysis is likely to become obsolete when the country’s rule of law finally ends, and then gamely (or, perhaps stubbornly) analyze the identified issue as if the country’s anti-democratic future is not already ordained.

But honestly, why bother? New York Times columnist and renowned economist Paul Krugman asked that very question earlier this summer. Conceding “that there are many people trying to save democracy, and rightly so,” he was despondent about the prospects of success. So why continue? His answer was rather weak tea:

But meanwhile things like tax policy must be made, and it’s still important that we try to do it right. …. So I guess we should all do the best we can, even though you have to be oblivious not to realize that political catastrophe may overtake everyone’s best efforts.

Even though I am less than overwhelmed by that argument, I have adopted it for myself. What else is there to do, after all? Whereas I was once among a small group of Cassandras warning of disaster, disaster is now nigh, and there is nothing more to be said on that score. Meanwhile, even under one-party rule, it is at least possible to imagine better and worse versions of economic or other types of policy, where Republicans themselves might not be in lockstep in supporting the worst option. It seems better to try to contribute to the conversation rather than simply check out.

Alternatively, I will in some cases return to thinking about what a post-democratic America will look like, as I did briefly in early 2020 (e.g., “Banana Republic or Legalistic Lawlessness?”). Either way, my analysis will proceed from the assumption that democracy will soon be dead in this country.

No one should be under any illusions about what has already happened. As much as anyone, I would like to be convinced that our constitutional democracy is not in an inescapable death spiral. Those who can find ways to undo the damage need to step up now, if such options exist. In the meantime, I will turn my attention back to mundane matters of policy, and to sketching out depressing predictions about post-democratic life. It is a way for us all to stay busy and distracted, at least.

Posted in: Government, Politics

Tags: Democracy

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