The Democratic Emergency

AP Photo/Andrew Harnik

President Donald Trump takes a question from reporters on the South Lawn of the White House

This article will appear in the Spring 2018 issue of The American Prospect magazine. Subscribe here

It is now clear that the most frightening threats to ordinary politics in the United States are empty or easily contained. … The sky is not falling and no lights are flashing red.” So wrote two distinguished historians, Samuel Moyn and David Priestland, in an article in The New York Times last August. With surprising confidence only a half-year into the Trump administration, they warned not against dangers to democracy, but against “tyrannophobia,” the irrational fear of tyrants.

Fourteen months into Trump’s presidency, it’s even more surprising to see that same view still being expressed in serious quarters. A few of the contributors to Can It Happen Here?—a new collection of essays about the potential for authoritarianism in America, edited by Cass Sunstein of Harvard Law School—are also skeptical that Trump poses a danger to democracy.

One of the writers in the Sunstein collection, law professor Eric A. Posner, suggests tyrannophobia is a recurring panic in America. The not-to-worry camp is convinced that the nation’s institutions will hold extremist forces of any kind in check. Tyler Cowen, an economist, claims that extremists on the right “simply can’t control enough of the modern state to steer it in a fascist direction.” As he sees it, the courts, the Federal Reserve, and even the intelligence services and other elements of the Deep State stand as firm obstacles to authoritarian rule. Regardless of what Trump says about the media, for example, the not-to-worriers are confident that the courts will uphold the First Amendment, and the public will continue to get the benefit of aggressive reporting and criticism.

I don’t find this confidence reassuring, and not because I claim any special insight into the future. Something has already gone deeply wrong. When the greatest threats to democracy in the United States come from the man exercising the awesome powers of the presidency, our constitutional system has failed in a crucial sense. It has failed to protect America and the world from an erratic and impulsive demagogue who has no respect for democratic institutions, nor apparently much understanding of them.

The entire government, indeed, the whole direction of the country, now seems to revolve around one man and his whims, hatreds, and ignorance. When Trump named his early national security and economic advisers, some commentators assured us that the “adults” would prevent any calamity. But Trump can fire them with a tweet, as he did with former Secretary of State Rex Tillerson, and surround himself instead with people who share his instincts, feed his prejudices, and repeat his lies.

The Constitution provides no checks on the appointments to the national security apparatus and other operations within the White House—all enormously enlarged in the past century. Nor has Congress created any effective check on the president’s power to make war and conduct foreign relations. Every day, it seems, we wake up to a new round of threats and insults hurled by Trump against sundry targets, often including America’s allies as well as the “shithole” countries with darker peoples Trump disdains, while he offers aid and comfort to dictators around the world. (Trump’s own disposition might aptly be described as tyrannophilia.) The damage to democracy and human rights is not speculative—it is an ongoing disaster that is making the world a more dangerous place.

And if those dangers lead to an international confrontation (think of a Cuban missile crisis), or we suffer a major terrorist strike (think of another September 11), or the nation’s energy and communications infrastructure experiences a catastrophic failure (possibly resulting from Russian hacking), we will all depend for our safety and security on Donald Trump’s snap decisions. Nothing about his behavior inspires confidence about what he would do or, for that matter, how others would respond. A man who has lied so blatantly and so often will not be trusted by the public at the critical moments when trust is required.

The great worry about a crisis—the nightmare, Reichstag fire scenario—is that Trump would use a national emergency as a pretext for entrenching his own power, suspending civil liberties and elections. The U.S. Constitution, unlike some others, provides no clear guidance or limits on emergency powers, and as Judge Jed Rakoff argues in a recent article (“Don’t Count on the Courts”) in the New York Review of Books, the Supreme Court has a long history of according “near-total deference to the executive,” particularly when the government claims national security is at stake. In times of emergency, as in war, the law may well fall silent.

 

BUT EVEN SETTING ASIDE the possibility of a sudden seizure of power, the Constitution is not likely to provide adequate protection. It lacks the provisions that might stop “a would-be autocrat bent on the slow dismantling of democracy,” Tom Ginsburg and Aziz Huq, two constitutional law professors, write in their contribution to the Sunstein volume. The Founders expected the separation of powers would enable Congress to act as a check on the president, but they didn’t anticipate polarized parties. Congressional Republicans have been all in on Trump, and so Congress hasn’t been a check on the president, and it is unlikely to become one unless Democrats win control of at least one house.

Unlike other constitutional systems, Ginsburg and Huq point out, ours does not give minority parties in the legislature the right to demand information and make inquiries. Unlike other countries, we lack a well-insulated prosecutorial branch or ombudsman’s office to monitor corruption; the president can remove U.S. attorneys at his pleasure. (Indeed, he can remove the two officials at the top of the Justice Department, Jeff Sessions and Rod Rosenstein, and replace them with people who will do his bidding on Robert Mueller’s investigation.)

The independence of the civil service is only a matter of tradition, and if some agencies such as the FBI haven’t capitulated to Trump, it may just be a matter of time before he puts people in control who pledge their loyalty, as he asked of James Comey before firing him as FBI director. The U.S. Constitution, Ginsburg and Huq conclude, “is more vulnerable to backsliding than the regimes that failed in Poland, Hungary, Venezuela, Turkey, and elsewhere.”

Recent decades have seen a shift in patterns of democratic breakdown. Instead of generals seizing power in a coup, self-aggrandizing elected leaders have typically put an end to democracy in a gradual process that formally complies with law and avoids setting off “society’s alarm bells,” Steven Levitsky and Daniel Ziblatt write in their new book How Democracies Die. The most disturbing part of that book’s analysis is how closely Trump’s actions parallel the undermining of democracy elsewhere.

In a key step, would-be authoritarians seek control of democracy’s “referees”— the judiciary, law enforcement, and tax and regulatory authorities that are supposed to be “neutral arbiters”—so as not only to shield themselves from investigation but also to acquire the power to destroy their most effective opponents. Trump is well along in that effort and has not disguised his intentions about what he expects of loyal appointees. We cannot say we haven’t been warned.

Although we often attribute America’s success to the Constitution, Levitsky and Ziblatt point out that democracy has worked in this country only because of unwritten norms that have demanded forbearance in the use of power and political gatekeepers who kept authoritarians out of national office. In the 1930s and at other times, popular authoritarian figures might have run for president, but party leaders kept them from getting close to the White House. They no longer perform have the same gatekeeping powers, thanks to reforms to the nominating process adopted in the 1970s in the name of greater democracy.

To be sure, the responsibility for Trump’s election does lie in part with Republican party leaders and their billionaire backers, who could have waged a more effective resistance to a demagogue. But the party was well on its way to abandoning forbearance and other norms, a process that Trump has now pushed to the point where Republicans are nakedly using federal power (as they did in last year’s tax bill) to reward their friends and punish groups and even regions of the country they deem as their enemies.

Authoritarians don’t have to eliminate all political opposition or stop holding elections to consolidate power. Besides controlling the referees, they can rewrite the rules (for example, about voting) and gain enough of an advantage to tilt the game in their own favor. Today’s authoritarians also don’t need to shut down opposition media or subject them to prior restraint to ensure their dominance of communications. They often work together with cronies in business who benefit from the government’s largesse to bring about what scholars call “media capture,” the subordination of the media to oligarchic interests close to the regime.

Many newspapers and other publications have already been weakened financially as a result of diminished advertising and subscriptions; those financial pressures make them less capable of standing up to pressure. In addition, libel suits and hostile regulatory decisions can chill criticism, put independent media out of business, or drive their owners to sell out to companies that reliably support the government. (The suit bankrolled by Trump supporter Peter Thiel that shut down Gawker is an American example of the strategy.)

Fox News already serves Trump as a state propaganda network, but Republicans are looking for more. Under its Trump-appointed chair Ajit Pai, the Federal Communications Commission is now engaged in abetting media capture, as it favors the interests of the Trump-oriented network, Sinclair Broadcasting, which is seeking to merge with Tribune Media. As Jessica Rosenworcel, one of the minority Democratic FCC commissioners, recently told Michael Tomasky in the Daily Beast: “All of our media policy decisions have one thing in common: They are all custom built for the business plans of Sinclair Broadcasting.”

Like the media, democracy’s other institutional referees are also subject to capture. Those who are counting on the federal bureaucracy and the courts ought to recognize that the time may be short before they are colonized by Trump appointees. Four years of Trump, possibly eight years, will be enough to put far-right majorities in control of the Supreme Court and to burrow deep down into the Deep State.

Trump is also transforming the Republican Party itself, as moderates and even traditional conservatives like Senator Jeff Flake no longer seek re-election and the party attracts candidates and voters comfortable with Trump’s authoritarianism. The longer this process continues, the less will be left of both moderation and conservatism in the Republican Party. It might seem paradoxical, but it is true that only Trump’s failure and defeat can save the honor and the soul of the GOP.

Before we have a full-blown national crisis, we need a vivid sense of emergency about the danger American democracy now faces. What is so maddening about the complacent talk about the genius of the Constitution and irrational “tyrannophobia” is that what we need now is realism about the Constitution’s limits and all the political alarm we can muster. There is no counting on the courts, much less the Deep State, to save us. The fate of our democracy is going to depend above all on what Americans do to organize at every level of society and whether they show up at the polls and perhaps in the streets. This is democracy’s stress test, and we only have a limited amount of time to pass it.

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