Democracy is being stress-tested these days not only in the United States but also around the world. Illiberal governments routinely attack courts’ independence and the free press. In the United States, President Trump spews lies in an attempt to distort reality and thereby avoid accountability. He attempts to politicize prosecutions and use the power of his office to assail individual companies. His administration is rife with corruption and self-dealing. Efforts to curtail voting are now commonplace. The GOP-led Congress is captive to tribal loyalty, ignoring its constitutional role to check the executive branch.
Fortunately, the midterms provide a chance to rebalance our democracy, not only at the federal level but also in meaningful ways at the state level, where Democrats stand an excellent chance of picking up a batch of governorships and control of state legislatures. Here are three ways in which we might go about repairing our democracy.
First, Republicans, in an effort to hang on to their declining electoral advantage based on white voters, have tried every trick in the book to limit voting by those they suspect will favor Democrats. Hence, we have witnessed the phony Presidential Advisory Commission on Election Integrity (which utterly failed to provide any evidence of widespread voter fraud), widespread poll closings, voter poll purges and, in Georgia, efforts to slow-walk voting applications. Republicans act as though they cannot win races in which an electorate that’s representative of the country gets to vote. Put differently, they can win only where democracy is thwarted.
That must end. The good news is that with control of governorships and state legislatures, a bevy of pro-democracy changes can be implemented, including voting by mail, automatic voter registration, state legislation to enhance transparency in campaign financing, elimination of political gerrymandering in favor of neutral commissions, expansion of polling places and early voting, and weekend voting days (or making Election Day a state holiday).
Second, we must protect the Justice Department from politicization and partisan micromanagement. Justin Florence and Ben Berwick of Protect Democracy wrote in March:
The norms and long-standing practices protecting the Justice Department’s independence reflect constitutional principles that limit the situations in which the White House may interfere in law enforcement matters involving specific parties. In short, it is constitutionally appropriate for the President to set generally-applicable policies and priorities in order to enforce the laws of Congress. But with the exception of certain narrow types of circumstances, however, it will likely conflict with the Constitution for the White House to intervene in the Justice Department’s handling of an enforcement matter involving specific parties. And if the White House intervention is based on personal or corrupted interests, such interventions will always be unconstitutional.
In order to protect the Justice Department, wide-ranging hearings should begin to investigate the actions of the current White House and to review guidelines (formal or otherwise) imposed by past administrations. Congress could then pass appropriate legislation to insulate the Justice Department from improper partisan interference. (Florence and Berwick: “It could model such legislation on a bar on White House interference with specific IRS matters or take a more modest approach like one it has already considered regulating White House contacts with the Justice Department.”)
Third, the administration is attempting to enact an unprecedented set of limitations on public gatherings and demonstrations in Washington. The nonpartisan Niskanen Center this week submitted a comment letter signed onto by 35 individuals and eight groups from a wide ideological spectrum contesting the proposed rules put out by the National Park Service. In a news release, the Niskanen Center observed that “the proposed changes read like they were drafted by minions of Rodrigo Duterte, Recep Tayyip Erdoğan, or Vladimir Putin.” The letter blasts proposals to charge for demonstrations, bar demonstrations near the White House and vastly expand permitting requirements, arguing that “we cannot even take issue with the NPS’ reasoning behind this proposal … because there is not a single sentence in the entire regulatory preamble mentioning or discussing this in any way. This is highly unlikely to be mere oversight; rather, it is a most disturbing example of the NPS’ desire to curtail citizens’ First Amendment rights even without any notice or discussion.”
After this effort at stifling free speech is beaten back, Congress should take up legislation guaranteeing First Amendment rights in the District and providing a private right of action against officials who seek to curtail speech rights (as when a West Virginia journalist was arrested in 2017 for persistently questioning then-Health and Human Services Secretary Tom Price).
There are numerous actions (e.g. bolstering the Office of Government Ethics, strengthening Congress’s policymaking capacity, ending foreign emoluments, banning foreign government lobbying) that would shore up democracy. However, these three — expanding voting, securing the independence of the Justice Department and protecting free expression — provide a good starting point. After the midterms, newly elected officials should get cracking.