The soft guardrails of democracy are no longer strong enough to stop our slow crawl toward autocracy.
When I started writing this early in the week, it was my intent to describe how Trump’s tenure as president would inevitably have consequences on our system of government, even long after his departure from the White House. What I didn’t anticipate was that we’d see those consequences much sooner and so viscerally.
It’s tempting to succumb to the eloquent speeches given by members of Congress just hours after a failed insurrection overran the seat of our federal government — that violence fails in the face of order, and that those who appease hostile forces will be met with unified opposition. It’s the duty of our representatives to instill hope, and they shouldn’t be faulted for that. But we shouldn’t be so naive as to believe this marks the end of a divisive, vitriolic era of politics. Those who stormed the Capitol may indeed be a minority, but it’s a minority that’s grown steadily over the past decade, fueled and fed by a toxic media environment and shameless politicians motivated by their own ambitions. Before Trump, before social media, they found their genesis in the early days of Tea Party protests, where the prevailing conspiracy theory of the day was that the nation’s first Black president was not a citizen, and they proudly touted violently racist signage at their rallies calling for his removal.
Aptly put by Tanzina Vega this week, what happened at the Capitol “is not unbelievable”, but “the logical culmination of events”. Our current legal framework strengthens polarization, shields demagogues, and allows legal corruption to fester while more people across the political spectrum lose faith in the idea that their government truly works for them. Meanwhile, Trump’s tenure has laid bare the inherent weakness of relying on tradition to uphold decency in government: it only works when the guilty offender has a capacity for shame. Those willing to bend precedent for personal gain, including those in Congress who parrot his baseless lies in order to curry favor from his base, are free to do until it breaks. The plethora of his offenses are well documented, but astonishingly few are definitively illegal, instead reducing us to circular arguments of whether they’re ethical. These blurred lines, and the so-called “soft guardrails” of democracy, allow our current culture of corruption, and the accompanying escalation of political violence, to endure.
Consider for a moment that just in 2018, South Korean President Park Geun-hye was impeached and sentenced to 24 years in prison on corruption charges. In 2016, Brazilian President Dilma Rousseff was removed from power for far less egregious misconduct. And Israeli Prime Minister Benjamin Netanyahu, under indictment for a series of corruption scandals, will soon face trial after the country’s parliament refused to grant him immunity from prosecution. While those nations take corruption seriously as a punishable offense, we’ve watched helplessly for four years while the presidency and the Trump Organization have been melded together to enrich one family on one hand while being used as a vehicle to influence foreign policy on the other. And since 2017, the United States has fallen far enough down the Democracy Index to be classified a “flawed democracy”, ranking just slightly higher than Malta. Our self-congratulatory platitudes of being the world’s “greatest democracy” ring hollow upon any reasonable examination.
What’s dangerous isn’t the prospect of watching a flagrantly corrupt president one day be removed from office for abuses of power, but failing to swallow our pride and choosing to believe that tradition will preserve our democratic republic. It’s the latter that will much sooner corrode public trust, the foundation of any legitimate government. If legal ambiguities protect those willing to test the limits of democratic integrity, it’s well past time to reinforce those soft guardrails with ironclad, bright-line standards within the Constitution that leave no room for creative interpretation.
What we needed four years ago still remains the case:
- Allowing Congress to regulate campaign financing and spending to remove the distorting influence of big money in politics, and replacing it with a system that democratizes the flow of money into campaigns.
- Prohibiting lobbyist involvement in campaigns, including fundraising for or donating to candidates, to sever the ties between Wall Street and Congress. To close the revolving door, those who have been a lobbyist in the prior 10 years should be prohibited from working in the White House, and elected officials should have a lifetime ban from becoming a lobbyist themselves.
- Ending gerrymandering by requiring independent redistricting in every state, with no input or involvement from state elected officials. A decade of districts drawn by Tea Party candidates in 2011 has shown us the extent of damage that can be done when a representative’s most competitive challenger isn’t from another party, but a primary challenger from the fringe.
- Replacing our antiquated method of voting with ranked choice voting, which both incentivizes coalition-building between candidates and lowers the barrier for a multi-party system to thrive. Whether parties of democratic socialists or far-right autocrats emerge, opening an escape valve from the two-party system alleviates the near impossibility of expecting regional differences to emerge into a coherent national message, while also allowing the most appalling messages to be more easily marginalized.
- Abolishing a vestige of slavery, the Electoral College, and allowing the people to directly elect the President. Celebrating Congress’s eventual certification of Biden’s Electoral College victory is of little consolation when considering that a handful of Senators, and a majority of the House Republican Congress, were able to weaponize a traditionally procedural ceremony into a platform to spread the President’s conspiracy theories.
- And finally, acknowledging our dual system of justice that targets and disenfranchises Black citizens by enshrining an explicit and inalienable right to vote for all citizens, including those incarcerated, without fines, fees, or other barriers, and reinforced with universal voter registration. Nor should the right to run for office or serve on a jury be restricted based on prior criminal conviction, and the prison slavery clause in the 13th Amendment should be repealed.
Four years out from “Drain the Swamp”, the Trump Administration has become a case study of the myriad of ways existing corruption can mutate into something horrifyingly worse. Preventing his model of governance from being replicated in the future requires basic standards than any elected official or Cabinet member should be obliged to follow:
- Require disclosure of at least ten years of tax returns and detailed, audited financial interest statements for all federal candidates seeking to appear on the ballot.
- Require full, verified divestment from assets for elected officials and Cabinet members. In light of those senators who seemingly profited from the COVID-19 crisis, it’s clear those assets should include stock ownership, while instead allowing conflict-free investments like mutual accounts.
- Clarify the Emoluments Clause to include any profit, gain, or advantage arising from commercial transactions — and explicitly prohibiting executive branch officials from profiting from their position or using government properties like the White House for campaign activities.
- Prohibit those running for elected office, or those assisting their campaign in any capacity, from soliciting or accepting any profit, gain, or advantage from foreign actors.
- Prohibit the use of the pardon power on one’s self, of family, of business or political associates, of former executive branch officials, of anyone convicted of civil rights violations, or of “preemptive” pardoning for those not yet convicted of a crime.
- Establish the Justice Department as independent, and prohibit the White House from attempting to influence or interfere with its legal proceedings.
- Enact an anti-nepotism provision that prohibits family members of executive branch officials from working for or aiding in their duties, with the exception of the First and Second Spouse.
- Protect whistleblowers in the executive branch from dismissal or retaliation by the President for raising good faith concerns.
- Require members of the executive branch to comply with congressional subpoenas.
- Establish that the President is not immune from being indicted for violating federal law.
- Close the door on future election crises by prohibiting a sitting president from refuting or spreading misinformation about certified election results.
Whether by statute or amendment, debating the realistic probability of passing these reforms is of little value. Our moment is marked by political violence, conspiracy theories, and a slow crawl toward outright opposition to democratic rule. These are the flashing red warning signs of a system in peril and demand our immediate action. These changes won’t fix everything; the same media that gave a platform to Trump’s message for so long is in dire need of reform, and our education system fails to foster civic deliberation or critical debate for future voters, allowing misinformation to thrive. The Senate is likely to live on as an anti-democratic vessel of obstruction, and wealth inequality cannot be overlooked as a major contributing factor to our polarization. But believing a new administration can single handedly fix the rot beneath our institutions will wind up being a Pyrrhic victory that leaves us more embittered and cynical than ever before. The Founders understood that the Constitution was a flawed document and gave future generations a process to amend it for a reason. Those who claim to care about that document, regardless of political affiliation, are obliged to meet the moment and recognize how close we came this week to suffering an irreversible stain on the citadel of its legitimacy.