The Great Democracy

by Ganesh Sitaraman

  Reforms to the regulatory process can help ensure that regulations serve the public interest rather than rig the economy on behalf of powerful corporations. One of the great virtues of our rulemaking process is that it offers public notice and a period of comment in which anyone can give an opinion about a regulation. This allows agencies to get a wide variety of information in order to make a reasoned decision. But sometimes seemingly scientific studies are funded by interest groups who have designed the study to support their position. If an agency is going to rely on such outside studies, there should be independent peer review to prevent these conflicts of interest. In addition, many groups seek to lobby government after the notice-and-comment period by approaching the Office of Information and Regulatory Affairs (OIRA), which reviews regulations from its perch in the White House. This office should be barred from taking these meetings. Everyone should have to participate on a level playing field, with no special access or second bites at the apple for those who have wealth and connections.

  Finally, some commentators and officials have called for creating and empowering a single agency to address issues of government corruption, ethics, and transparency. Rohit Chopra, now a commissioner on the Federal Trade Commission, and Julie Morgan, a former Senate staffer, have proposed establishing a Public Integrity Protection Agency that would unify the work of the office of government ethics and the inspectors general of the various federal agencies. This single agency would be able to promulgate rules for government officials on ethics issues, investigate violations, and bring enforcement actions across the executive branch.16

  Judicial Reforms

  In this era of polarized politics, the Supreme Court has become a pawn in the battle between Republicans and Democrats. The Republicans blocked well-regarded Judge Merrick Garland from the court because they knew their 5–4 ideological majority was at risk. After Justice Kennedy announced his retirement, the toxic confirmation process of now-Justice Brett Kavanaugh not only solidified a reliable conservative majority on the court but also left many liberals feeling that two seats on the Supreme Court had been filled illegitimately.

  The court’s legitimacy and the legitimacy of the rule of law and our constitutional system more broadly depend on people knowing that the court makes decisions based on law, not on crass partisan politics. If half the country doesn’t see the court as an impartial arbiter of justice, the consequences are dire. Imagine the Supreme Court striking down signature accomplishments of a progressive president along party lines. The political branches of government might then ignore court decisions, creating a constitutional crisis. Indeed, many are already calling for the next Democratic president to pack the Supreme Court—by adding new justices—or for Congress to strip the court of its jurisdiction to hear certain cases. If we want to save what is good about the Supreme Court, we will need serious—even radical—reforms.

  One promising solution would be to appoint all federal court of appeals judges as associate justices of the Supreme Court. The Supreme Court would then hear cases in panels of nine justices selected at random from the full list of justices (that is, all the judges on the federal court of appeals). Once selected, each panel of justices would hear cases for only two weeks before another set of judges would replace them. Alongside this reform, the court would also need a supermajority to strike down a federal statute.

  This approach would have significant benefits. It would get rid of high-stakes Supreme Court appointments, taking the court out of the electoral and political realm. It would also significantly decrease the ideological partisanship of court decisions. No judge would be able to advance an ideological agenda over decades of service or develop a cult of personality among partisans. And it would be very difficult to be a judicial activist on any given case because the next court—arriving no more than two weeks later—might have a different composition and take a different tack. Judges would be restrained both by the need to preserve stability in the country and by the supermajority requirement preventing them from overturning federal statutes.

  Cases would also be chosen behind a veil of ignorance. While serving their two weeks, the justices would consider petitions for Supreme Court review. But with such short terms of service, the justices would know that another slate of justices, perhaps with different partisan dispositions, would hear the cases they select—leading to greater caution. Activist lawyers would also not be able to game the system, bringing legal arguments and cases tailored to the particular preferences of a justice or a few justices. In the run of cases, the court’s decisions would likely be far more deferential to the democratic process and far more tightly linked to precedent.

  Some commentators have proposed that Supreme Court justices serve an eighteen-year term instead of a lifetime term. Each president would therefore get two appointments, and appointments would be predictable, removing the pressure to appoint younger and younger justices. Although this is a well-intentioned reform effort, it is unlikely to solve the problem and instead will likely make it worse. First, it guarantees that the Supreme Court will be a campaign issue in every single presidential election because each president would get to shape the court with two nominees. During the appointment process, movement activists on both sides would still jockey to make sure only the purest ideologues would be appointed. And once on the bench, the justices themselves might actually become more political: a term-limited justice might see the court as the perfect jumping-off point for a presidential run, decide cases in hopes of retiring into a lucrative lobbying gig, or play to the public to secure a future as a talking head on Fox or MSNBC.

  To be sure, even under the lottery approach, there would still be politics related to the appointment of federal court of appeals judges. But there are many more such judges, and they would still serve lifetime appointments. Over time, both parties would get a variety of appointments—and there would inevitably be more ideological, methodological, and experiential diversity from this larger bench of judges. Combined with short terms of service on the Supreme Court, this diversity would make it harder for any willful judge to impose a particular agenda on the country.

  Our goal should be to make the court less political. A less political court is good for the political system, for the Supreme Court’s legitimacy, and for the rule of law. Despite the importance of judicial review within our constitutional system, the Supreme Court was never meant to be, as Justice Elena Kagan has written, “black-robed rulers overriding citizens’ choices.” Judges were meant to interpret the law, fairly and without an ideological agenda. Selecting them by lottery would restore that basic constitutional commitment.17

  * * *

  A democracy that is unrepresentative of the people is hardly a democracy. American democracy today is in crisis—but the crisis in our political democracy is not limited to the breakdown of constitutional norms. The crisis is much more fundamental: the combination of voting rules, money in campaigns, lobbying, the revolving door in and out of government, gerrymandering, and other features of our political system mean that democracy is simply not representative of the people. Nationalist oligarchy only promises to make politics less representative, not more—further rigging the rules to sustain a minority in power. For anyone interested in preserving democracy in America, the path forward must be to transform democracy in America. Every branch of government and the electoral process itself require significant, structural changes. If we welcome citizens into the political process and enhance representation, the result will be a new era of political democracy.

  9

  DEFENDING DEMOCRACY

  “Great nations need organizing principles,” former secretary of state Hillary Clinton once said of foreign policy. For thirty years after World War II, containment provided the organizing principle for American foreign policy. Then neoconservativism and liberal internationalism took over, organizing American foreign policy around American primacy and the promotion of democracy, human rights, and neoliberal economics. With the wars i
n Iraq and Afghanistan and the global financial crash, American foreign policy was adrift.

  In those last days of neoliberalism, Clinton noted that Obama’s phrase “‘Don’t Do Stupid Stuff’ was not an organizing principle.” Of course, it’s unclear that Clinton’s preferred slogans—“Peace, Progress, and Prosperity” and “Smart Power”—would qualify as organizing principles either. Indeed, “Smart Power,” meaning the use of all foreign policy tools, not just the military, was consistent with the technocratic ethos of the time. Complex problems in the world require smart foreign policy technocrats to address them in smart ways. Fair enough. But what problems? And what directions should the solutions take?1

  Today, the single greatest national security threat to most democracies is not military invasion from abroad but erosion from within. Democracies might cease to exist, but in most cases, there won’t be a revolution, a new Constitution, or even the declaration of a new regime. The trappings of democracy will remain while the reality disappears, replaced instead by oligarchy.

  This threat, the threat to democracy itself, should be the highest national security priority, and preserving and protecting democracy at home from becoming a nationalist oligarchy—and from nationalist oligarchies abroad—should become the new organizing principle for American foreign and national security policy. This principle has widespread consequences. First, it means breaking down the silos between foreign policy and domestic policy because domestic resilience and strength—economic, political, and social—are foundational for national security. More specifically, it requires protecting democratic institutions from political attacks and cyberattacks. Second, national oligarchies can weaponize economic interdependence to gain leverage and power. Democracies must therefore develop economic resilience and capabilities, selectively disentangle from these countries, and forge countervailing alliances. Finally, preserving and protecting democracy at home means taking a more restrained approach to international interventions abroad.

  Let’s start with defending democracy at home. National security begins with achieving political, economic, and united democracy. For too long, national security and foreign policy have been disconnected from explicitly domestic goals like building an equitable economy and fostering social solidarity. But policies in these areas, whether antitrust or public options, campaign finance or judicial reform, are all national security policies. Democracy at home cannot be secure without attending to what makes democracy possible. Achieving the political democracy, economic democracy, and united democracy agendas described earlier in the book is therefore as important as any other homeland security or foreign policy endeavor and, indeed, is the foundation for them.

  More specifically, the structures and institutions of American democracy have already been the subject of ongoing attacks. The Russian government targeted dozens of state election systems in the 2016 elections, and they even succeeded in infiltrating some voter registration databases. During that same time, hackers breaking into voter files in Illinois attempted to change voter information, potentially compromising up to ninety thousand voters.2

  Part of the problem is that the election system is extremely vulnerable. Voting machines are electronic, and many of them allow for remote access. Although this access is intended for troubleshooting, it can also serve as a back door for hackers. This is particularly problematic because twelve states use machines that do not produce a paper ballot, and thirty-two states allow electronic ballots for absentee voters or voters who are abroad. Many machines are so old that vendors no longer make security updates for them. When results are transmitted over cellular phone lines or modems, they can be intercepted through the use of stingray machines that mimic cell towers. And because election administration is decentralized through states and local governments, hackers and foreign governments can focus on the weakest links. Given that election officials in ten states don’t receive any cybersecurity training, American democracy has a very soft and vulnerable underbelly.3

  Defending political democracy will require national reforms to election administration. As cryptographer Bruce Schneier has observed, “The U.S. against Russia is a fair fight. Fifty separate states against Russia—that’s not a fair fight.” The Constitution allows the federal government to take action, giving Congress the power to pass laws on the timing and manner of elections. Congress must do so. At a minimum, Congress should mandate cybersecurity training for election officials and cybersecurity standards for voting machines; all machines should have to produce paper ballots; and officials should conduct randomized postelection audits. These are not simply a matter of good government but central to American national security.4

  Protecting economic democracy and fostering a united democracy also requires defending critical infrastructure—energy facilities, banking and economic infrastructure, water and utilities systems, and air traffic and transportation infrastructure. In early 2018, for example, the Trump administration’s Department of Homeland Security and the FBI jointly accused the Russian government of targeting the US energy grid and, in particular, hacking into nuclear facilities. The threat to critical infrastructure is not simply one of inconvenience from a minor power outage. One of the greatest transformations in the history of warfare was the shift from warfare between armies to total war. Total war involves the full mobilization of a society’s military, economic, and social power to wage war, and its central feature is that more than just military targets became part of military campaigns. For example, General Sherman’s March to Sea during the American Civil War and aerial bombing campaigns during World War II were designed as much to break the will, spirit, and solidarity of the enemy as they were for narrowly drawn military purposes. Now, as every aspect of life becomes linked to technology, as robotics and the internet of things expand in scope and influence, total war has a new set of tactics. Shutting down electric grids or spreading propaganda and disinformation can spark social crises and unrest, breaking the unity required for democracy—and it can all be done from afar. As Senator Kamala Harris has said, “We have to be prepared for wars without blood.”5

  Addressing these threats will require more than just regulating tech companies, improving security, and educating people about the misuse of social media. Right now, most cyberoperations are run through each of the different branches of the military—army, navy, marines, air force—or are run through piecemeal efforts by the private sector and local and state governments. Each trains its own cyberwarriors, drawn from its ranks. This approach suffers from serious problems. First, cyber is its own domain of conflict, with its own threats, strategies, language, training, and operations. Second, because the United States has a law preventing the military from operating within the country, cybersecurity operations should not solely operate through the military. Third, piecemeal efforts mean that we have a patchwork of cyberdefense systems that is uneven and leaves significant vulnerabilities.

  In a world defined by technology, the defense of democracy requires a dedicated Cyber Guard, akin to the National Guard, with the sole purpose of protecting the country from technological attacks. Creating a single, independent Cyber Guard would address the problems with fragmentation across the different military branches and assist the private sector. It would also help with recruiting talent. The kid who watches an advertisement for the army or the marines and wants to join up to serve in the field is probably not the same as the one who wants to sit at a computer and write lines of code. At the same time, the person who is only interested in cyber issues might not want to join one of the other services for fear of ending up an infantryman or a submariner. A Cyber Guard would be able to recruit from a population exclusively interested in cyber issues.6

  Cybersecurity and election security might not seem like classic foreign policy or national security topics. Neither do trade and international economic policies. But economic policy is central to foreign policy because economic interdependence can be weaponized for the powerful to gain leverage over weaker cou
ntries. When it comes to engagement with nationalist oligarchies, this poses a serious threat—and requires fundamentally reforming how foreign policy and economic thinkers have approached international economics over the neoliberal era.7

  For decades, American foreign policy makers believed that including and engaging foreign countries—even autocracies—in international institutions would inevitably lead to them liberalizing their politics and economies. The Washington Consensus, shock therapy, and democratization efforts of the 1990s and 2000s were thus partly predicated on the view that reforms would lead to stable liberal democracy. In perhaps no area was this approach truer than policy toward China. As Kurt Campbell and Ely Ratner have said looking back at more than forty years of US-Asia policy, “The assumption that deepening commercial, diplomatic, and cultural ties would transform China’s internal development and external behavior has been a bedrock of U.S. strategy.”8

  This strategy, however, suffered from a number of problems. First, it turned out to be wrong. All good things—economic openness, political democracy, and human rights—do not go together, and international institutions do not necessarily change the character of a national government. “Diplomatic and commercial engagement have not brought political and economic openness,” Campbell and Ratner write in their important reckoning with Asia policy. “And the liberal international order has failed to lure or bind China as powerfully as expected.”9