Four Warning Shots for Our Democracy

Photo Credit: Jon Taggart / EPA

Today’s piece is bit different. Rather than focus on one story, we’ll zoom out a bit to take the temperature of our democracy. Our backdrop comprises four separate news stories that broke over the past week and flashed warning signs for the United States. 

First, the Tennessee legislature, governed by a Republican supermajority, expelled two young, Black male state representatives, Justin Jones and Justin Pearson, after they, along with Gloria Johnson, a white, female representative, joined students in a protest at the state Capitol in Nashville.

Second, a lengthy exposé on Justice Clarence Thomas revealed that, for decades, he and his extremist, activist wife, Ginni Thomas, have received lavish yet unreported gifts in the form of luxury trips and private aircraft travel from billionaire Harlan Crow.

Third, the GOP House Judiciary Committee issued a subpoena to a former prosecutor with the Manhattan District Attorney’s office, which is currently pursuing criminal charges against ex-president Trump, raising charges of federal interference.  

Fourth, a federal judge in Texas ordered the FDA to withdraw its approval of the abortion medication, mifepristone, which is used in more than 50 percent of abortions nationwide. A conflicting opinion from a federal court in Washington state was issued just one hour later.

Taken together, these developments understandably provoke a general sense of unease. They feel quite bad because, in truth, they are. 

But feeling anxious alone isn’t going to fix anything. By stepping back a bit, and with a little analysis, we can use these symptoms to diagnose a clearer understanding of what’s truly going on within our system. Armed with a more complete picture of our current dysfunction, we can develop defenses as a society, and in the future know better how to keep the threat of illiberalism and autocracy from spreading.

The perils of minority rule

In a healthy democracy, the will of the majority ought to control, subject to certain rights that remain inalienable, including guarantees of free speech, due process and equal rights under the law. But in an unhealthy democracy, two issues might begin to manifest, either alone or both at once.

First, a majority of voters might decide to use its power, either via referendum or through the legislature, to pass laws that discriminate against a minority of the voters. That could strip away the rights of certain parts of our society to participate fully. Second, a minority of voters (or a majority that is not quite a supermajority) might decide to cling to power by gaming the system. This is the crisis in democracy we saw unfurl in real time in Tennessee. 

As I wrote about earlier, the Republicans in Tennessee have deeply rigged the system in that state by drawing unfair district maps. Their extreme gerrymander “cracks” minority districts apart to dilute their numbers or “packs” minority voters into single districts that causes voters to waste their votes. The result is a GOP supermajority in the state legislature that can act with nearly unchecked power, something they chose to demonstrate to the whole nation last week.

Minority rule from a gamed system explains the conservative majority on the U.S. Supreme Court. Both George W. Bush and Donald Trump lost the popular election, but together they still appointed enough justices to comprise an extremist majority. These appointments were then confirmed by Senate Republicans who also represent a minority of the American public. 

Minority rule further explains how an extremist federal judge like Judge Kacsmaryk actually gets nominated and then confirmed. Plaintiffs specifically “forum shopped” Kacsmaryk to hear the case on mifepristone. He is now in position to issue an unprecedented ruling stripping approval from the drug and impacting the healthcare choices of millions of women across the nation. 

A crisis in federalism and the separation of powers

Ours is a federal system, meaning that there is both centralized, national power in Washington, D.C. and decentralized authority in the several states. There are many areas traditionally left to the states primarily to manage, including law enforcement, except where the latter involves interstate criminal activity.

When the balance of authority between the federal and the state governments goes out of whack, this historically can lead to crises, and even to civil war if the stakes are fundamental and existential, as they were over the question of slavery. The Texas case concerns our most recent and fundamental national identity crisis over abortion rights, which were protected at the federal level for 50 years before Roe v. Wade was overturned by Dobbs. The issue now splits the states into abortion-protecting and abortion-denying ones.

Our is also a system of checks and balances, meaning that when our system is operating correctly, the three co-equal branches of government restrain one another and stay within their lanes. Power is divided on purpose, and for good reason: An unchecked executive could create strongman or single-party rule; a radical legislature could pass unconstitutional laws that intrude upon court or the executive; an extremist judiciary could grant passes to the executive or the legislature to undermine democracy.

Efforts by Rep. Jim Jordan (R-OH) to interfere with the Manhattan District Attorney’s prosecution of ex-president Donald Trump is an example of how federalism, and in a broader sense the separation of powers, is endangered by extremism. In his quest to prove his loyalty to the former president, Rep. Jordan abused his federal authority by reaching into an ongoing, state-level criminal matter. Specifically, Jordan issued a subpoena to Mark Pomerantz, a former top prosecutor within Bragg’s office, requesting his testimony before the House Judiciary Committee that Jordan chairs. It was a move specifically designed to interfere with and further politicize an inherently political case.

It is also an example of how one part of government (here, the legislative branch, represented by Congress) is overstepping its bounds by attempting to hamstring a case being prosecuted by an executive civil servant sworn to enforce the laws of the state of New York. We are seeing this same power grab by a state legislature play out in Georgia, specifically a new bill passed by the GOP-controlled legislature that will permit the removal of district attorneys for cause. Critics of the law fear it could be deployed against District Attorney Fani Willis, who is leading a separate prosecution against Trump and his allies for election interference in that state.

These local prosecutors, who for the first time in history are seeking to hold a former president accountable for crimes committed in their jurisdictions, also raise challenging questions of federalism. Critics on the right argue that by opening this door, local prosecutors anywhere could come after former presidents with political vendettas, raising the stakes considerably for anyone seeking to hold or stay in the White House. 

But those favoring accountability, no matter what the criminal’s prior station, say the slippery slope argument is nonsense. If a local prosecutor, for example, discovered that Joe Biden had committed crimes within the state of Delaware, it is right and expected that Biden would be held to account for them too. It is only the upside-down case of Donald Trump, who has crimed his way to fortune and power for decades, that is exceptional and therefore should not guide our rules and norms.

Finally, the astonishing (yet sadly anticipated) ruling of the judge in the mifepristone case represents a level of judicial activism seldom before witnessed. Federal judges generally have the power to issue an injunction while a case is pending to stop further harm upon the parties and balance their interests. But here, Judge Kacsmaryk has enjoined the FDA’s entire approval of mifepristone, which has safely been in use for over two decades. There was no urgent need to upset the status quo, and doing so places the healthcare of millions of American women at risk.

Because of the conflicting opinion out of Washington state, issued an hour after Judge Kacsmyrak’s, the legal status of the FDA’s approval will likely wind up before the Supreme Court. Under normal circumstances, this should be a slam dunk. Courts are ill-equipped to second-guess the expertise of federal agencies like the FDA. Were Kacsmaryk’s reasoning adopted, it could lead to any medication being challenged along similar grounds, including medical contraception. But the conservatives on the High Court have demonstrated that they do not feel bound by norms or precedent, as the Dobbs decision starkly proved. In theory, a decision affirming Kacsmaryk’s ruling could strike at the heart of the executive branch’s power to regulate any matters via its agencies, and that could upend our entire system of delegated federal authority.

Erosion of core rights, freedoms and safeguards 

In a healthy, liberal democracy, the majority is not permitted to govern without limits. That could tip quickly into the “tyranny of the majority” that political thinkers have been warning of since democracy first took shape. Core rights and freedoms, and especially the long enshrined safeguards of our system such as equal protection under the law and due process, exist precisely to curb the excesses of majoritarian rule.

That is in part why we recoil instinctively from what took place in the Tennessee legislature. Three Democratic representatives joined a protest, attended by some one thousand students, over the inaction of the body over gun control in the wake of yet another school massacre, this time at a private Christian school in Nashville. While the actions of the “Tennessee Three” violated house norms, the move to expel them, over what amounted to an exercise in free speech, was unprecedented. No Tennessee representative had ever been expelled for anything but serious crimes and corruption. And the legislature, controlled by a GOP supermajority, had not acted against much more flagrant abuses and violations of the norms. The move to expel the representatives therefore appears to be a raw exercise of political retribution that violates due process.

We also recoil because, when the votes were tallied, only the young, Black representatives, Reps. Justin Jones and Justin Pearson, were expelled; the older white representative, Rep. Gloria Johnson, kept her seat. On top of the issues this raises under due process, the move by the House also appeared to be steeped in racism, with the law applied unequally based on the color of the representatives’ skin.

The stakes grew even higher for a time when it became clear that the county leadership of both the Memphis and Nashville areas, represented by Reps. Jones and Pearson, were prepared to vote to reinstate them immediately, as is their right under the law. No dice, said the GOP state House speaker, who initially refused to re-seat them before apparently backing off the threat. If this also feels terribly wrong, it is because our Constitution also guarantees to the people a Republican form of government, meaning that democratically elected leaders shall govern on their constituents’ behalves. No authority or body, not even a GOP supermajority, has the right to deprive the people of Nashville and Memphis the right to choose who they want to represent them in the state legislature.

Oligarchy and cronyism

Democracy and capitalism hold an uneasy relationship in our nation at times. One often seeks to check the excesses of the other; that is to say, a majority of voters logically might seek greater economic equality through things like progressive tax brackets and the imposition of hefty estate taxes on the wealthy. Rich and powerful individuals and groups might try to protect that wealth, often by buying off politicians to do their bidding instead of the public’s.

We are in a time, similar to the Gilded Age of the late 1800s, when wealth disparity in the U.S. is at an extreme. This is happening in tandem with huge sums of “dark money” from wealthy individuals and corporations flowing into our politics. This began after the pivotal Citizens United case, which opened the floodgates to outside corporate giving to PACs.

It is in this context that the bombshell report about Justice Clarence Thomas’s decades-long acceptance of lavish gifts and trips from a billionaire benefactor dropped. The outrage over the story underscored how the public has a right to know whether any of its civil servants, especially the most powerful ones who hold lifetime appointments, are secretly working not on our behalf, but rather to serve the interests of a few. We also have a right to an assumption of propriety within the system, meaning that the courts should not have the appearance of granting favor to one side due to outside influence or bias.

Thomas’s activity violates both of these norms, and his explanations only raise more questions. For starters, if Harlan Crow was simply one of their “dearest friends,” as Thomas has now argued, was it because Crow helped fund a PAC founded by Ginni Thomas in 2009 to the tune of $550,000, right as the Citizens United case was set to came down? Per Politico’s reporting in 2011:

[T]he Thomases came under particular scrutiny after POLITICO revealed that, while the Supreme Court was deliberating over the Citizens United case, Liberty Central had received a $550,000 anonymous contribution….

POLITICO has learned, for instance, that the initial $500,000 contribution came from Dallas real estate investor Harlan Crow, a major GOP donor who held an event for Liberty Central at his home a few months after the group launched. He also once gave Justice Thomas a $19,000 “Frederick Douglass Bible” as a gift and donated $150,000 to build a new wing named for Thomas on a Savannah, Ga., library that Clarence Thomas visited frequently in his youth.

For that matter, why on earth is Ginni Thomas, the wife of a Supreme Court justice, in any way involved with a political action committee with an agenda that often finds its way before the Court? And why did they only become “dearest friends” after Thomas became a justice of the Supreme Court? Nothing passes the smell test here.

The role of big PAC money also underlies why, in the state of Tennessee, the students had to show up to protest the lack of gun safety laws in the first place. The NRA, which serves the interests of gun manufacturers and ammunition companies, is a major contributor to Republican campaigns (as well as a few Democratic ones). The gun lobby is so powerful that basic and popular gun safety legislation, such as background check requirements, can’t get passed in many states. It’s why an assault weapons ban also is stalled in Congress.

PAC money also drives extremism in bill making and court challenges. The Alliance Defending Freedom, for example, has poured millions of dollars into anti-abortion and anti-LGBTQ legislation while funding cases directly impacting abortion access, such as the mifepristone challenge in Texas and even high profile, successful cases such as Dobbs and Hobby Lobby before the Supreme Court where Justice Clarence Thomas sits.

So what can we do about this?

It would be understandable to look at all this corruption, abuse of power and injustice and conclude by throwing up our hands. But identifying the ways the enemies of democracy would replace it with a Christo-nationalist autocracy gives us power which we can harness to help turn back these corrupting forces.

For starters, transparency and sunlight are the natural enemies of rot and corruption. Exposure of the activity—whether it’s Rep. Jordan’s improper interference with Alvin Bragg’s investigation, the Tennessee House’s illegal and racist expulsions, or Thomas’s lives of largesse on a billionaire’s dime—raises the political costs and stakes for the party under scrutiny as well as discourages copycat behavior. It garners the attention of lawmakers who can use public outrage to shape new legislation to prevent such behavior going forward. And a public that is hungry for more information about threats to our democracy drives media interest and encourages deeper and more courageous political reporting.

No one expects the average citizen to become a hero or a full time activist like the Parkland students. Learning about our systems and the dangers currently presented, sharing that knowledge with family and friends, and engaging in public discourse, whether online or in town halls or local school boards, already moves the needle by raising the profile of these issues. That urgency can help bring about action by our public servants, whose job it is to represent our political interests.

While big money is filling the coffers of anti-democratic extremists, we can also vote with our dollars to support candidates who will uphold democratic norms and the rule of law. There are specific civil rights organizations, such as the ACLU, NARAL, the NAACP, and the Human Rights Campaign (on whose board, I should disclose, I am honored to serve), which are on the frontlines every day but need our financial support. And of course, there are journalists and even citizen watchdogs whom you can uplift, amplify and support.

As we approach the 2024 national election, there is one overriding distinction that sets it apart from any other. It will be the first time that one of the two major parties in America has abandoned our shared democratic principles in favor of holding on to power at all cost. The MAGA movement’s goals and methods have been so extreme that they have even sidelined many of the GOP’s most traditional conservatives, from former Rep. Liz Cheney to former president George W. Bush. Its current leadership includes far-right radicals like Rep. James Comer (R-KY), who heads the new Subcommittee on the Weaponization of Federal Government, and Reps. Marjorie Taylor Greene (R-GA) and Matt Gaetz (R-FL), who sit on the House Oversight Committee. 

That brings us to the final way in which every U.S. adult citizen can make a difference: voting. While it may sound trite, it is also a mathematical fact that the fate of many state house majorities and supermajorities, not to mention our national Congress, are often determined by just a few seats, which in turn may be decided by just a few votes. In the 2022 midterms, Rep. Lauren Boebert (R-CO), one of the most radical and Christo-fascist members of Congress, held her seat by just over 500 votes across her entire district. Even though they fell jus shy of defeating her, progressive and moderate voters there demonstrated that they still have the power to change outcomes, even in a heavily Republican district.

In sum, our liberal democracy still has built-in safeguards against the active attacks we are now seeing on multiple fronts. But they are only effective if we rally to deploy them. Inaction and indifference are the true dangers to our cause, because no amount of alarm ringing will halt a march to autocracy or fascism if the populace does not heed the call to engage and to act. 

We are doing our own small part here, in this community. And I hope that through the lenses I provide, readers will see and identify the problems more clearly and be better equipped to explain them to others.

Together we can make a real difference.