Fifteen Eighty Four

The United States is no longer a fully functioning democracy. This according to the Intelligence Unit of The Economist magazine. The Democracy Index 2016, released in January 2017, now lists the United States as a flawed democracy. The basis for the decline was not the most recent presidential election. Instead, the report argues that Donald Trump benefited from a lack of popular trust in American government, a lack that also led to the demotion.

Indeed, the ranking of the United States had been dropping for a number of years; the country was just barely included at the bottom of the list of fully functioning democracies in 2015. The magazine uses five measures, with the U.S. doing well in “electoral process and pluralism,” “political culture,” and “civil liberties.” The weak points are “functioning of government” and “political participation,” and it would seem reasonable to place the blame for these shortcomings on the Supreme Court of the United States.

There are two lines of cases that can be cited. The first, the refusal to find any constitutional violation in political gerrymandering, has led to a breakdown in deliberative democracy. With so many members of the United States House of Representatives and the state legislatures coming from districts that have been drawn so as to make their seats safely Republican or safely Democratic, there is no longer any incentive to compromise. A member who compromises, thereby moving to the center of the electorate, moves away from the center of those who vote in his or her party’s primary. In a safe district, it is the primary that matters, and winning the primary requires ideological purity. Compromise calls that purity into question. That affects the functioning of government. It can also impact political participation, when voters find themselves in safe districts in which their votes don’t really matter.

The other line is the Court’s repeated striking down of any attempts to limit the influence of money in politics. While the Court has accepted contribution limits to avoid actual, or the appearance of, quid pro quo corruption, it has been completely unwilling to limit expenditures by anyone, including corporations and unions, supporting the election or defeat of candidates. Somehow, the Court does not see the corruption this may cause. It may also impact the functioning of government, in the sense that government is not responsive to the people but instead to those who have the capacity to spend in favor of, or against, reelection of members of the legislature. It is also likely to affect political participation; people may choose to take no part in the process, if they believe that government is bought and paid for.

It is ironic that a line of decisions the Supreme Court saw as protecting democracy through an expansive understanding of expression instead contributed to a decline in democracy. This refusal to allow any reining in of the influence of money is also in stark contrast to the law in most to all of the countries that remain fully functioning democracies. Those countries limit spending, including spending by non-candidates in support of those seeking election, or they lessen the need for money. The lessening comes through bans on purchasing television advertising, often accompanied by the provision of free time in the media for candidates to reach the voters.

When I began writing Free Expression and Democracy: A Comparative Analysis, the intent was to examine how various free-speech issues are differently handled among fully functioning democracies. The lesson for the United States audience was to be that a country does not have to adopt the more absolutist free speech approach of the United States in order to be a democracy; equally democratic countries may have different views on any number of free expression issues. With the new downgrade of the status of the United States, the comparison now becomes between the way the United States looks at free expression and the treatment afforded by countries that are full democracies. It would seem that open ended campaign spending may be harmful to democracy. Might the same be true for the protection of hate speech that may minimize the voices of minorities? Does democracy require that we allow children access to media that may cause them harm? Looking to the practices of fully functioning democracies may provide some guidance on those and similar issues.