At Caltech, I was asked to assist a group of distinguished physicists who were evaluating the technical feasibility of President Reagan’s Strategic Defense Initiative (SDI, aka “Star Wars”).  The group ultimately concluded that SDI would not work because a sophisticated missile offense could easily overwhelm a missile defense with decoys. There was no AI yet to separate the missiles from the chaff.  We are in a similar situation today with President Trump’s numerous attempts to refashion American democracy, i.e., he generates so much offense it is hard to defend effectively.

 In Democracy More or Less, I distinguish between first and second order democracy issues. The first concerns systemic features that distinguish democracy from autocracies, such as holding free and open elections, First Amendment speech and association rights, accepting office turnover after electoral defeat, and the like. At the time, I did not believe that such matters were still controversial in America. January 6th was a wakeup call for me.  Second order democratic design issues are disputes over the relative merits of various democracy design choices such as parliamentary or presidential, highly federalized or unitary, and proportional representation or single member simple plurality. President Trump has willy-nilly taken on both types of questions.

Some of Trump’s ideas such as annexing Canada or renaming the Gulf of Mexico are the political equivalent of the chaff that my physicist colleagues feared would confuse SDI.  Other proposals like reinstituting tariffs conflate a policy debate with a procedural question about whether tariff power resides with the Congress or the President. In such instances, policy, not procedure, usually matters more to the public and activists. We count on officials in the system to defend their powers. But when they don’t, as in the case of Republican members of Congress, a crucial assumption behind checks and balances breaks down. Tribalism and getting policy wins are pulling institutional turf protection into a political black hole.

Trump’s continuing efforts to undermine confidence in the election system and his willingness to use state power and economic leverage to silence critics and mute debates are alarming, not just because of their impacts, but also because they have exposed the shallowness of America’s commitment to defending basic democratic design and norms. Many citizens support democracy instrumentally not deontologically, i.e., they ask whether it benefits them personally, not whether it matters as principle. There is even a strong consequentialist thread in democratic theory that justifies it as the form of government most likely to produce policies that please the greatest number of people as opposed to those of a dictator or autocracy.

The current autocratic drift needs to be critically scrutinized and aggressively challenged. An example is the abuse of emergency powers. Democracies have long recognized that regular rules and processes must sometimes be waived in the case of wars or dire emergencies. Emergency provisions have proliferated at all levels of the U.S. government. But what is a true emergency? It was Covid and global warming under Biden, and it is immigration and urban crime for Trump. Perhaps, the legal community can help tighten the definition of emergency, but more likely, we need to ensure that all grants of emergency power are contingent and must be renewed.  Even if there will be a lot of rubber stamping, it is important to put legislators on the public record for emergency authorizations.

The what-kind-of-democracy question is also under Trump-ist siege.  The President, through his swarm of executive actions, his exploitation of a broadened immunity for official actions and his attack on the Pendleton Act is altering our government in a more executive dominant direction. As we have seen with the decline of Congressional regular order, the abolition of the judicial and high executive appointment filibuster, and the creative use of budget reconciliation rules, both parties have loosened the constraints that polarization with divided government has placed on policymaking. Divided government was still productive in the Nixon era, but no longer.  The name of the game now is to cram as much policy in as you can during the trifecta period and expect to do the rest by executive action when faced with divided government. We need to ask ourselves whether the Congressional rules that worked so well in the post-WWII period are the right ones for the current polarized era.

Maybe politics dictates the appropriate structure more than vice versa.  Consider the politics of the recent shutdown, for instance. Many U.S. Senators want to preserve the filibuster rules to retain some measure of power when their party is not in the majority. What started as simply a rule about closing off debate morphed into a tool for maintaining policy leverage for the minority party and now for checking increasingly polarized politics.  However, it is not very good at the latter.

When discussing the role of money in politics, it was common a few years ago to use a hydrology analogy to explain the inadequacy of the U.S. campaign finance system. Campaign money like water flows through regulatory openings. Policy checked by supermajority rules flows through executive actions and emergency provisions or over the simple majority thresholds of budget reconciliation.  Are we better off retaining the Senate supermajority rules if it leads presidents to curate more executive actions and declare more “emergencies”?  Count me as dubious.

Supermajority rules cloud public accountability, especially for distracted and procedurally uninformed voters.  My often unfairly maligned home state, California, did something quite intelligent in 2010. After numerous years of not passing budgets on time and dealing with minority party obstruction, we passed a ballot measure that eliminated the supermajority legislative vote for the annual budget and required that legislators go without pay if they could not pass the budget on time. Miraculously, it eliminated budget stalemates. This could be our 28th Amendment, one similar in spirit to the 27th amendment.  The national government could use a miracle like that.