Democracy in the Balance
There's a Lot Going On
The pace of our political lives seems to be accelerating. Each news cycle brings a new challenge or perspective. It takes careful thinking to make sense of it all and gauge our political moment. I’m highlighting just a few of these critical events and then attempt to figure out where we go from here.
The Indictment of Donald Trump.
As I’m sure you know, last Thursday the Manhattan Grand Jury announced an indictment of the former president surrounding issues with the Stormy Daniels hush money payments. The indictment could not be released until Tuesday’s arraignment due to the delay in Secret Service preparations for Trump’s trip to New York.1 That lag of four days allowed many to trot out their standard talking points: Raising the indictment to a felony from a misdemeanor relied on a “novel legal theory”; Non-disclosure agreements (hush money) are commonplace; the DA was politically motivated and funded by George Soros; “If they could do this to Trump, they could do it to anybody”.
In reality, Bragg was not supported by Soros. Soros’ foundation gave money to criminal justice reform groups who backed Bragg’s election in advertising.2 As Bragg explained in his press conference, the up-charging of false records offenses is standard practice. They can’t repeat the Trump situation for any citizen unless, of course, that citizen had left behind a trove of fraudulent financial claims. And Bragg didn’t make the indictment decision, a Grand Jury of New Yorkers did.
The charging statement makes clear that the indictment WASN’T about hush payments to Stormy Daniels. Theoretically, Trump could have paid her money directly in exchange for her silence. But he didn’t. Trump, Cohen, AMI, and the Trump Organizatiom all allegedly falsified records to hide the fact that Cohen was being reimbursed (plus an extra $240K) for what he paid to Daniels. Listing those records as regular legal expenses was potential fraud. Furthermore, the indictment suggests that this coordination3 was solely to prevent the public release of information that would hurt the 2016 presidential campaign.4
Of course, the facts I’ve just laid out do not change the talking points politicians and pundits had already settled on. They will continue to repeat them even though they are factually incorrect.
If the accountability for a potential White Collar Crime5 is positive for our democratic norms, other pieces of news are not.
The Tennessee Legislature
It’s been nine days since the tragic shooting at Covenant Presbyterian School that killed three adults, three children, and the shooter. Surprisingly, we still don’t have details on the motive beyond the fact that the shooter was emotionally disturbed and had gone to the school somewhere in her past. Law enforcement is still studying the manifesto left behind and haven’t released any details.
While the shooting promoted the normal statements of concern (and prayers), it had a different reaction among students in Nashville and beyond. Media reports showed gigantic crowds marching to the capitol to demand action. There were remarkable pictures of ranks of elementary students6 lining the hallways where legislators enter, requiring them to literally run a gauntlet. Three Democratic legislators spoke to the gathered students and encouraged them to flood the galleries. Some students tried to push their way onto the floor and were detained by police. The three legislators took to the well and spoke in favor of the students.
As a result of their actions, legislative leaders removed the three from their committees. Action scheduled for today will determine whether they are expelled from the legislature.
It’s one thing for the legislature to control legislative agendas due to a supermajority.7 That control has led Tennessee to pass bans on drag performances and medical support for transgender youth (currently blocked by the courts). But it's another thing entirely to squelch the minority voice within the legislative body. This is a textbook example of Madison's "tyranny of the majority". Sure, the Tennessee three (as they're now known) disrupted regular proceedings of the TN House and perhaps earned a censure vote (norms are still important) but the reaction of the majority is unconscionable.
Elections in Wisconsin and Chicago
The Wisconsin Supreme Court race was identified early on as a race with huge consequences. The contest had progressive judge Janet Protasiewicz against ultra-conservative Dan Kelley. The outcome determined the balance of the Wisconsin Supreme Court and had huge implications for abortion policy, gerrymandering, and elections.
It looked likely that Protasiewicz would win, but her margin was shocking. She won by over 10% of the vote. I heard today on a podcast that if you eliminated the vote of liberal Dane County (home of Madison), she still would have won handily.
There is a dark cloud on the horizon for this victory. Even before the election, Republican legislators in Wisconsin were promising to impeach Protasiewicz for some imagined offense. And Dan Kelley gave one of the most incendiary concession speeches you’ve ever heard, saying that he “didn’t have an honorable opponent to whom he could concede”.
Meanwhile, Brandon Johnson beat Paul Vallas for mayor of the city of Chicago. Johnson is a former public school teacher and community activist. He has called for addressing crime in ways other than simply increasing officers on the street. Vallas8, a charter school leader and businessman had run on crime and had the backing of the Chicago Police Union.
Johnson lives on the troubled west-side of Chicago. E.J. Dionne wrote about this in the Washington Post this morning.
But he clearly understands that curbing lawlessness will be a central test of his time in office. Speaking Wednesday on “Morning Joe,” Johnson, who is Black and lives on the city’s troubled West Side, noted that he would “wake up every single morning in the most violent neighborhood in the city of Chicago.” His task is to change that, on his own blocks and across the city.
Republican Legislatures Keep Doing Their Thing
And yet hardly a day goes by without another far-right step taken by Republican majorities or super-majorities. Bills banning transgender care are passing across the country with Iowa and Indiana being the most recent. Kansas just voted to override the governor’s veto of a bill requiring a genital check for K-12 children participating in sports. Florida passed a constitutional carry law allowing anyone to carry a firearm without permit. They are on the verge of adopting a six week abortion ban. Idaho has criminalized the provision of abortion pills or assisting a minor to travel across state lines to get an abortion. Book banning bills continue apace.
Where This Leaves Us
We live in a federalist system of government. Many decisions are left to the states to figure out. At times, this has led to interesting innovations (e.g., ranked choice voting in Alaska) or those that meet the needs of particular states (e.g., California emissions standards). That’s as it should be.
But when the states are trying to enact their policies without consideration of varying views (or expelling those who hold such views), the experiments of the states break down. They aren’t trying out a policy innovation to see how it might scale up. They are doing whatever they want because they have the votes, at least for now.
Small-d democratic norms require the diversity of voices to have a way into legislative decisions. Attempts to squelch those voices lead to bad and dangerous policy.
Without those voices, we must place our hopes in two other sources: the courts and public. For the former, interested parties can attempt to gain standing to block onerous legislation from taking effect but that doesn’t get better legislation in its place. For the latter, we can take great solace from those students in Nashville and Colorado who have protested for gun safety. And we can be happy with the kind of political organizing that took place in Wisconsin.
But it’s a long road ahead that will be characterized by twists and turns, potholes, dead-ends, and speed traps.
Which we now know he didn’t have to take as they offered to do the arraignment over Zoom.
Here’s a quick note about 501C4 organizations. The title is a reference to a section of the tax code. It allows certain groups to act as “advocacy organizations” supporting causes they believe in as long as they aren’t (in theory) directly supporting candidates. This is completely legal. But the critique is invariably one-sided: you never hear someone referring to a politician as a Family Research Council backed zealot.
I use that word guardedly. It’s not a conspiracy (yet). But I wouldn’t be surprised to see a superseding indictment adding a conspiracy charge before this comes to trial.
The argument that they might not go through with the payments if he won the election seems really important.
Here’s another shout-out to Jennifer Taub’s excellent Big Dirty Money.
I saw a number of conservative tweets referring to these elementary school children as “gun control extremists”
A state legislator in North Carolina just switched from Democrat to Republican, giving the latter a supermajority that can override the governor’s vetos.
I should note here that we have to be careful with partisan labels in cities with one-party dominance. While I think Vallas would have been a moderate Republican running in another city, being a Republican is tough in Chicago (or New York). When you look at the policy positions and rhetoric of Vallas or Eric Adams of New York or Kathy Hochul of New York State, they sound like National Review authorized positions.