This is the second in a series examining the issues in the 2024 presidential election. To see other articles in the series, click on the “2024 Elections” link under the heading “Politics” in the above menu.
Score
Harris 0 Trump -5
“Preserving democracy” has dominated the rhetoric of this year’s presidential campaign. Democrats rightly condemn the horrific January 6 insurrection and takeover of the Capitol while casually dismissing Republican’s concern about ballot security and tabulation. As important as the legitimacy of the election process is to the success of democracy, Theodore Roosevelt’s jarring call above reminds us that elections are hollow and deceptive if they do not result in policies that match the goals of the average American.
Sadly, the same alliance TR condemned then has risen from the grave to haunt us. Only Robert F Kennedy Jr. seemed to understand this, but he is now sidelined as a supporter of former President Trump. Thus, we find ourselves choosing between a candidate crowned in a back room deal who never received a single vote in the primaries and an unstable septuagenarian leader of a fringe cult. It looks more like a Russian or Chinese election than anything Thomas Jefferson would recognize.
Nevertheless, choose we must, but in a way that at least begins to challenge this hidden corruption. We can start by addressing three of its pillars – the avalanche of dark campaign money, the wily administrative state and the use of the courts as a weapon against democratic choice.
Campaign Finance and Voting Rights Reform
Our present campaign finance mess rose out of the U.S. Supreme Court decision in the Citizens United case which found one of Roosevelt’s initiatives to limit corporate influence in federal elections unconstitutional. The case raised important First Amendment issues, but the same result could have been achieved on much different grounds. Instead, it unleashed a flood of dark money from not only the wealthy and corporations, but potentially foreign governments as well. Many have called for a constitutional amendment to overrule the decision, but there is nowhere near the two-thirds majority in Congress necessary to send such an amendment to the states for ratification.
The Democrats introduced a bill early in the Biden Administration called the “For the People Act” to improve campaign finance disclosure and preserve voting rights. Unfortunately, it was a 800-page legislative grab-bag of good and bad ideas (see this post for a more detailed description of the good). It would have expanded and tightened disclosure requirements for corporate contributions (the “DISCLOSE Act”), strengthened the Foreign Agents Registration Act (“FARA”), and improved election integrity, among many other improvements. However, it met with solid opposition from Republicans and serious questions from moderate Democrats.
Sen. Joe Manchin then drafted a compromise that preserved the better parts and added several new ones (see this post for a summary). It preserved the DISCLOSE Act corporate requirements and the FARA amendments, allowed practical voter identification requirements, preserved early voting rights, and made Election Day a national holiday. The bill also would have addressed discriminatory voting practices and election integrity issues. However, Republicans continued to oppose the bill and it can be safely assumed that Trump does as well. President Biden supported it and so Vice President Harris undoubtedly does also.
Meanwhile, the flood of illegal and other immigrants into the country over the last three years has raised legitimate issues about the possibility of non-citizens voting in our elections. This is currently illegal, but there is no national procedure for verifying eligibility. Texas recently discovered 6,500 non-citizens on its voter registration rolls. The SAVE Act would establish documentation requirements for establishing citizenship, which could include not only the usual methods like a birth certificate, but also other more accessible methods. Democrats oppose it as unnecessary, but the Texas example justifies the concern.
Biden and Harris’s support of the For the People Act and the Manchin proposal earns them points, though their opposition to the SAVE Act means they earn only 1.5 on the nationalist scale. Meanwhile, Trump’s and the Republican’s position on both rates a minus 1.5.
Curbing the Administrative State
Theodore Roosevelt originally believed that corporate reform would be best accomplished through federal agency action. If he were alive today, TR would be horrified at the Frankenstein‘s monster that has developed from the growth of administrative agency power. From the Deferred Action for Childhood Arrivals program to the Clean Power Act, this new form of “invisible government” has arrogated to itself the right to restructure vast swaths of American life with only the input of a select few. Robert F. Kennedy Jr. highlighted how invisible alliances between business and agencies could endanger the health and welfare of American citizens, the exact opposite of TR’s vision.
The Supreme Court finally forced the issue with its recent opinion in Loper Bright vs. Raimondo, which ended the court’s deference to agency interpretations of the extent of their powers. Congress and the next administration now have an opportunity to thoroughly review agency powers, clarify and specify the necessary ones, and insure that only the democratically elected members of Congress may, by legislation, enact major policies decisions that affect their constituents’ lives.
Unfortunately, neither candidate has a history of reining in executive power. Instead, they both boast of the executive orders they will sign on their first day in office, not the legislation they will work with Congress to enact. The Biden- Harris administration has responded to the Loper Bright decision with attack rhetoric, which matches their longtime addiction to the use of sweeping agency powers. It earns them a negative 2 score on this issue.
Meanwhile, the Republican House passed a bill last year called the REIN Act, that would require Congressional approval of major rules. The alliance of RFKJr with the Trump campaign suggests the former President would be more supportive of such legislation. However, Trump’s rhetoric and his own past addiction to executive power suggests caution, and so he merits only a zero score on this issue.
Lawfare
Tort reform was one of my first political causes because, as an attorney, I was outraged that the manipulation and gaming of the system by a few well-connected trial lawyers was producing unjust results and enriching only themselves. Over the last few years, the same type of abuses have moved into the political realm. It acquired the name “lawfare”, which literally means warfare through criminal and civil litigation designed to suppress rights, not protect them.
Both Republicans and Democrats have engaged in lawfare or the threat of it. We now know major social media sites like Facebook and Twitter (now X) were bullied by the Biden Administration to suppress or remove speech discussing the pandemic response, the Hunter Biden business scandals and other controversial issues. The Democrats engaged in a concerted campaign to keep RFK, Jr. off the ballot and, in a bizarre twist, are suing to keep him from withdrawing and thus assisting Trump. The New York criminal and civil cases against Donald Trump were brought on shaky legal theories and by a district attorney who campaigned on prosecuting Trump. Meanwhile, the Georgia case is mired in scandals surrounding its prosecutors. There is no question that Trump brought much of this on himself, especially the classified documents case pending in Florida. Nevertheless, Harris and the Democrats encouraged this concerted legal campaign and thus rate a minus 1.5 for these tactics.
Unfortunately, Trump’s response has been to threaten the use of similar lawfare against his perceived enemies, bragging about being “dictator for a day” and proclaiming his own enemies list. We can hope that RFKJr’s commitment to free speech might blunt Trump’s rage, but there is no guarantee. These vulgar and incendiary threats only feed this un-American trend and also rates a minus 1.5 on this issue.
There is another form of law enforcement abuse that continues to affect local communities. Four years ago, the killings of African-Americans by the police sparked nationwide protests and led to changes in policing practices in most of our major cities. However, The Economist magazine recently pointed out that the rate of police killings actually has increased since then, mainly in rural areas and smaller cities (link requires free subscription) . There are several bills, including the George Floyd Justice in Policing Act, that would establish standards and practices to reduce these killings. The Biden Administration supported such legislation and also funded an increase in the number of police officers and innovative responses that reduce the likelihood of violence (see also my previous post on this issue). Republicans have generally opposed these reforms, though they have talked about federal law enforcement issues. The Biden-Harris approach merits a plus 2 on this issue while Trump and Republicans rate a minus 2.
Conclusion
For all the rhetoric about saving democracy, the two candidates actually score poorly on this critical and most basic value. Vice President Harris would open up campaign finance and voting, but then deprive those elected officials of any real authority by pursuing much of her policy through the shadow government of the administrative state. Meanwhile, Trump deserves his reputation in the media as a danger to democratic values. Yet, as I mentioned in the introduction, democracy is not just about using the right process, but also about producing the right policies. The remaining posts in this series will dive into their most important policy positions.
Next: Speaking Softly – Foreign Policy