Archive for the ‘Democracy’ Category

Democracy is failing to protect the environment for future generations. So the courts are stepping in – Prospect Magazine

Exterior of the German Constitutional Court. Photo: DPA Picture Alliance / Alamy Stock Photo

Recent months have seen a series of ground-breaking judicial decisions on climate change and, more broadly, environmental protection. In one of the most celebrated, the German Federal Constitutional Court held that the German Basic Law (constitution) limits the scope for political decision-making with regard to protection of the environment. According to the Court, environmental protection is elevated to a matter of constitutional significance for two reasons. First, a democratic political process is organised on more short-term lines based on election cycles, which places it at a structural risk of being less responsive to tackling ecological issues that need to be pursued over the long term. Second, because future generationswho it described as those who will be most affectedhave no voice in shaping the current political agenda.

In doing so, the Court placed the issue of democratic unenfranchisementthe absence of entitlement to exercise the right to voteand the lack of political voice of future generations at the heart of its reasoning.

The inability of todays children and as yet unborn future generations to input into decision-making around the environmentand hence the need for judicial intervention to secure their rights and interests in that contexthas been a consistent theme in the growing body of global child- and youth-focused climate change advocacy and litigation. This is evidenced by the claims submitted to courts by child and youth litigants and their representatives, as well as by campaigns and advocacy beyond the courtroom.

From Europe to Asia to Africa to Oceania, children and young people have stressed both their own exclusion and that of as yet unborn future generations from political decision-making that has crucial implications for the enjoyment of rights both now and in the future. This reflects a growing recognition that, in the words of the founding claim that led to a ground-breaking Colombian Supreme Court of Justice decision ordering the protection of the Amazon rainforest from deforestation: intergenerational equity does not only occur between the present generation and a future generation of people who do not yet exist, but also occurs between those who make decisions today and the generation of we younger people who will face the effects of the decisions that are made in the present.

The willingness of the German Constitutional Court to engage with democratic exclusion as a basis for judicially enforced constitutional constraint on the political process is not shared by all courts hearing climate changes cases. A Norwegian Supreme Court decision in December 2020 rejected efforts to prevent the government from issuing exploratory Arctic drilling permits. In doing so, the court stressed that since decisions in matters of fundamental environmental issues often involve political considerations and broader priorities, that was an argument in favour of such decisions being made by elected bodies, and not by the courts.

There is a strong argument that children and future generations inability to exercise either direct or indirect influence on the elected branches of government should serve as the basis of an enhanced role for the courts in protecting their rights in climate change litigation. This is consistent with the arguments made by American scholar John Hart Ely and others in favour of a representation-reinforcing role for judicial review. Where the primacy accorded to majoritarian democratic decision-making (and hence a more deferential or limited role for judicial decision-making) is based on an understanding that those affected by such decisions will be able to participate in or otherwise influence them, then that primacy will necessarily be affected where such participation or influence is lacking.

It has historically been assumed that the rights of children will be protected within democracy through political representation by other enfranchised groupswhether on the basis of shared interests, sympathy or empathy. While this assumption is questionable at the best of times (and is even more questionable when extended to as yet unborn future generations), it is particularly dubious where those who are presumed to ensure this virtual representation of children place a very different priority on climate change and environmental protection than children themselves do. In the UK, for instance, YouGov survey results revealed that while the environment was the second most important issue for voters in the 2019 election between the ages of 18-24, it came fifth and sixth for voters aged 50-64 and 65+, respectively. Given that in the UK, older voters are more likely to turn out to vote than younger voters, and given the growing relative weight of older people in the voting-age population, the scope for effective representation of childrens views by older voters seems limited.

The courts thus have a crucial role to play in ensuring that children and future generations exclusion from democratic decision-making does not result in the violation of their rightswhether now or in the future. While this is not a role that is limited to the issue of environmental protection, that context is proving a crucial testing ground for establishing the extent to which courts will enforce those groups rights in the face of opposition on the part of elected branches of government. And, ironically, even where such cases do not prove successful, they frequently serve to force the issue of environmental protection onto the agenda of democratic decision-makers in a way that might well not happen otherwise.

Hardly a week goes by without a significant case on environmental protection being either launched or decided, with cases involving the rights of children or future generations currently before courts in places as diverse as South Korea, Peru and South Africa. Different national courts of course operate within different constitutional and legal schema and traditions. This will necessarily affect their approach to the cases that come before them. However, a feature of all of the domestic systems in which these cases are decided is the unenfranchisement and ineffective representation of children and future generations in democratic decision-making.

Children and young peoples environment-related advocacy has demonstrated to the world their capacity for political agency and engagement. It remains to be seen, however, to what extent their ongoing lack of political power will advance judicial willingness to intervene to secure their rights in a time of environmental crisis.

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Democracy is failing to protect the environment for future generations. So the courts are stepping in - Prospect Magazine

Assault on critical race theory is an attack on democracy itself – cleveland.com

Dangerous legislation banning the teaching of critical race theory in Ohio schools advances in the state legislature. House Bills 322 and 327 are ill-conceived and dishonest displays of right-wing ideology. Imitating other states, they closely follow sample legislation from organized national campaigns by Heritage Action for America, 1776 Project, and Citizens for Renewing America.

The bills authors and their sources (handbooks and toolkits) are ignorant of critical race theory and American history. They create straw figures to criticize with biased ideology. For example, Christopher F. Rufo, a leading propagandist, falsely asserts that reputable scholars are Marxists calling for the overthrow of capitalism. Claiming to defend children, they promote ignorance. They fear that children will gain an accurate, shared knowledge of the complicated American experience. They are anti-democratic and un-American.

The partisan effort to ban teaching about race is an unconstitutional violation of the First Amendment free-speech rights of teachers and students. It is also unenforceable. There arent K-12 courses called critical race theory. They exist principally as required mainstream courses in law schools. More broadly, critical race theory is a general approach that views race and slavery as central to American history, an undeniable point.

We must oppose this attack.

Harvey J. Graff,

Columbus

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Assault on critical race theory is an attack on democracy itself - cleveland.com

The signs are there. Is US democracy on a dangerous trajectory? – The Christian Science Monitor

Today the Monitor begins a periodic series of conversations with thinkers and workers in the field of democracy looking at whats wrong with it, whats right, and what we can do in the United States to strengthen it.

Lee Drutman is a senior fellow in thePolitical Reform programat New America, a Washington think tank. This spring he was one of the main organizers ofa letter signed by nearly 200 democracy scholarscalling for greater federal protection of voting rights.The impetus for the effort was the Republican push in many states to pass new voting bills, including restrictions on voting methods preferred by Democratic-leaning constituents, the granting of new authority to partisan poll watchers, increased legislative control over local election officials, and fines for poll workers who make mistakes or overstep their authority.

The organizer of an open letter signed by some 200 scholars warning of threats to U.S. democracy talks about what makes for free and fair elections, and how to bolster the system going forward.

These changes are transforming several states into political systems that no longer meet the minimum conditions for free and fair elections, the letter states.Hence, our entire democracy is now at risk.

In his book, Breaking the Two-Party Doom Loop, Mr. Drutman proposes increasing the number of major political parties in the U.S.The two-party system turns politics from a forum where we resolve disagreements into a battlefield wherewemust win andtheymust lose, he writes.

Today the Monitor begins a periodic series of conversations with thinkers and workers in the field of democracy looking at whats wrong with it, whats right, and what we can do in the United States to strengthen it.

Lee Drutman is a senior fellow in the Political Reform program at New America, a Washington think tank founded in 1999. This spring he was one of the main organizers of a letter signed by nearly 200 democracy scholarscalling for greater federal protection of voting rights.The impetus for the effort was the Republican push in many states to pass new voting bills, whose provisions include some restrictions on voting methods preferred by Democratic-leaning constituents, the granting of new authority to partisan poll watchers, increased legislative control over local election officials, and fines for poll workers who make mistakes or overstep their authority.

GOP-led electoral changes in battleground states are, among other things, transforming several states into political systems that no longer meet the minimum conditions for free and fair elections, the letter states.Hence, our entire democracy is now at risk.

The organizer of an open letter signed by some 200 scholars warning of threats to U.S. democracy talks about what makes for free and fair elections, and how to bolster the system going forward.

Mr. Drutmans most recent book, Breaking the Two-Party Doom Loop: The Case for Multiparty Democracy in America, argues that increasing the number of major political parties in the U.S. could diffuse the extreme partisanship that currently bedevils the countrys politics and produces legislative gridlock in Washington.

The two-party system with winner-take-all elections leads us to see our fellow citizens not as political opponents to politely disagree with but as enemies to delegitimize and destroy, he writes. It turns politics from a forum where we resolve disagreements into a battlefield where we must win and they must lose.

This conversation has been lightly edited and condensed for clarity.

You were one of the primary organizers of the democracy scholars letter, warning of the deterioration of democracy in the U.S.How did that come about?

There is a real sense of anxiety among a broad community of scholars who have studied democracy for a long time, both domestically and around the world. And there are certain, pretty consistent patterns of democratic decline you can see if you study this stuff and understand what the basics of democracy are. What happens when one party stops believing in the idea that theres a legitimate opposition?

Theres a real sense of urgency, I think. And were having a lot of debate about voting reform, and we felt it was important for folks to know the context that people who think about this for a living can provide. It seems like many people are thinking about democratic collapse something like the way we were thinking about COVID-19 in January of 2020 the sense that it cant happen here because weve never had something like that, or that its something that happens in other countries.

But you know, the signs are there.

There have been a lot of open letters from different professions and academic disciplines over the last year or so. Do you think this will lead to concrete change? And if not, whats the purpose?

Maybe itll change votes; I dont want to rule out that possibility. But I think the point is to communicate a sense of the stakes and to articulate something that a lot of people are feeling in an authoritative, potentially forceful way.

You write that several states are transforming their political systems to the point where they no longer meet the minimum conditions for free and fair elections. Which states are those?

Were thinking about whats happening in Georgia and in Texas though the new voting law in Texas hasnt yet passed.

What is the definition of a free and fair system? Its a system in which all voters count equally regardless of which party they support, or their race or ethnicity, or any other characteristic. Where both parties have an equally fair chance of winning.

When you tilt the playing field decisively in one direction or another, and give power to partisan legislators to override and intimidate election administrators, that does not meet the conditions of a free and fair democracy. Its not a hard and fast line. But the trends are all in the direction of making free and fair competition harder, putting thumbs on the scale, in Iowa, Arkansas, Montana, and so forth.

The letter focuses on statutory changes, election procedures, vote certification, and other rules. But the impetus for many of these changes was former President Donald Trumps unfounded claim that the 2020 election was stolen. Whats the bigger danger to democracy bad rules, or people operating in bad faith?

Thats a good question. Its a little bit of both.

Democracy depends on both rules and norms. And you can have good rules, but if you have people who are intent on abusing those rules or changing them, theres only so much the rules can do. On the other hand, the rules can also put some hard constraints on what people can get away with.

Theres an argument that if a party is truly intent on election subversion, there are limits to what the rules can accomplish if that party has power. And we see that time and again, in countries around the world. Plenty of powerful parties break and bend and rewrite the rules. So that is a fundamental challenge. But at the same time, you wouldnt say we shouldnt have any rules, right?

Your most recent book is titled Breaking the Two Party Doom Loop.Why do two major parties in a big country create a doom loop?

We have in the U.S., really for the first time in decades, two truly nationalized parties with no real overlap. For the first time, its a really genuine two-party system. And the fight is over national identity. Its over the story of America. Its over who we are. And that has created this incredibly high-stakes conflict in which we have closely fought elections. Theres an incredible amount of demonization and negative partisanship, which is creating a politics in which winning elections is more important than preserving fair rules of the game.

Democracy is a system that relies on parties being able to lose elections and a set of rules surrounding elections that all sides agree are fair and impartial. When you lose that, it just becomes a matter of competing force. Democracy is a way of resolving disputes without violence. But if you cant agree on the rules, then violence becomes the way that you enforce things. And thats the dangerous trajectory that were on.

What you propose is taking this political polarization and diffusing it among more political parties? Is that right?

Yeah. Exactly.

Essentially, the problem is that [right now] the way that parties win is by being the lesser of two evils, and by demonizing their political opponents, because thats the unifying force in parties and it works. But youve never heard the phrase lesser of three evils for a reason.

If you look at multiparty elections, candidates and parties have to stand for policy. They cant just get by on attacking the other side as extremist and dangerous.

In a multiparty system, parties form coalitions and work together on different issues.If you want to have a sustainable political system, you need to have constantly shifting allegiances you cant have permanent enemies. And theres something about the binary condition that really triggers this kind of us-against-them, good versus evil, thinking.

There wouldnt necessarily be less overall conflict in such a political system, right? It would just be spread around say, between an ethnonationalist right-wing party and a conservative libertarian party, or between a progressive party and a center-left party?

Right, you have shifting conflict. Politics is about conflict, because the issues that we agree on are not political issues, and elections are not about the issues that we all agree on; they are about the issues that we disagree on.

With multiple parties, you can form different coalitions and you can have logrolls [the trading of favors], you can have positive sum deals. It changes the dynamic.

People might be more open to jumping between different parties as happens in other multiparty democracies and considering different ideas. And its not a threat to their identity. They might be more likely to encounter people from different parties in day-to-day life.

But theres plenty of evidence that democracies with single-member legislative districts and winner-take-all voting inevitablytend toward a two-party system. Is there a way around that?

Proportional representation. [Note: This is an electoral system in which the number of seats held by a political group in a legislature is determined by the percentage of the popular vote it receives.]

If you have single-member districts as we do, youre probably going to have two parties. But if you have larger districts, you can have proportionality, and you can have more parties. We can have multimember districts in the U.S. House; its totally constitutional.

Wouldnt an anti-democratic ethnonationalist party remain a force under this system? Thats what weve seen in Europe.

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They would be a powerful force, but they might break up into different groups, some of which are more anti-democratic than others. The dynamics would be different. Youd still have an ethnonationalist faction similar to the AfD in Germany. But the faction would be more isolated and it would be easier for the other groups to organize against it.

On their own, they would be a distinct minority. And they should be! Youve got to give the pro-democracy supermajority in America a chance to organize.

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The signs are there. Is US democracy on a dangerous trajectory? - The Christian Science Monitor

Our democracy is truly in the hands of this Senate, says D.C.s mayor at committee hearing on statehood – MarketWatch

WASHINGTON (AP) Proponents of statehood for Washington, D.C., vowed Tuesday to keep pushing even though the prospects were dim as the bill began working its way through the Senate.

Our democracy is truly in the hands of this Senate, Mayor Muriel Bowser told the Senate Homeland Security and Governmental Affairs Committee. We will not quit until we achieve full democracy. We will keep pushing until D.C.s tragic disenfranchisement is rectified.

In Tuesdays hearings on a bill that would make Washington, D.C., the 51st state, Democrats framed it as a long-standing injustice finally being made right. The nations capital has a larger population than Wyoming or Vermont, and its estimated 712,000 residents pay federal taxes, vote for president and serve in the armed forces, but they have no voting representation in Congress.

Republicans, however, dismissed the bill as a cynical Democratic power play since the District votes solidly Democratic. They claim statehood was never the intention of the Founding Fathers and insist that Congress doesnt even have the power to change D.C.s status.

What Congress cannot do is override the Constitution anytime it becomes inconvenient for a majority in Congress, said Sen. Josh Hawley of Missouri. The Constitution endures and that is the fundamental premise of our Democratic republic, and I fear that premise is being threatened by this legislation.

The bill proposes creating a 51st state with one representative and two senators, while a tiny sliver of land including the White House, the U.S. Capitol and the National Mall would remain as a federal district.

Instead of the District of Columbia, the new state would be known as Washington, Douglass Commonwealth named after famed abolitionist Frederick Douglass, who lived in Washington from 1877 until his death in 1895.

The bill comes as D.C. statehood is receiving unprecedented levels of popular and political support. It received a formal endorsement from the White House, which called Washingtons current status an affront to the democratic values on which our Nation was founded.

The effort has also become intertwined with Americas ascendant racial justice movement, with progressive activists framing it as an issue of civil rights and political enfranchisement. The proposed state would be approximately 46% Black.

An identical statehood bill passed the House in 2020 but died in the then-Republican-controlled Senate. Now, with the 2020 elections leaving Democrats in control of both chambers of Congress and the White House, statehood advocates had hoped for a different outcome.

This version of the legislation passed the House in April by a 216-208 vote along party lines, but the Senate is a long shot. The Senate is split 50-50 with Vice President Kamala Harris as the tie-breaker. Not long after the House vote, however, Democratic Sen. Joe Manchin of West Virginia essentially blunted whatever momentum that statehood had gathered by saying he opposed pursuing it through an act of Congress.

Even with Manchins support the measure would have been vulnerable to a Republican filibuster. Barring a dramatic reversal by Manchin or unexpected defection by a Republican, the measure appears stalled. And moderate Republicans like Maine Sen. Susan Collins are already on record as saying they oppose D.C. statehood.

D.C. has long chafed under its relationship with Congress, which essentially has the power to veto or alter any local laws. The limitations were put in stark relief last summer during a series of protests over the killing of George Floyd in Minneapolis and against general police brutality. After a night of widespread vandalism, President Donald Trump went around Bowser and called in a large federal force to restore order downtown.

On Jan. 6, when a mob of Trump supporters physically overwhelmed U.S. Capitol Police and invaded the Capitol building, Bowser did not have the authority of a governor to call in the National Guard. Instead, that request went to the upper levels of the Pentagon and there was a notable delay in the Guard deployment while dozens of D.C. police officers rushed into the building as reinforcements.

Bowser at the time quickly pointed out the ironies of Washington residents risking their lives to defend a Congress where they didnt have a vote.

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Our democracy is truly in the hands of this Senate, says D.C.s mayor at committee hearing on statehood - MarketWatch

What’s the goal: Democracy or efficiency? How to understand the impassioned debate over Big Tech and antitrust – MarketWatch

CHICAGO (Project Syndicate)With the prominent antimonopoly advocate Lina Khan having been appointed the new chair of the Federal Trade Commission, it is a good time to consider what influence the so-called New Brandeisians will have on U.S. antitrust law.

Khan is a leading figure in that movement, and another prominent exponent, Tim Wu, now sits on President Joe Bidens National Economic Council. Arguing that antitrust law and enforcement are too weak and ineffectual, the New Brandeisians, named for the late Supreme Court Justice Louis Brandeis, are more open than traditional antitrust experts to breaking up monopolies.

Their argument was that the robber baronsmen such as the oil tycoon John D. Rockefeller and the steel magnate Andrew Carnegieand their companies were simply too powerful. Their political and economic power were inconsistent with democratic self-government.

Even before the New Brandeisians achieved prominence, there was a growing consensus that U.S. courts and regulatory agencies do not enforce antitrust law as vigorously as they should. A long period of lax enforcement has led to more concentrated markets, higher prices for consumers, and skyrocketing corporate profits. A partial solution is to give regulators more resources and strengthen the standards that regulators use to approve big business mergers. A bill sponsored by Democratic Sen. Amy Klobuchar of Minnesota proposes to do precisely that.

But beyond supporting these simple measures, the consensus among antitrust experts dissolves. The debate is shaping up as one between centrist or center-left technocrats who consider more enforcement resources and higher merger standards sufficient, and New Brandeisians who seek much more. (The right seems to be sitting on the sidelines, merely grumbling that Big Tech companies discriminate against Republicans.)

For their part, the technocrats are committed to traditional antitrust analysis, which weighs the benefits of market competition against the advantages of size. They believe that firms should be allowed to grow by offering superior products and services, even if they end up dominating markets. Mergers should be permitted as long as they generate economies of scale that outweigh the anticompetitive effects.

The New Brandeisians draw their inspiration from the antimonopoly agitation of the Gilded Age. Late-19th-century populists and 20th-century progressives such as Brandeis were not primarily concerned with efficiency, nor did they distinguish carefully between the effects of monopoly on prices, wages, competition, and other economic variables.

Their argument was that the robber baronsmen such as the oil tycoon John D. Rockefeller and the steel magnate Andrew Carnegieand their companies were simply too powerful. Their political and economic power were inconsistent with democratic self-government. It was this problem that antitrust law was meant to solve.

In the new antitrust debate, Big Tech is the flashpoint. When the technocrats look at that sector, they see firms that offer superior products and services at low prices, or even at no price at all. Business practices that raise antitrust concerns can be handled under prevailing standards, and should be condemned only after proof that, despite appearances, they raise prices. But the New Brandeisians see the recurrence of Gilded Age monopolization and insist that while the harms are not recognized by traditional antitrust analysis, they are harms just the same.

One such harm is political interference. Monopolies no longer dole out bribes to legislators as they did in the 19th century, but Big Tech clearly exerts substantial influence on U.S. politics. Democrats are still seething that the Russians used Facebook to propagate misinformation before the 2016 election, while Republicans complain that Facebook FB, +2.03% and Twitter TWTR, +2.94% kicked Donald Trump off their platforms. Depending on how you look at it, YouTube GOOG, +0.43% either spreads conspiracy theories or censors legitimate political dissent.

Another concern is perceived unfairness. Google supplies search results that include listings for Google-owned products and services. The Apple App Store sells Apple AAPL apps that compete with third-party apps. Critics argue that these and other companies take advantage of information they obtain from competitors who use their platforms to give their own products and services a competitive edge.

Yet another problem is the loss of consumer autonomy, stemming from the fact that Big Tech knows everything about us, from our shopping habits and search histories to our medical records and personal communications. Never before has so much been known about so many people.

In authoritarian countries, this information is shared with the government. In the U.S., not so much; but it is shared with other companies, and it often falls into the hands of hackers and other bad actors. Worse, some tech companies have used their engineering prowess and psychological know-how to addict and manipulate users.

Finally, the Big Tech companies are seen as a threat to a diverse, textured internet economy. Many people lament the loss of quirky online offerings, which have been replaced by the drab monocultures of Facebook, Google, and Apple.

The suddenness of change helps to explain why people were once so upset when Walmart WMT, +0.46% moved in and destroyed many small towns central shopping districts. While prices fell, a unique, often beloved, local commercial ecosystem was lost. Now, many towns are plowing taxpayer dollars into downtown revitalization efforts, using public funds to recreate amenities that the public valued and that the market destroyed.

Against this backdrop, traditional economists argue that antitrusta technical area of the law concerned with economic efficiencyis not the solution. Threats to small towns or larger democratic and economic values are better addressed with campaign finance laws, zoning laws, health and safety regulations, and so forth.

There is much good sense to this view: if we replace antitrust law with an all-things-considered judgment about the good and bad that any large firm may do, regulators and courts will flounder, and political considerations will intrude. It would be better to address the pathologies of the tech market with well-defined legislative reform.

But New Brandeisians would counter by pointing out that big companies can use their political power to obstruct those very reforms. After all, the tech giants have already opposed privacy and data protections, and regulations of corporate speech will go nowhere with the current Supreme Court precedents that protect it.

Remember, the main 19th-century worry about monopolies was that they wielded too much political power. If you cut them down to size, perhaps they wont, allowing democracy to flourish. Antitrust law is the only existing tool in U.S. law for converting a big company that has too much power into a bunch of small companies that dont.

Eric Posner, a professor at the University of Chicago Law School, is the author, most recently, of The Demagogues Playbook: The Battle for American Democracy from the Founders to Trump.

This commentary was published with permission of Project SyndicateBidens Antitrust Revolutionaries

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What's the goal: Democracy or efficiency? How to understand the impassioned debate over Big Tech and antitrust - MarketWatch