Patrick Garry
The drift toward an undemocratic politics
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By Patrick Garry
June 16, 2011

We live in a time of dire predictions and warnings. The newspapers and television talk shows teem with prognostications of doom. There is no shortage of issues and problems that threaten the health and survival of our society and politics. Escalating government debt. A sluggish economy. Increasing global competition. Out of control health care costs. A faltering public educational system. And on and on.

Accompanying all these problems is an indictment of our political system. Countless lamentations are issued against the highly charged partisan climate of our politics. According to the critics, an intense partisanship is reflective of a political system that is breaking down. Ideological division and combat is derided as destructive partisan bickering.

But even the sharpest partisan conflict is not necessarily destructive or suggestive of an eroding political system. Indeed, American politics throughout most of the nineteenth century was even more partisan and combative than it is today. And yet, that period was the most democratically vibrant era of American history.

It isn't the current partisanship that threatens our democratic politics. And it isn't all the underlying fiscal and policy issues that portend a demise of America. But what does truly jeopardize our democratic society is a deliberate abandonment and rejection of the means and processes of democracy.

This abandonment and rejection is increasingly evident in how our elected officials are dealing with controversial issues. When Wisconsin governor Scott Walker introduced a bill to curtail the collective bargaining rights of public employee unions, the opposing party's members of the state senate hid out in an Illinois hotel so as to avoid having the bill come to a vote. A similar scenario occurred in Ohio. A democratic vote was prevented because opponents of the bill knew they would not prevail in that vote.

The U.S. Congress has recently passed laws calling for sweeping regulation of the health care and financial services industries. But at the same time, it has left the drafting of those controversial regulations to newly-formed and untested federal agencies. Indeed, over recent decades, Congress has continually and increasingly delegated its lawmaking duties to unelected bureaucrats. Whereas a vibrant democracy requires affirmative self-government, Congress seems increasingly to be practicing a kind of passive avoidance — a "let someone else do it" approach.

State election laws seeking to ensure the integrity of democratic elections and prevent electoral fraud are being opposed by judicial challenges and calls for a campaign of civil disobedience. Laws requiring photo identification of voters have been criticized as discriminatory against poor and minority voters. And yet, these same persons must have photo identification to purchase a bottle of wine or write a check or rent a car or open a bank account. Apparently, a good restaurant meal is worth the advance planning of a reservation; but the most important act in a democracy does not deserve the advance planning needed to get a photo ID.

During this current era of heated debate regarding the federal budget, the U.S. Senate attacks budget proposals made and passed in the House of Representatives, yet continually fails to pass a budget of its own or to offer any meaningful alternative. It has adopted the sole function of naysayer, rejecting any responsibility to offer a proposal or position on which the voters might hold it accountable. The 2010-2011 Senate has become the 'Do-Nothing' Senate — the complaining but unaccountable Senate. It has not even offered a budget in 750 days. Majority Leader Reid says, given the Republican control of the House, that it would be "foolish" for the Senate to even bother.

Not only has President Obama failed in his political leadership role to put forth a Medicare budget plan, but he has actually violated a democratically enacted mandate to do so. In the Medicare Reform Act of 2003, Congress stated that if Medicare's trustees forecast that general tax revenues will be required for 45% or more of Medicare expenses within a seven-year period, then the president must propose legislation to correct the problem within 15 days of his next budget submission. In their annual report this spring, Medicare's trustees stated that the 45% level had been reached and that a presidential proposal was required. However, the president has continued to ignore the law, failing to submit a plan to remedy Medicare's financial problems.

Recently, Minnesota governor Mark Dayton refused to let his state commissioners testify before a legislative budget committee. Even though state statute requires commissioners to provide the legislature with full access to information about the state budget, the legislative request for commissioner testimony was denied by Governor Dayton, who said he would not let legislators from the opposition party "publicly berate his agency heads." Moreover, when budget negotiations between the Governor and state legislature became difficult, Dayton proposed bringing in a professional mediator to craft a solution. In other words, when the democratic process becomes tough, look to a paid consultant to do what elected representatives should be doing.

The drafting, negotiation and passage of last year's health care reform bill, just as with the health care bill attempted by President Clinton in 1994, was conducted in anything but an openly democratic way. Despite the promise that all negotiations related to the comprehensive health care legislation would be carried live on cable television, the negotiations in fact were conducted in private, far outside the view of the public and press. And then, once the bill was drafted, it was sold not as a democratic law that would uplift and strengthen society, but as something like a new credit card for short-term oriented consumers — with television ads telling seniors they would receive a $250 check in the mail right away if the bill passed. The bait was the $250 check, but the hidden hook was the federal mandate that every individual had to buy insurance.

There is no question that our political system must grapple with some very serious and urgent issues. But throughout history, America has always had to address difficult and highly contentious problems. The lesson of history is that America can survive and triumph over its difficult challenges. But this triumph has always occurred through the strength and vibrancy of American democracy. What this country can't survive is an abandonment of its defining principles and foundations. And there is no more important principle or foundation than an open and participatory democratic process.

© Patrick Garry

 

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Patrick Garry

Patrick Garry is a professor of law at the University of South Dakota, and Director of the Hagemann Center for Legal & Public Policy Research... (more)

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