Election 2020’s fundamental question: ‘What defines America?’

President Donald Trump has spent much of the past four years pushing boundaries and breaking through norms and traditions that have long defined American democracy.

He’s declined to sever ties with his businesses while in office, saying “the president can’t have a conflict of interest.” During a summit with the Japanese prime minister, the president’s Mar-a-Lago club charged the government $3 for Mr. Trump’s own glass of water.

He’s tried to harness the powers of U.S. justice for his own benefit, publicly pushing his attorney general to jail political adversaries such as former President Barack Obama for unsubstantiated “treasonous” actions.

He’s attacked in advance the outcome of the upcoming presidential election, falsely saying mail-in balloting is inherently fraudulent. He tells his supporters that Democrats can win only if voting is “rigged.”

In many ways President Trump may simply be the apotheosis of long-standing strains and problems with the great machinery of democratic governance established by the Constitution in 1788. The rise of toxic, tribal partisanship has made the nation’s political combat much fiercer. Both parties are beginning to regard the other as not just opponents, but perhaps enemies. Both may be beginning to lose faith in the fairness of the rules of the U.S. political system.

But on top of these existing problems, Mr. Trump has piled an “extraordinary rhetorical audacity and recklessness” that has had “severe costs,” in the words of Obama White House counsel Bob Bauer. This may have damaged not just political norms, but the underlying values they represent: tolerance of opponents, forbearance in the use of power, belief in the power of voting.

It’s these values, not norms and traditions per se, that really need defending, say experts on democratic rise and decline. If they decay too much, the parties may think the game of democracy is in fact no longer worth playing, and become locked in a downward spiral of mutually abusive hardball tactics.

The good news is that this is far from foreordained. For instance, Mr. Bauer and co-author Jack Goldsmith, a top Justice Department official under President George W. Bush, in “After Trump: Reconstructing the Presidency,” have compiled a list of more than 50 proposed legislative and executive changes that could plug and patch over holes and faults exposed by the president during the past four years. 

Others, including Democrats in Congress, have begun similar efforts. Their point is to have a national reform effort for democracy following Mr. Trump’s exit, whenever that is. The model is the post-Watergate era, when there was at least something of a bipartisan national consensus that things had gone badly wrong and needed to be fixed.

After all, the ability to change and correct course is fundamental to democracy, says Sheri Berman, a professor of political science at Barnard College and author of “Democracy and Dictatorship in Europe: From the Ancien Régime to the Present Day.”

Democratic elections can be break points that push national politics in a transformative direction, as they did in the U.S. following Watergate or the onset of the Great Depression.

In the short run, Professor Berman says she’s worried about the 2020 vote and the possibility of a crisis instigated by fraud charges and court intervention. But for the long run she’s more hopeful. 

“I’m an optimist about democracies’ ability to shift course and remedy mistakes,” she says.

How to break a vicious cycle

Not all Americans share that optimism. In fact, many are pessimistic or worried about the state of the nation’s democracy and government, according to polls.

According to recent Pew Research Center figures, 59% of Americans are “not satisfied” with the way democracy is working in the country. By way of contrast, the same figure among Canadian citizens is 33%.

Only 46% of Americans agree that the nation is “run for the benefit of all,” according to Pew. That’s down from 65% who agreed with that statement in 2002. And only a quarter of U.S. citizens believe America’s system of democracy is getting stronger, according to a Democracy Project survey. Sixty-eight percent think democracy is getting weaker.

“Confidence in our governing institutions has been weakening over many years, and key pillars of our democracy, including the rule of law and freedom of the press, are under strain,” concludes a special report of The Democracy Project, a joint venture of Freedom House, the Penn Biden Center, and the George W. Bush Institute at Southern Methodist University.

One way to understand what’s happening to American democracy is to think of it as a game in which both sides want to keep playing for an infinite number of rounds, say experts. It’s important that neither side is ever permanently defeated, or becomes so angry and demoralized that it wants to stop playing.

Two key unwritten democratic norms underlie this system, write Harvard University government professors Steven Levitsky and Daniel Ziblatt in their 2018 book, “How Democracies Die.” The first is mutual toleration, in which each side accepts the other as legitimate. The second is forbearance, in which politicians resist the temptation to use temporary control of political institutions to maximum advantage.

Both have eroded in recent years, says Professor Levitsky in an interview.

“It’s definitely gotten worse,” he says. “It was an especially speedy effect.”

The obvious example for this is the partisan struggle over Supreme Court nominations. The GOP-controlled Senate denied Democratic Supreme Court nominee Merrick Garland a hearing in President Barack Obama’s last year in office, then turned around and pushed through Trump nominee Amy Coney Barrett under similar circumstances. 

Republicans, for their part, cite what they perceive to be harsh Democratic treatment of other nominees, including Justice Brett Kavanaugh in 2018 and the failed nomination of Robert Bork in 1987, as partial justification for their tough tactics. They also point out that the party that controls the Senate can do what it likes.

In response, some Democrats are now calling for an expansion of the Supreme Court if Joe Biden is elected president and the party wins the Senate, along with a possible end to the Senate filibuster.

“There is much greater pressure in at least a wing of the Democratic Party for hardball moves. Even at the rank and file level,” says Professor Levitsky. 

He and co-author Professor Ziblatt support some sort of Democratic response to what they characterize as minority rule in the United States, in which the party that wins the popular vote can still lose in the Electoral College. That response might include ending the Senate filibuster, and extending statehood to Puerto Rico and Washington, D.C.

Other experts worry that this sort of thing in other countries has tended to further ignite a tit-for-tat cycle. If a Democratic Party in control of Congress and the White House names two new states, what would happen the next time the GOP is in the same position? Division of states to add yet more senators? It’s easy for parties to take short-term gains, while believing against evidence that they’ll be able to temper the long-term cost when the other party is in power.

“Once you get into this sort of vicious cycle, it is very hard to break,” says Professor Berman of Barnard College.

“This is not a recipe for democratic health”

President Trump’s supporters often say he was elected in 2016 to shake up the status quo, and that breaking norms and old traditions is just what they expected him to do. Complaints about the threat he poses to the existing order is simply liberal pearl-clutching, in this view.

In addition, he has just taken advantage of existing trends, they say. He’s built and expanded on things that were already happening.

But that’s something that truly authoritarian leaders often do, says Valerie Jane Bunce, a professor of government at Cornell University who specializes in the rise and fall of democracies. Hungarian Prime Minister Viktor Orban and others have exploited existing institutional weaknesses to carry out anti-democratic agendas, Professor Bunce says.

“Trump is unique in how far he has gone in this direction and how easy it was for him to do so as a result of both political polarization ... and the decline of U.S. political institutions,” she says in an email.

The partisan polarization of America long predates the Trump era. For decades, American social identity has gradually been aligning with political identity, producing parties that are not only ideologically different – liberal versus conservative – but racially, educationally, and religiously distinct as well. The result: an increasingly powerful “my team” effect, to the point where members of both parties hold highly unfavorable views of their opponents.

Polarization is what protected President Trump after he was impeached for improperly pressuring the president of Ukraine to open an investigation into former Vice President Biden and his son Hunter Biden. The trial vote in the Senate was a virtually straight party affair, with all but one Republican, Sen. Mitt Romney of Utah, voting to acquit.

Polarization is what’s kept Senate Republicans in general lockstep behind President Trump since, given his hold on their party’s base and lawmakers’ fear of being challenged in a primary by a more pro-Trump supporter, or belittled by a Trump tweet for being insufficiently supportive.

Polarization will also likely exist long after President Trump has left the stage, says Jeffrey Stonecash, professor emeritus of political science at Syracuse University. To understand it, we need to examine the ideas and values that drive it – which groups embrace some ideas and not others, and how those groups politically align, he argues.

At the heart of all this is a question, Professor Stonecash says: What defines America? 

“A fundamental argument coming out of the Democratic Party is that things are not fair,” he says. “You have a Republican Party making a moral argument that’s fundamentally different ... that it’s not about ‘fairness,’ it’s about who’s more deserving.”

As for the decline of U.S. political institutions, President Trump has benefited from the gridlock that has overtaken Congress in recent decades, weakening its ability to counter the executive branch. The presidency, meanwhile, has been correspondingly gaining in power. Presidents George W. Bush and Obama both made aggressive moves with executive orders, after all; both ignored Congress on war powers when it suited them. In that sense, with executive orders that have mandated big changes in U.S. immigration policy, the raiding of Pentagon accounts to fund the southern border wall, and the assassination of a leader of the Iranian Revolutionary Guard, President Trump is simply taking precedent and dialing it up several notches.

“This is not a recipe for democratic health,” says Professor Berman. 

Recipe for Washington reform?

If President Trump wins the 2020 election, his norm-breaking and stretching of Oval Office powers – things his opponents often label abuse of power – will undoubtedly continue. He will likely see reelection as voter acceptance of his behavior.

It might even accelerate, given that the president has over the past four years steadily weeded out top officials who try to block some of his efforts. For instance, Attorney General Barr has so far ignored Mr. Trump’s public insistence that he arrest former President Obama, Hillary Clinton, and Joe Biden on unsubstantiated charges that they have launched a “coup.” Could the president possibly find a new attorney general who would carry out such incendiary action? 

Mr. Trump to this point in his presidency has not actually acted in an unfettered manner, says Harvard Law School professor Jack Goldsmith. He has faced some pushback from government institutions. He was impeached by the House earlier this year, after all.

Courts have blocked or forced major changes to his travel ban and other administration efforts. Aides have sat on or refused requests they deemed controversial or illegal, such as Mr. Trump’s insistence in 2017 that special counsel Robert Mueller be fired.

Thus at least some of the guardrails of American democracy remain in place.

“Norms can work,” says Professor Goldsmith.

If Mr. Biden is elected president and Democrats win a majority in both the Senate and House, however, Washington is likely to see a major effort to produce a package of democracy reforms intended to repair and rebuild the norms and traditions shattered in recent years.

The analogy may be to the 1970s, when following the turmoil of Vietnam and the Nixon era, Congress reformed the civil service and presidential record-keeping and transparency while passing major laws such as the War Powers Act, the Foreign Intelligence Surveillance Act, the Privacy Act, the Inspector General Act, and other open government bills.

“If Biden wins, I suspect there will be an attempt to engage in reforms kind of like after Watergate,” says Professor Berman of Barnard College.

House Democrats have already begun drawing up a list of reforms, which includes among other things a mechanism to enforce the Constitutional ban on presidents accepting things of value from foreign nations, reassertion of congressional control of the power of the purse, a requirement that political campaigns report suspicious foreign contacts to the FBI, and limits on presidential emergency powers.

Mr. Bauer and Professor Goldsmith, who served a Democratic and a Republican administration respectively, have fleshed out an extensive blueprint of possible overhauls in their “After Trump” book.

“The proposals are based on the assumption that there may be more Trumps in the future,” says Professor Goldsmith. “The goal is to put constraints in place.” 

Addressing financial conflicts of interest should be one reform priority, they urge. They recommend writing in law a requirement that presidents and vice presidents and candidates for those offices disclose their annual tax returns. They also urge that Congress bar presidents from active or supervisory roles in the oversight of any business, even if such a role is informal.

Ensuring Justice Department independence is another priority, the pair say. That means amending internal department rules and guidance to emphasize ethical principles insulating law enforcement decisions from improper partisan political considerations.

They would also prohibit presidents from pardoning themselves and change bribery laws to make clear that it is illegal to dangle pardons to bribe witnesses or obstruct justice.

The point is not to cut down the presidency. America needs a powerful chief executive to ensure effective national governing. The point is to ensure that voters retain confidence that presidents – of either party – can’t go too far.

“You can’t stop future Trumps if you think this is only behavior a Republican president would engage in,” says Professor Goldsmith.