Why Can’t House Republicans Have Nice Things?

David Super

      That may seem a strange and perhaps uninteresting question to ask, particularly given that I (and I suspect many readers) have no great desire for the current set of House Republicans to enjoy nice things (except, perhaps, all the many perks our system offers to former Members of Congress).  Yet on the face of it Freedom Caucus Members would seem to have a point when they say that surely Speaker Johnson could have extracted some concessions for the Ukraine aid bill now moving through the House. 

     The answer provides important insight into how Congress works; that insight's importance goes far beyond today’s House Republican Conference.  Today’s Democrats (and Senate Republican leadership) seem to have mastered these lessons; that has not always been the case and may not be in the fairly near future. 

     Repeat players.  The core point is understanding how negotiations work among repeat players.  In every negotiation, no matter how important the subject-matter, the parties have to be mindful of all the other negotiations that inevitably will follow with the same parties.  When one is under contract to buy or sell a house and one’s counterparty seeks to better their deal through dishonest means, it may be quite plausible to accede to some or all of those demands to get the transaction completed.  You will never deal with these people again so giving them the sense that you are a pushover has no monetary cost beyond the concession itself. 

     In Congress, however, every negotiator has to keep in mind not just how a concession will affect the value of this deal but also the value of every future deal they will negotiate with the same parties.  Imagine having negotiated a bill with Senate Minority Leader Mitch McConnell and having been thoroughly owned in the process.  If you go back to him after having signed off on the deal and ask for a small additional unilateral concession from him, he will absolutely turn you down.  It does not matter that the legislation would still be a huge win for him even with your change:  he cannot afford to give you the idea that you do not have to stick by your deals because next time the leverage could be different.  If you go back to him seeking an additional concession while offering him one in return, you might do a bit better.  He still probably dislikes the idea of re-opening deals, but this offer is not disrespectful, and accepting it would not establish a precedent that would necessarily degrade the value of future deals.  He may demand a more desirable concession to drive home the point that deals are deals and to discourage you from trying this in the future.  He also may insist that the modifications move in a separate bill to preserve the sanctity of the original deal.  And he may just say “no”. 

     The Democrats grudgingly negotiated substantively ghastly anti-immigrant bill with Senate Republicans as the price for aid to Ukraine.  In so doing, they created significant splits within their political base.  Republicans got essentially everything they sought in this bill.  To add insult to injury, House Republicans refused to participate in these negotiations, presumably so that they could demand even more after their Senate counterparts cut a deal.  Republicans then walked away from a bill everyone knew was a huge Democratic capitulation for nakedly electoral reasons on orders from former President Trump.  Reaching and then failing to honor an agreement is a cardinal failing among repeat-player negotiators, all the more so when one’s counterparty bore significant costs from the very existence of the deal.  Once Republicans did this, Democrats absolutely could not make any further concessions regardless of how they felt about Ukraine:  it would invite more intolerable negotiating behavior in the future.  From that point on, the leadership on all sides understood that negotiations were over and the issue would be resolved by raw political pressure.  When Ukraine and its allies ultimately won that struggle, making sure that House Republicans received no rewards for their bad-faith negotiating was crucial. 

     Priorities matter.  Republicans underperformed their leverage in this year’s appropriations battles because they proved unable to set priorities.  Many wanted specific conservative policy changes.  They lacked the leverage to achieve immediately many of their most extreme demands, but they could have won significant downpayments.   A minority of House Republicans, however, wanted to virtue-signal by opposing all appropriations bills, regardless of content.  On bill after bill, this prevented them from passing anything as extreme cuts kept all Democrats away but nihilist Republicans denied leadership a majority – or even any guidance as to how to rewrite the bills to gain a majority.  This gutted the bar­gain­ing position of House Republican leaders, who could not plausibly promise anything approaching the number of votes needed to pass legislation. 

     This pattern repeated itself on the Ukraine aid legislation.  Some Republicans wanted to make the money a loan.  Some wanted to tie it to Republican policy priorities.  Some wanted to shrink the amount.  Some wanted to stall as long as possible.  Some wanted to kill the legislation outright.  And more than a few were going to do whatever former President Trump told them to do, making them complete wild cards.  The House Republican Conference lacked a mechanism for reconciling these positions that all Members would respect.  This left Speaker Johnson with little ability to promise anything in negotiations with Democrats, and everyone knew it.

     A striking contrast was the CARES Act, the largest coronavirus relief law.  Democrats opposed corporate welfare, but their top priority was aid to displaced people, especially through unemployment compensation.  Republicans disliked unemployment compensation, but they cared far more about subsidies for their friends and donors in the business community and about creating large discretionary pools of money for the Trump Administration to dole out in an election year.  Naïve partisans chided Democrats for being sloppy about accountability for the business subsidies or attacked Republicans for undermining the primacy of work with the liberalized unemployment benefits.  In fact, everything went according to plan.  Indeed, the CARES Act was remarkably well-drafted for such a large, complex bill negotiated and drafted under egregious time pressures. 

     Time matters.  Congressional repeat players tend to be fiercely risk-averse.  A great many concessions get made out of fear of highly unlikely events.  I have seen congressional staff win huge changes in bills by threatening to have their bosses give speeches that they and I (but not their opponents) knew their bosses were philosophically opposed to making.  And I have gnashed my teeth when staff gave away the farm to prevent a speech that the Member in question was clearly too distracted (and lazy) to give.  The key to this, however, is leveraging uncertainty. 

     House Republicans’ continual refrain that their leaders were cutting spending deals too early and should have held out for more forced Speakers McCarthy and Johnson repeatedly to wait to the last possible moment to move legislation.  At that point, they lacked time to negotiate and, because their party would obviously be blamed for a government shutdown, had no leverage with the Democrats.  They never had the traction to achieve the House Freedom Caucus’s maximalist demands, but dawdling at a time when the political outcome was a bit more uncertain destroyed what potential they had. 

     Similarly, even a month ago, Democrats’ ultimate ability to get enough signatures on a discharge petition on Ukraine aid was uncertain.  That uncertainty could have given Republicans some leverage.  But with Rep. Marjorie Taylor Greene threatening Speaker Johnson’s gavel if he moved any Ukraine aid bill and other Republicans hedging their bets about whether they would support her, the Speaker was afraid to try to cut a deal.  By this week, the news out of Ukraine was disturbing enough for more than enough House Republicans to signal to the Speaker they would soon sign the discharge petition if he did not bring Ukraine aid to the floor himself.  With all reasonable risk removed, he could no longer leverage Democrats’ risk aversion.   

     Rhetoric matters.  Although it has become fashionable to say that we live in a post-truth world, this is not entirely correct.  Floor speeches rarely persuade opponents now as they might have in the past, and we have all seen that telling innumerable verifiable lies is no longer an impediment to reaching the highest office, but the specific arguments one makes for one’s positions nonetheless matter.  Consider a relatively insignificant local bridge in a bipartisan infrastructure bill moving rapidly through Congress.  If a Democratic Member of Congress says that this bridge is the key to that Member’s strategy for the region’s economic rejuvenation, Republicans will likely roll their eyes and start making their dinner plans.  But if the Democrat praises the bridge because its construction will require demolition of a neighborhood that consistently votes Republican, Republican Members will have no choice but to fiercely object and to stop the legislation in its tracks until the offending bridge is removed – even if the demolition story is entirely fanciful and even if Republicans benefit far more from the overall bill.

     So long as opponents of Ukraine aid made fiscal conservative arguments, no matter how fatuous, they received a free pass.  But when House Republicans returned to demanding anti-immigrant legislation after having lured the Democrats into that trap and reneged previously, Democrats could not even consider immigration-related concessions without encouraging similar behavior in the future.  And when Reps. Greene and Gaetz shamelessly repeated long-discredited Russian propaganda about “Ukrainian Nazis” – have they really never seen pictures of Dmitri Utkin, co-founder of the Wagner Group that did much of the fighting for Russian in the first sixteen months of the war? – even many House Republicans felt obliged to call them out.  Refusing to sign the discharge petition to bring Ukraine funding to the floor previously had been an act of partisan Republican loyalty; Reps. Greene and Gaetz turned it into an admission of being an asset of a hostile foreign power.  For many of their colleagues, that was too much.  

     @DavidASuper1

Norm Breaking at Columbia

David Pozen

Recent events at my home university have inspired a torrent of critical commentary. That Columbia’s leadership declined to follow various norms of campus governance does not, in itself, prove that it acted unwisely. But seeing the pattern of norm breaking helps throw into relief the potential costs of its decisions in the future as well as the present. 

First, during President Shafik’s testimony on Wednesday before the House Committee on Education and the Workforce, she disclosed that several faculty members are under investigation for making discriminatory remarks. “President Shafik’s public naming of [these faculty members] to placate a hostile committee,” the American Association of University Professors observed, “sets a dangerous precedent for academic freedom and has echoes of the cowardice often displayed during the McCarthy era.” In setting this precedent, Shafik violated a longstanding norm of confidentiality regarding internal disciplinary proceedings. University rules provide that allegations of discrimination will be handled in a confidential manner. Often, these proceedings are handled so secretively that even the complainant is kept in the dark. To have an ongoing investigation revealed by a top administrator on live TV, in the absence of a subpoena or other legal compulsion, is a stunning departure from campus customs and investigatory best practices more generally.

Second, although President Shafik’s decision to invite the NYPD on campus to arrest students may have been within her formal authority, it breaks with an informal settlement that had been in place for more than a half-century. The last time the university called the cops on student protesters was April 1968;^* that episode ended so bitterly and bloodily that it yielded a norm of police noninvolvement. Since 1968, student protesters have repeatedly occupied Low Library, blockaded Hamilton Hall, held sit-ins in administrative offices, waged hunger strikes, staged walkouts, and more. Some of these protests led to disciplinary code charges. None elicited a criminal law enforcement response. This week’s encampment on the South Lawn posed a difficult problem for the university administration, to be sure, but not one that was different in kind, duration, or disruptiveness from scores of post-1968 protests. When the next extended student demonstration occurs, it will be hard to resist pressure to call in the cops again. 

Third, the most serious charge that President Shafik leveled against the student protesters, that their encampment created a “harassing and intimidating environment,” was made without the benefit of any factfinding process.^** “Discriminatory harassment,” defined to include the creation of “an intimidating … environment,” is prohibited by Columbia’s Standards & Discipline policy. But that policy, and the procedural protections that come with it, does not seem to have been applied here. This suggests that the university deemed the protesters’ expressive conduct, as well as their occupation of the lawn, to be in violation of the Rules of University Conduct. Yet while the Rules allow the restriction of “expression that constitutes a genuine threat of harassment,” President Shafik offered no examples of such threats, nor to my knowledge have any been reported. If this finding of harassment is based on the discomfort some feel from the presence or message of the encampment, then the harassment concept—intended to set an objective standard that preserves a wide berth for provocative speech—has become an engine of viewpoint discrimination. Either way, its application to this case indicates that the president’s office now believes it can make such fraught judgments summarily and unilaterally.

Other examples of recent ruptures might be added to the list. In the jettisoning of these institutional norms, one throughline is the prioritization of immediate objectives over longer-term considerations of academic autonomy and democratic self-governance—considerations that the norms had developed, however imperfectly, to protect. In the university as in the wider world, crisis has thus led not only to rising repression but also to the consolidation of presidential power. 

 ^* A reader has pointed out to me that this statement is incorrect, as twenty-odd students were arrested in 1996 for occupying Low Library and, according to the Columbia Spectator, “blockad[ing] the five entrances … to prevent University employees from entering.” (A preceding sit-in in the office of the Columbia College dean was not met with a police response.) I thank this reader and regret the error. Still, it is striking that the post-1968 norm against inviting cops on campus to arrest peaceful protesters seems to have remained so robust both before and after 1996.

 ^** Another reader contends that this sentence minimizes the seriousness of the trespass charges, which are not merely administrative but criminal in nature. But the basis for the trespass charges is that the protesting students had been suspended, effective immediately, for violating university rules—and therefore were not allowed to be on campus. And the most serious (though not the only) rule that the protesters were deemed to have violated, as far as I can tell, was the creation of a harassing and intimidating environment.

Abrams Institute Conversations: Will the Supreme Court Let States Take Control of the Internet?

JB

Here is a conversation between Tim Wu and myself, moderated by Floyd Abrams, about the First Amendment issues in the NetChoice cases before the Supreme Court. (Tim and I participated in writing amicus briefs on opposite sides of the case.) 

This event, which was recorded on March 4, 2024, is a part of a series of conservations on free speech issues hosted by the Abrams Institute for Free Expression at Yale Law School. 

The Supreme Court's First Chat-GPT Opinion

Gerard N. Magliocca

A bill is pending in the Nebraska Legislature to return that state to a "winner-take-all" system for allocating electoral votes. In 2020, President Biden won an electoral vote in Nebraska under the current "split" system even though President Trump easily carried the state. Nebraska Republicans are eager to avoid a repeat especially given that the 2024 election could come down to a single electoral vote.

If enacted, this law should face constitutional questions under Trump v. Anderson. Some of the Justices at oral argument expressed dismay at the possibility that one state could decide a presidential election. This was contrary to the Constitution's structure, they said. They also worried about retaliation. If Nebraska can do this for partisan advantage, why can't another state do the same? Where will this end? 

Of course, no such constitutional scrutiny will be given to this sort of change in Nebraska or to state laws that will probably keep Robert F. Kennedy Jr. off the presidential ballot in some states. The logic of Trump is something that only Chat-GPT could love.

UPDATE: Nebraska lawmakers voted down the bill and doubled down on our patchwork method of allocating electoral votes.

How the Supreme Court uses ‘tradition’ to take away the rights of Americans

Andrew Koppelman

Mark Milley and the Constitution

Mark Tushnet

One matter that’s been largely unremarked upon in discussions of Trump, January 6, and the abortive “coup d’etat” (scare quotes because, compared to real coup attempts this one was a comic opera) is the role of the US military—or, more precisely, the proposition, which everyone seems to take for granted, that the US military wouldn’t have supported the coup (in contrast to Brazil, where the possibility of military support for a Bolsonaro coup was real and openly discussed). What follows are some tentative thoughts about this issue.

That the military would not intervene is taken for granted, I think, because people assume (correctly) that military leadership at the highest levels understands that their duty is to support and defend the Constitution. As Jeff Powell and others have said, one (unwritten) constitutional principle is that political change is never to be carried out through direct exercise of violence (though any realistic view of constitutional change has to acknowledge that violence often lies in the background of such change). The difficulty, though, is that another (partly written) constitutional principle is that the military is ultimately under civilian control.

The taken-for-granted assumption about Trump and the attempted coup is that military leaders would have ignored/defied a direct order from the (still) commander-in-chief to intervene on his behalf—that is, would have ignored the principle of civilian control of the military in the service of their own understanding of basic constitutional principles (here, the principle about direct force and political change). I have a strong sense that even the most extreme of Trump’s advisers—and so Trump himself—knew this and so didn’t even explore seriously the possibility of issuing such a direct order.

I’m not sure that we “constitutionalists” should be completely comfortable with that (as a general proposition). Consider a scenario suggested to me by my reading of Uwe Wittstock’s terrific book, February 1933. The Proud Boys and similar groups become serious paramilitary organizations carrying out terroristic attacks on liberals on a regular and reasonably large scale. Congress responds by authorizing the president to deploy regular military force to suppress paramilitary organizations. Do we want the Joint Chiefs of Staff to decide whether that statute, or actions taken by the president to suppress right-wing paramilitaries, is consistent with their independent view of what the Constitution permits?

I’ve worked out (for myself) scenarios in which political actors effect a change in the method of choosing the president that eliminates the Electoral College. Suppose there’s an election which candidate A would have won the electoral college but candidate B wins under the revised system, and suppose the Supreme Court holds that the constitutionality of the revised system is a political question. Do “we” want the Joint Chiefs to intervene on candidate A’s behalf?

The problem I’ve sketched is, I think, a version in the non-judicial context of what Alex Bickel called “the moral approval of the lines”—“we” take for granted that following Trump’s orders would have been a bad thing and so aren’t concerned about the (implicit, assumed) disregard of the principle of civilian control of the military. Bickel’s point was that times change, and so do views of what lines should be approved morally. That seems to me true in the context I’m dealing with here as well. (The scare quotes around we are there is signal that Trump's supporters might well give answers different from the ones most readers of this blog would give.)

Bickel was working in the “neutral principles” tradition, and realists/crits have a number of responses applicable to the non-judicial context: carpe diem/sufficient unto the day is the evil thereof; doing the wrong thing now because somebody else might do a different wrong thing in the future is a fool’s game.

As noted, these are tentative thoughts—but I do think that the issues deserve more exploration.

The Supreme Court’s Gay Rights-Religious Liberty Contortions

Andrew Koppelman

Send in the Clowns

David Super

     So with just over six months remaining in the fiscal year, the federal government is finally funded.  And Rep. Marjorie Taylor Greene has filed a motion to oust House Speaker Mike Johnson.  Should we be worried?

     The omnibus appropriations legislation is bad, but that was largely pre-ordained by the bad budget deal President Biden made with then-Speaker Kevin McCarthy to prevent a national default.  Within those constraints, the final deal is about what one might expect. 

     The final appropriations bills – this one and the one enacted earlier this month – are much closer to the bipartisan Senate appropriations bills than to the extreme measures House Republicans proposed, and occasionally managed to pass, through their chamber.  But this is precisely because the Senate wrote its bills to be plausible and the House wrote its bills to gesture to numerous special interests and ideological fringe groups. 

     Far right (and far left) activists doggedly insist that moving their starting position in negotiations farther in their direction will pull the final compromise in that direction, too.  That can be true under some circumstances, but only to a degree.  Past a certain point, a position comes to be seen as unserious and has no impact at all on the negotiations.

Balkinization Symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Rick Hasen's new book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Michael Waldman, Expanding Our Constitutional Imagination

3. Emily Rong Zhang, Give us (a lasting consensus on really protecting) the Right to Vote!

4. Bruce E. Cain, Going Big on Election Reform: A Political Scientist’s Take on Rick Hasen’s Proposed Constitutional Amendment

5. Alex Keyssar, That Little Omission in the Constitution

6. Wilfred U. Codrington III, A [More] Real Right to Vote?

7. Sanford Levinson, Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen's Call For “A Real Right To Vote”

8 .Derek T. Muller, Some skepticism about (and some promise for) a constitutional right to vote

9. Dan Tokaji, Dare to Dream

10. Richard L. Hasen, A Surreal Right to Vote: Responding to the Balkinization Symposium

Who will own DJT?

Joseph Fishkin

Comstockery in the Court and on the Campaign

Guest Blogger

A Surreal Right to Vote: Responding to the Balkinization Symposium

Guest Blogger

Dare to Dream

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2023).

Dan Tokaji

This is my quest to follow that star
No matter how hopeless, no matter how far . . .

And the world will be better for this . . .

“The Impossible Dream,” as sung by Don Quixote in Man of La Mancha

Toward the end of his new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, Rick Hasen addresses the concern that it might seem “quixotic and naïve” (p. 149) to pursue an amendment to the U.S. Constitution adding an affirmative right to vote.  No one can plausibly accuse Hasen of naivete.  The foremost chronicler American election law, he is well aware of both the formidable challenges we face and the herculean difficulties in amending the Constitution.  In one sense, however, A Real Right to Vote is worthy of Quixote (though more like the musical’s version than the novel’s).  It embodies a hopeful idealism about democracy and the possibility for its improvement.   The constitutional amendment Hasen imagines may not be achievable, but the world would be better if we followed his quest.

To his credit, Hasen is clear-eyed and forthright about how hard this would be.  A constitutional amendment generally requires either a convention or two-thirds affirmative vote in both chambers of Congress, followed by ratification in three-quarters of states.   In this era of hyperpolarization, it’s difficult to imagine achieving the consensus across party lines that would be required to clear this bar.  

That said, Hasen accurately diagnoses the maladies of our current election system and prescribes effective remedies.  The problems include state laws that fence out eligible voters, usually people are less affluent and often people of color.  Hasen rightly focuses attention on difficulties in voting that confront many Native American voters, especially those living on reservations (pp. 5, 92-99).  Sadly, the Supreme Court majority elided those difficulties in Brnovich v. DNC (2021).  In that case, the Court upheld Arizona voting rules with a disparate impact on Native American voters, in an opinion that has made it more difficult to challenge similar burdens under the Voting Rights Act.

Some skepticism about (and some promise for) a constitutional right to vote

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Derek T. Muller

The right to vote is a fundamental right, one belonging to the citizens of all free governments. So who could possibly oppose an amendment to the United States Constitution enshrining that right?

I suppose I do, but for what I think are some eminently practical reasons.

Professor Rick Hasen’s A Real Right to Vote opens with some indisputable and important truths about elections in the United States. We have seen a dramatic expansion of enfranchisement in the United States. Much of that is thanks to the political process, from constitutional amendments guaranteeing that the right to vote shall not be denied or abridged on account of race or sex, among other protected characteristics. Congressional legislation, most notably the Voting Rights Act, helped give effect to important constitutional guarantees. And there are perhaps more opportunities and flexibility to vote in the United States in the twenty-first century than ever before.

But there has not been an affirmative right to vote in the Constitution (at least, of the kind Professor Hasen desires to see) for quite some time. So, why now? Three practical reasons stand out.

Agency Problems’ Impact on Budgetary Outcomes

David Super

     Over the past few years, critics on both the Left and the Right have been intensely critical of their respective party leaders for supposed timidity in failing to achieve their fiscal objectives.  These criticisms are not without foundation.  A careful examination of the past few years, however, suggests that although agency problems have real adverse effects, within each political coalition grassroots distrust of leaders has proven much more destructive to the grassroots’ espoused substantive goals. 

     The inescapable conclusion is that each side needs effective ways of dissuading their leaders from putting personal considerations ahead of the group’s substantive objectives, micromanaging negotiations from afar is disastrous.  Even when partisans suspect their leaders have fallen short, failing to support those leaders opens a huge opportunity for the other side.  This post illustrates this point with one actual agency failure and one grassroots revolt from each side of the political chasm. 

     With an evenly divided Senate during President Biden’s first two years in office, and with supposedly moderate Republicans abandoning much pretense of bipartisanship, passing any legislation required the support of every Senate Democrat.  That included the moderate Joe Manchin and the capricious Kyrsten Sinema.  As much as progressive activists might wish otherwise, neither senator shares their values.  Although Arizona has recently elected some fairly liberal candidates, West Virginia is one of the reddest states in the country:  if Joe Manchin were not a moderate, he would not be a senator.

Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen's Call For “A Real Right To Vote”

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Sanford Levinson 

            There is a deep pathos underlying Richard Hasen’s call for A Real Right to Vote:  How a Constitutional Amendment Can Safeguard American Democracy.  Hasen probably knows more about the workings of the American electoral system than any other contemporary academic.  A founding  co-editor of the Election Law Journal, on whose Board he continues to serve, he has published more than 100 articles on various aspects of election law, not to mention a number of books on the topic.  He is frequently, and for good reason, a “go to” source by journalists looking for thoughtful—and often critical—responses to judicial decisions touching on voting.  He recently moved to the U.C.L.A., where he is a professor of law and political science and directs the Safeguarding Democracy Project there.  He is a truly engaged scholar. 

            A frequent theme of his writings, not at all surprisingly, is the inadequacy of the American system of conducting elections.  He is certainly correct.  I would go so far as to say that the United States has the worst electoral system, overall, of any of the countries that we count as “democratic.”  I have chided my friends Pam Karlen, Sam Issacharoff, and Richard Pildes for titling their widely used casebook on election law The Law of Democracy.  For me the title is sadly misleading and, therefore, ideological, inculcating in at least some impressionable students the mistaken view that the United States is a democracy.  (This, of course, is not a new theme of mine.)  One might argue, of course, that it was never designed to be one; thus the old slogan that the United States is a republic and not a democracy.  In any event, those who shared the views of, say, Eldridge Gerry that the nascent United States in 1787 was plagued by an excess of democracy might be pleased with the way things have worked out.  If one compares the United States Constitution with the fifty state constitutions, let alone most modern foreign constitutions, it is easily the least democratic constitution in the mix. 

            We are, of course, headlong into a new election season where the upcoming choices, especially at the presidential level, are accurately described as not only the “most important election of our lifetime,” but also a potential referendum on whether the United States will continue to be recognizable as a purported “democracy” (or “Republican Form of Government”) at all.  Perhaps it is hyperbolic to compare our situation to Weimar Germany in 1933, but it is surely the case that Donald Trump has become the avatar of a basically authoritarian, even fascistic, political party whose members brook no challenges to their exercises of power. 

            So Hasen’s latest book is his latest exercise of warning the American public about the deficiencies of our electoral system and calling on us to engage in reform before it is indeed too late.  He might well be analogized to a modern-day Paul Revere.  We must worry that what we think of as our democratic system is under systematic threat, and we must mobilize to save it.  For these warnings Hasen deserves our repeated gratitude and highest esteem.  He is a good citizen in the highest sense of that term.