The antibodies of democracy (v1.2)

People think and vote as they will. We are free. But when you have an undemocratic force advancing the challenge for democracy is to figure where, when and how to apply a counterbalancing force, so the overall outcome is good for democracy!! Not easy though.

• Letting the forces proponents in the house sink in the quicksand of their own making for all the world to see is one such counterforce. Example is the craziness currently going on in the GOP house. They can't even do a short-term funding bill easily because of these elements. 
• Holding criminal acts accountable is another such counterforce. Example is Trump trials and Jan 6 trials. 
• Holding defamation propagated by media accountable in a court of law is a third counter force. Example is the voting machine trials. 
• Offering an alternative model of governance and politics and promoting it is another counterbalancing force. Example is Joe Biden and Kamala Harris and Nikki Haley. Kamala as the new DEM nominee is confronting Trump, the GOP nominee, like he has never been confronted before. 
• Trump built his personality cult around the notion of being a huge winner. A huge judgement for massive fraud and being separated from a substantial portion of his assets as damages would dent that image a whole lot. 

In our country, tactics and opinions like lies, disinformation, falsely villainize an opponent, exaggeration, innuendos, deflection,  propaganda, defamation, spinning an alternate reality, conspiracy theories, false equivalences, prejudice and bias, ignorance, exaggerations, twisting what an opponent says or take it out of context, faulty reasoning, misdirection, tarring your opponent with precisely what you are guilty of, flawed whataboutism arguments, media echo chambers, stand up a bogeyman to attack even if it doesn't exist, falsely claim persecution or play the victims game, claim powers and accomplishments in the future or a hypothetical scenario that cannot be evaluated, and repeating a lie again and again until people believe it is the truth, are largely up to voters to discern and judge and discard when casting their votes so I have nothing to say about that except to say I am careful to filter these out the best I can. These are all tools in the dark art of deception and often deployed in political and social discourse.    

Corporations are engines whose goal is shareholder value. Doubt there is any egalitarian motives in their actions. This Works very well for the economy. May not work as well for the public good. Fox/Newsmax business model seems to be to trigger outrage and fear to get a grip and expand viewers and includes apparently dabbling in defamation.

Here is a media matters article on fox during the Trump period. You can find your own references that you trust if you prefer. 

 “Destructive propaganda machine”: How current and former staffers have ripped into Fox News | Media Matters for America

Here is a media matters article on Newsmax. You can find your own references that you trust if you prefer. 

 Newsmax’s sordid history of scams, grifts, and cons | Media Matters for America

The counterbalancing force is massive punitive damages for defamation and (much harder to do) some regulation. These should incentivize them to tone down their business strategies. Example is voting machine companies lawsuits. I am not sure it can’t be objectively proven that Fox/Newsmax are not legitimate media and therefore not worthy of protections under law granted to such media. Also, the burden of proof is way too high for defamation against media. It might also be good for example to review section 230 protection under law to social media.  We got to be careful though not to infringe on 1st amendment. That is the tricky part. But that does not mean these approaches should not be tested in court. The first amendment is NOT absolute.

Checks and balances as well as force and counterforce are vital in a democracy. The counterforce is democracies antibodies. The laws and courts and justice systems are a big part of it. Political and organizational leaders and good media fighting back is another big part. But trust in the court and justice system is vital for most effectiveness.  

The judiciary has the ultimate say on laws for elections, campaigns, democracy and rights.  The controversial electoral college system for presidential elections is well established in law and I will not debate that here since it really is under federal/state legislatures to change only. 

To illustrate the importance of courts in interpreting election laws, here are some sample decisions primarily by courts. A lot of pre election actions (and post election actions) are in courts. Up to you to dig if you want to know more for each action below. But the point is courts play a crucial role so trust is crucial. I will however skip discussion of efforts by parties to undermine trust in the electoral system outside the courts. 

1. The Wisconsin supreme court killed Robert Kennedy's attempts to remove himself from the Wisconsin ballot.
2. The US supreme court killed Robert Kennedy's attempt to add himself to the NY ballet. 
3. The US supreme court killed attempt to disqualify 100,000 Arizona voters from the voter rolls. 
4. The Michigan Supreme Court killed Robert Kennedy's attempt to remove himself from the Michigan ballot. 
5. However, courts upheld Robert Kennedy removing himself from the ballot in NC, AZ, and GA. 
6. Courts killed Alabama removing more than 3000 voters from voter rolls.
7. Court killed a host of controversial election rules passed by GA election board. It has been appealed. 
8. The Nebraska governor/legislature killed push to change law to award all of Nebraska’s electoral college votes to the winner. The single Omaha electoral college vote is trending democratic.
9. New set of lawsuits filed in battleground states to challenge legitimacy of overseas votes.
10. Push to add Georgia election board handpicked people to run Fulton County election challenged in court by Fulton county. 

The Department of Justice has conducted itself with high integrity, but the anti-democratic proponents will still throw mud on it. The Attorney General has done as good a job as possible under the circumstances. 

The republicans seem to have very coherent strategies to advance lawsuits of benefit to them and have binding precedents set in their favor by the Supreme Court. The Democrats - not so much. They should perhaps form one. From what I read in the news some republican elements are not shy about even "bribing" Supreme Court justices indirectly. But this is too far. The Supreme Court must adopt a code of conduct. 

If the people lose faith in the Supreme Court that is HUGE for our system of government. My view is the Supreme Court is OK except for possibly two justices (Thomas and Alito). The fact the majority tilts right is not evidence at all of anything broken in that institution. This has happened before in history. But the political process to appoint a Supreme Court justice is broken. What Mitch McConnell did to steal a Supreme Court seat for someone with more conservative views was low. I honestly believe the Supreme Court WILL come up themselves with a code of conduct. It just takes some time. It is in their best self-interest to keep the trust of the people. 

The counterbalancing force here is the trust of the people which ultimately gives the court its legitimacy. If people and co-equal branches don’t see it as legitimate, they or the other coequal branches will ignore its ruling as were ignored in the past in a number of cases. The coequal branches may even trim its powers. Or some states may honor the ruling and some states not, resulting in hyperpolarization. The Supreme Court has no mechanism to enforce its rulings. Only the trust of the people and other co-equal branches that it is equitable holds it in place. 

Trust in Supreme court is eroding for four reasons. 

1. Left wing views that the rulings are not equitable. But that is nothing new. Before there were right wing views that its rulings were not equitable. The more extreme the decision, the more the loss of trust on one side at least. The extreme 1857 Supreme Court Dred Scott decision led to massive polarization and ultimately the civil war. The effects of overturning Roe vs Wade are still coursing through the nation. The Supreme Court have seen the effects and unintended consequences of Balkanizing the country and the political strife and polarization seeded.  Actually, I think the Supreme Court will tack a little closer to the center (at least on democracy and rights issues). steered by Kavanaugh and Roberts and Barrett after the right wing and questioned ruling on Roe vs Wade. I think the Supreme Court will also tread more carefully in overturning decades of precedents on democracy/rights issues. 
2. The ethics scandal related to Thomas and Alioto. I think the Supreme Court will say something soon. (update 11/13/2023: Supreme Court just announced a code of ethics for justices, but it has no enforcement mechanism!)
3. Opaque far reaching decisions from the shadow docket. Need more transparency. 
4. The political process to seat a justice is broken. Needs fixing. 

I think they will tread more carefully on democracy/rights issues. This is happening already. However, on other issues favored by the right like curtailing executive power/administrative state, they may not - witness the 5 recent decisions (one of them is well known as overturning the chevron precedent made 40 years back). But surprisingly they are more open to climate support (recently they let stand EPA rules to cut methane emissions, and EPA rules on power plants to cut emissions). 

The 5 rulings on administrative state are:

1. 22-1008 Corner Post, Inc. v. Board of Governors, FRS (07/01/2024) (supremecourt.gov) (https://www.supremecourt.gov/opinions/23pdf/22-1008new_8n5a.pdf), 
2. 22-451 Loper Bright Enterprises v. Raimondo (06/28/2024) (supremecourt.gov) (https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf), 
3. 23A349 Ohio v. EPA (06/27/2024) (supremecourt.gov) (https://www.supremecourt.gov/opinions/23pdf/23a349new_h3ci.pdf), 
4. 22-859 SEC v. Jarkesy (06/27/2024) (supremecourt.gov) (https://www.supremecourt.gov/opinions/23pdf/22-859new_kjfm.pdf), 
5. 602us1r28_7l48.pdf (supremecourt.gov) (https://www.supremecourt.gov/opinions/23pdf/602us1r28_7l48.pdf)) - NRA v Viego

Here are the example decisions for democracy/rights. 

1. The right wing had a theory (independent state Legislature theory) that the constitution gave the state legislature full control of elections/election law, and it cannot be reviewed by the courts. The Supreme Court threw that argument out.  
2. The Supreme Court also threw out Alabama states argument that redistricting is under the full control of the legislature. Alabama's gerrymandered district lines was deemed as violation of civil rights law. Alabama even tried to defy the Supreme Court ruling by redrawing another gerrymandered line. They got ruled against by the courts again. 
3. The Supreme Court threw out arguments against the abortion pill, which was allowed to be issued without a doctor's visit by FDA. It preserved access to it.
4. It preserved state laws that disallow a domestic abuser from owning a gun which could put the abused under threat. 
5. On presidential immunity, they rightly threw out the argument of absolute immunity for a president.  However, I think the justices went too far in redefining the immunity that the president did possess. While it is vital to protect the institution of the presidency, I think, like Justice Barrett, that the immunity protection was much broader than it needed to be. Checks and balances are also important. The standard the supreme court defined is extremely ambiguous and confusing. Also, they failed to define what exactly is an official act that is a core function of the presidency for which there is immunity, and what is an official act that is not a core function of presidency for which there is at least presumptive immunity, and what is an unofficial act for which there is no immunity. 
6. The supreme court backed away from blocking abortions in emergencies permitted per federal laws in the case of Idaho which banned abortions in its state law.
7. The Supreme Court left in place a Pennsylvania law barring people under 21 from carrying guns. This helps with school shootings. 

There are other factors undermining democracy like influence operations and threat vectors of both domestic and foreign origin but they are beyond the scope of this blog. 

Is the counterforce strong enough to stop the undemocratic force? Who knows.