NYU Law Forum diagnoses declines in western democracy and proposes reforms
With democracies across the world buffeted by increasing extremism and division, an NYU Law Forum on March 25 focused on the root causes and potential solutions to the woes facing democracy. The event featured as panelists Professor Bob Bauer; Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law; and Richard Pildes, Sudler Family Professor of Constitutional Law. Last year, the three launched the NYU Law Democracy Project, which explores ideas from across the political spectrum for revitalizing democracy. New Yorker contributor Ruth Marcus moderated the discussion.
Watch the NYU Law Forum discussion on “Democratic Governance in an Age of Polarization & Extremism.”
The panel first discussed changes to political norms over the last 50 years, particularly in the United States. Among politicians, Bauer said, there has been an erosion of trust and personal relationships that cross party lines. Issacharoff emphasized that these changes are happening internationally, not just in the US, and he pointed to the breakdown of institutions designed to keep partisanship in check.
“There's not a single democratic country in the world today with a healthy parliament,” Issacharoff said. “And that's a tragedy. That means we have big-time executive power, and we have heightened court confrontation.”
Meanwhile, Pildes noted, politics has taken on a much more existential tone than in previous decades. “[Many people now feel that] if the other side wins, the country will never be the same in some irreversible way [and that] we can't rely on the standard kind of democratic norm of rotation in office [in] the next election,” he said. “When politics becomes existential for many people, it has huge ramifications of all sorts—including a belief that any means [are] justified to obtain power or to retain power.”
Technology and social media algorithms have upended the previously well-guarded world of party politics, Issacharoff argued. “[Technology] has fundamentally disrupted that gatekeeper monopoly that the parties used to have. And so my view is that we are in a moment of transition to a very different kind of politics. It may be plebiscitary. It may mean that the legislative branch collapses over and over, and that we see pure executive governance. But our politics is being reorganized, and technology is a big part of it,” he said.
Social media has also given an outsized role to individual actors when it comes to shaping political views and movements. Pildes shared a story about a German YouTube user whose satirical video about the Christian Democratic party potentially influenced the outcome of German parliamentary elections: “This video was viewed nine million times in the week in the run-up to the European election. Candidates started being asked about it. They didn't know how to respond,” he said. “[The Christian Democratic Union] vote share went down significantly in that week. We don't know for sure if that's why, but that's an extraordinary thing.”
Bauer addressed the overreach of executive power, including presidents’ increasing use of executive orders and institutional personalization to accomplish their goals. He did not blame the situation entirely on elected officials.
“I just want to stress there's a public cultural problem that we have, which is—and we'll see it again in [several] years—the American public elects the president on outlandish expectations in response to outlandish promises of what one person can accomplish, exercising the authority of that office, which necessarily, therefore, expands in accordance with that promise-making spree,” Bauer said.
A deeply divided and ineffective Congress also contributes to voters’ unrealistic hopes for the president, Pildes said. “[Legislative gridlock] can lead them to yearn for strongman figures who will cut through all this dysfunction and actually take on these issues. So it's not just that the expectations are so high,” Pildes said, “it's that when the political process is paralyzed, as it has been largely in the United States now, it's inevitable that you're going to see more power going to the executive and more power going into the courts.”
Issacharoff noted the changing role of courts in addressing politically charged questions. “When you read the [US Supreme Court’s] opinions in the tariff cases or first order cases like that, they're no longer asking whether the system is working properly,” he said. “They’re trying to find their way through where the executive claims unbridled power on the one hand—which the court historically has rejected—but where Congress commands no corresponding authority on its part. So the pressure on the courts is to fill in for this fundamental instability in our political system, and I don't think courts are good at that.”
Marcus, the moderator, asked the panelists to prescribe solutions for the problems they had described. “Here's a scandalous proposal: unlimited contributions to political parties,” Issacharoff said. “The money now goes to shadow institutions,” he explained. “It's the worst system we could possibly have. There has to be a way of fueling things back institutionally so we have partisan politics that is driven toward delivering something. Right now, it's just partisan politics with the purpose of raising money and hopefully prevailing in an election.”
To fix Congress, Pildes proposed new systems for voting, such as Alaska’s model of open primary elections and ranked-choice voting in general elections, a system intended to reduce extremism and polarization. He also suggested that parties should consider new systems of nomination beyond traditional primaries, in order to give voters more of a say in the candidate representing them.
Finally, Bauer suggested that the executive branch could be reformed through new regulations on conflicts of interest and war powers. “The profiteering of this current administration is unlike any in American history,” he said. “It's not a good example to set for other presidents to follow when it has wide-ranging ramifications.”