The danger of one-party rule is becoming clear

In a 1976 letter to a young lawyers’ association, the late Supreme Court Justice William O. Douglas warned of a danger that few truly acknowledge: American democracy is fallible. “As nightfall does not come all at once,” he wrote, “neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged.”

Douglas’s warning could not be more salient today. You know the fable. A frog suddenly thrust into boiling water will jump out. But if it’s put into warm water that’s brought slowly to a boil, the frog won’t notice it is in danger. It gets cooked to death.

{mosads}As Americans await the results of upcoming midterm election, all three branches of the federal government — the president, Congress, and a majority of the U.S. Supreme Court — are currently under Republican control. To date, the Senate has confirmed 26 of President Trump’s appointments to the United States Courts of Appeals — the highest number ever for a president after two years in office. His judicial picks are young, with a median age of 49. Because very few cases make it to the U.S. Supreme Court, and because all federal judges have life tenure, Senate Majority Leader Mitch McConnell’s (R-Ky.) strategy of obstructing President Obama’s judicial nominations in a bid to build a more conservative federal bench has worked. 

The potential result: A multi-generational chokehold on constitutional interpretation and related social and fiscal policy — especially if Democrats fail to win a majority of one or both chambers of Congress next month. 

But so long as the economy is humming along, the counterargument goes, who cares about the vagaries of politics? Many people are likewise unphased that certain public office-holders regularly exhibit shocking behavior — but this point of view is severely short-sighted. One-party rule was not meant to be in America.

People talk loosely about American democracy, but the framers of the Constitution — wary of monarchies — created, more precisely, a republic. Rather than tallying up individual votes on specific issues, elected representatives make policy on voters’ behalf.

The framers opted for a republic because they worried about the inevitable rise of “factions” in America — ideologically motivated subgroups that are inclined to believe misinformation in service of “some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community,” as James Madison aptly put it.

Today, factions are on the rise, with a plethora of “fake news” internet sites — many manufactured by foreign powers seeking to harm American democracy — and “bots,” or robots, that spread lies through computer-generated social media accounts. As a result, a good portion of the American population is being scammed on a daily basis. Couple all of this with the newest “deepfake” technologies — enabling the creation of false but lifelike videos showing political opponents in compromising situations — and the framers’ worry that democracy will be overcome by deception-induced factions becomes very real.

These days, the framers’ answer to factions — thoughtful, measured decision-making by elected representatives with competing political ideologies — is failing. The Trump administration is mired in scandal, yet the Republican-led Congress — frantic about the prospect of being summarily discarded by Trump and his fiercely loyal base — is allergic to oversight and accountability. Bipartisan committees are all-but extinct. As the recent process of confirming Justice Brett M. Kavanaugh showed, Congress’s work has become an all-or-nothing, winner-takes-all exercise — and one party currently holds all the cards. 

Without healthy, honest, fact-based debate, American voters are left to fend off bad information on their own. And there’s no obvious way to do that effectively these days.

The brokenness of our representative system of government is further entrenched by the lack of term limits on members of Congress, as well as the widespread practice of gerrymandering — the carving up of congressional districts in ways that ensure one party’s hold on the electorate. 

This is all very bad for democracy, folks.

Any intellectually honest debate about one-party rule produces one inviolate conclusion: that it’s better for everyone — regardless of political party — to have a functioning system of checks and balances, in which those in power face meaningful pushback from political opponents, and the ultimate power resides with the people. Without accountability, tyranny thrives.

As Douglas quipped, “it is in such twilight that we all must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness.” 

Kim Wehle is a professor at the University of Baltimore School of Law. Wehle is a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book, “How to Read the Constitution – and Why Now,” will in 2019. Follow her on Twitter at @kim_wehle.