15 mid

2 Rights without Democracy

IT WAS A MOMENTOUS DAY for the peasants of the Januschau, a re­ mote part of Eastern Prussia. For the first time in their, or their fa­ thers’, or their fathers’ fathers’ lives, they were called upon to vote. For centuries, they had been subjects—virtually possessions—of the Oldenburg family, with no voice and very few rights. Now, they were to partake in the incomprehensibly noble act of ruling them­ selves. As they gathered around the local inn, which had hurriedly been converted into a polling station for the occasion, they saw that the new world retained not a few elements of the old. The land inspec­ tor of the Oldenburg family was handing out sealed envelopes. They contained ballots that had already been marked. Most peasants did as they were told. They cast their first­ ever ballot without knowing who it was they were voting for. One lone rebel dared to open his envelope. He immediately at­ tracted the inspector’s fury. Striking him with a cane, he shouted, in honest indignation: “It’s a secret ballot, you swine!”1

In most places, democracy’s pretense to let the people rule was a little more serious, and the elite’s hold over the electoral pro cess a

54 The Crisis of Liberal Democracy

little more tenuous. Even so, this story from the dawn of democ­ racy encapsulates the basic deal that traditional elites offered to the mass of the people at the inception of our po lit i cal system: “As long as you let us call the shots, we will pretend to let you rule.” It’s a deal that has proven phenomenally successful for two hun­ dred and fifty years. Today, it is getting increasingly dif cult to sus­ tain.

Liberal democracy is all things to all people: a promise to the masses to let them call the shots; a promise to minorities to protect their rights from an oppressive majority; and a promise to economic elites that they will be allowed to keep their riches. It is this chame­ leonic quality that has helped to make liberal democracy uniquely stable. At the most fundamental level, this quality depends on a ten­ sion that is central to the his tory of liberal democracies. The po lit i­ cal systems of countries like Great Britain and the United States were founded not to manifest but to oppose democracy; they have retrospectively been given a democratic halo by the latter­ day claim that they let the people rule. The credibility of that claim depends on what they are compared to. So long as the memory of abso­ lute monarchy was recent, and a more directly democratic system seemed unfeasible, liberal democracies could claim to let the people rule. This held true for the century or so during which democracy enjoyed its unprecedented ideological hegemony. It no longer does. As a result, the democratic myth that has helped to make our insti­ tutions look uniquely legitimate is losing its hold. The undemocratic roots of our supposedly democratic institu­ tions are clearly on display in Great Britain. Parliament was not designed to let the people rule; it was a blood­ soaked compromise between a beleaguered monarch and the upper echelons of the country’s elite. Only when the franchise was gradually expanded over the course of the nineteenth and twentieth centuries did any­

Rights without Democracy 55

body have the idea that this system of government could possibly be thought to resemble a democracy. Even then, the widening of the franchise turned out to transform the system much less funda­ mentally than both the advocates and the opponents of democratic reform had predicted.2

Because it was founded in a more ideologically self­ conscious manner, that same his tory is even more evident in the American case. For the Founding Fathers, the election of representatives, which we have come to regard as the most democratic way to translate popular views into public policy, was a mechanism for keeping the people at bay. Elections were, in the words of James Madison, meant to “re fine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country.”3 That this radically curtailed the de­ gree to which the people could ac tually in flu ence the government was no accident: “The public voice, pronounced by the representa­ tives of the people,” Madison argued, “will be more consonant to the public good than if pronounced by the people themselves, con­ vened for the purpose.”4

In short, the Founding Fathers did not believe a representative republic to be second best; on the contrary, they found it far prefer­ able to the factious horrors of a democracy. As Alexander Hamil­ ton and James Madison made clear in Federalist No. 63, the es­ sence of the American Republic would consist—their emphasis —“in the total exclusion of the people, in their col­ lective capacity, from any share” in the government.5

It was only in the nineteenth century, as the material and po lit i­ cal conditions of American society changed with mass immigra­ tion, westward expansion, civil war, and rapid industrialization, that a set of entrepreneurial thinkers began to dress up an ideologi­ cally self­ conscious republic in the unaccustomed robes of a born­ again democracy. The very same institutions that had once been designed to exclude the people from any share in the government

56 The Crisis of Liberal Democracy

were now commended for facilitating government “of the people, by the people, for the people.”6

But though America increasingly came to be seen as a democ­ racy, reality lagged far behind. Only gradually did the United States make real improvements to its democratic pro cess. With the rati fi­ ca tion of the Fif teenth Amendment in 1870, “race, color, or pre­ vious condition of servitude” could no longer be used to deny citi­ zens the right to vote (though, in practice, they often were).7 The direct election of senators was established by the Seventeenth Amendment in 1912.8 Fi nally, the Nineteenth Amendment, passed in 1920, decreed that “the right of citizens of the United States to vote shall not be denied or abridged on account of sex.”9

These reforms did make American institutions more democratic. But the transformation of the language we use to de scribe the insti­ tutions of American democracy has been much more far­ reaching than the transformation of the institutions themselves. And key to that transformation has been a story about the limits of democratic governance under modern conditions. In ancient Athens, so the story went, the people—or at least those who were regarded as the people, which is to say adult male citizens—could rule directly because there were so few of them, be­ cause the territory of the state was so small, and because so many of them owned slaves who took care of their daily needs.10 This is no longer the case. As John Adams noted, the people “can never act, consult, or reason together, because they cannot march five hundred miles, nor spare the time, nor find a space to meet.”11 Un­ der modern conditions, direct democracy was supposedly impossi­ ble. This realization allowed the democratic writers of the late nine­ teenth century to carry out a peculiar reinvention of American government. While representative institutions had been founded in self­ conscious opposition to the ideal of democracy, they were now rede scribed as the closest instantiation of that ideal possible under modern conditions. Thus, the founding myth of liberal democratic

Rights without Democracy 57

ideology—the improbable fiction that representative government would facilitate the rule of the people—was born. A man who puts new wine into old bottles, warns the Gospel of Luke, is likely to come to grief: “the new wine will burst the bot­ tles, and be spilled, and the bottles shall perish.”12 The opposite proved true for democracy. The rising tide of egalitarian sentiment during the nineteenth century should, by rights, have come into op­ position with a set of avowedly aristocratic institutions. Instead, their fresh packaging gave representative institutions a new lease on life. It pleased the elites who continued to get their way on the most im por tant issues as much as it pleased the egalitarians who came to see it as an instantiation of their aspirations. For a long century, democracy’s founding myth proved to be one of the most powerful ideological forces in the his tory of mankind. It was under its watch, and in the context of the miraculous tran­ substantiation between elite control and popular appeal which it afforded, that democracy conquered half the globe. And though it  had never exactly been correct—it would, all along, have been possible to make more use of popular referenda, or to restrict the ability of representatives to deviate from the will of their con stit u­ ents—it retained suf cient footing in reality to keep a hold over the democratic imagination.

That basis is now crumbling. One reason is that, with the advent of  the inter net, Adams’s worry about the people’s inability to de­ liberate together has come to seem quaint. It may be true that the people cannot march five hundred miles nor find a place to meet. But why should they need to? If the people truly sought to govern themselves, they could easily do so. A virtual agora could replace the physical agora of ancient Athens, allowing ev ery citizen to de­ bate and vote on policy proposals both big and small. I am not suggesting that most citizens of contemporary democra­ cies want to be intimately involved in the pro cess of policy­ making.

58 The Crisis of Liberal Democracy

They don’t. Nor do I believe that deliberation on a virtual agora would turn out to be civil and rational. It wouldn’t. For good rea­ son, the idea of direct democracy has many more adherents in the­ ory than it does in practice. But though today’s citizens are no more inclined to vote and de­ liberate about ev ery obscure law and regulation than were the citi­ zens of the 1960s, or those of the 1830s, they now have a much more instinctive sense that our democratic institutions are highly mediated. To previous generations, it might have seemed natural that the people would rule through parliamentary institutions and elect their representatives by going to a polling station. But to a generation raised on the digital, plebiscitary, and immediate voting of Twitter and Face book, of Big Brother and American Idol, these institutions have come to seem strangely cumbersome. Today’s citizens may not be as invested in the outcome of debates on public policy as they are in who gets voted out of the Big Brother house. They may not even want their in flu ence on the system of government to be as immediate as their vote in the season finale of American Idol. But, for all of that, they have a very clear model for what it feels like to have a real, direct impact. They know that if we wanted to design a system of government that truly allowed the people to rule, it would not look much like representative democ­ racy.

There is another, even more im por tant reason why democracy’s founding myth no longer has the same hold over our imagina­ tion:  over the past de cades, po lit i cal elites have insulated them­ selves from popular views to a remarkable extent. While the system was never set up to let the people rule, it did have im por tant elements of popular par tic i pa tion. Most po lit i cal decisions were made by an elected legislature. And many of these legislators had deep links with their con stit u ents: they came from

Rights without Democracy 59

all parts of the country and had close connections with local asso­ ciations, from churches to trade unions. Legislators were also likely to be deeply imbued with an ideol­ ogy that gave them a sense of purpose. Whether they were Social Democrats who hailed from poor families and saw themselves as advocates for ordinary workers, or Christian Democrats who came from religious families and saw themselves as defenders of tradi­ tion, they had a clear po lit i cal mission—and often anticipated re­ turning to the communities from which they hailed after leaving of ce. Today, this is true for very few professional politicians. The legis­ lature, once the most im por tant po lit i cal organ, has lost much of its power to courts, to bureaucrats, to central banks, and to interna­ tional treaties and or ga ni za tions. Meanwhile, the people who make up the legislature have in many countries become less and less simi­ lar to the people they are meant to represent: nowadays, few of them have strong ties to their local communities and even fewer have a deep commitment to a structuring ideology. As a result, average voters now feel more alienated from poli­

Liberal Democracy

(e.g., Canada)

Undemocratic Liberalism

(e.g., European Union)

Dictatorship (e.g., Russia)

Illiberal Democracy

(e.g., Poland)

Illiberal

U n d e m

o cr

a tic

Rights without Democracy

60 The Crisis of Liberal Democracy

tics than they ever have before. When they look at politicians, they don’t recognize themselves—and when they look at the decisions taken by them, they don’t see their preferences re flected in them. There has never been a time of perfect popular par tic i pa tion. As the founding myth of democracy reminds us, the glass has always been half full. But now, it is in danger of going on empty.

Limits on Electoral Institutions

Over the last de cades, the elected representatives of the people have lost a lot of their power. Since the end of World War II, the com plex ity of the regulatory challenges facing the state has vastly increased: Technology ad­ vanced and economic pro cesses became more intricate. Monetary policy grew to be a core tool for stabilizing the economy. Even more im por tant, some of the most pressing po lit i cal challenges now facing mankind, from climate change to growing inequality, have deeply global roots, and seemingly outstrip the ability of nation states to find an adequate response. Each of these changes has prompted a shift of power away from national parliaments. To deal with the need for regulation in highly technical fields, bureaucratic agencies staffed with subject­ matter experts began to take on a quasi­ legislative role. To set monetary policy and resist po lit i cal pressure to create ar ti fi cial booms in elec­ tion years, more and more central banks became in de pen dent. Fi­ nally, to do ev ery thing from setting rules about trade to negotiat­ ing agreements regarding climate change, an array of international treaties and or ga ni za tions came into being. This loss of power for the people’s representatives is not a result of elite conspiracy. On the contrary, it has occurred gradually, and often imperceptibly, in response to real policy challenges. But the cumulative result has been a creeping erosion of democracy: as

Rights without Democracy 61

more and more areas of public policy have been taken out of popu­ lar contestation, the people’s ability to in flu ence politics has been drastically curtailed.

BUREAUCRATS AS LAWMAKERS

When Great Britain’s Ministry of Administrative Affairs was found to indulge in waste of gargantuan proportions, Sir Humphrey, its most se nior civil servant, was hauled in front of a Select Commit­ tee  of the House of Commons. But instead of showing contrition for the fact that his department had spent a boatful of taxpayers’ money on maintaining an unused roof garden, he tried to deflect the blame. “It was thought that the sale of flowers and vegetable produce might offset the cost,” he ventured. “And did it?” a member of Parliament asked. “No,” he admitted. “You agree the money was wasted?” she asked. “It’s not for me to comment on government policy. You must ask the minister.” “Look, Sir Humphrey. Whatever we ask the minister, he says is an administrative question for you. And whatever we ask you, you say is a policy question for the minister. How do you suggest we find out what’s going on?” “Yes, yes, yes, I do see that there’s a real dilemma here, in that while it is government policy to regard policy as the responsibil­ ity of ministers and administration as the responsibility of of cials, the questions of administrative policy can cause confusion between the policy of administration and the administration of policy, espe­ cially when responsibility for the administration of the policy of administration con flicts or overlaps with responsibility for the ad­ ministration of policy.”

62 The Crisis of Liberal Democracy

“Well that’s a load of meaningless drivel, isn’t it?” the MP asked. “It’s not for me to comment on government policy,” Sir Hum­ phrey replied. “You must ask the minister.” Sir Humphrey and the Ministry of Administrative Affairs are, as you will have guessed, fictional. They are drawn from Yes Minister, a beloved 1980s BBC sitcom that portrayed the daily struggles of a feckless politician trying to get his agenda past a bu reau cracy intent on frustrating his plans and serving its own interests.13

But while Sir Humphrey’s exploits and verbal acrobatics were exaggerated for comedic effect, they contained a sizeable kernel of truth. “Its perceptive portrayal of what goes on in the corridors of power,” Margaret Thatcher raved while in of ce, “has given me hours of pure joy.”14 David Cameron, one of Thatcher’s real­ life successors at 10 Downing Street, echoed the sentiment some three de cades later. Studying politics at Oxford, he had once “had to write an essay on ‘How true to life is Yes, Minister.’ I think I wrote . . . that it wasn’t true to life. I can tell you, as prime minister, it is true to life.”15

Frustrated politicians aren’t the only ones to emphasize the out­ sized role bu reau cracy now plays in the politics of many democra­ cies around the world. On the contrary, a broad field of academic study has found both that it is very hard for politicians to control the bu reau cracy, and that the scope of decisions made by bureau­ cratic agencies has expanded over the past years.

On the simplest account of the state, the people elect legislators who turn the popular will into laws. Bureaucrats then apply those laws to particular cases. They play an im por tant role, yes, but also a subordinate one. Ultimately, their task is to serve the popular will as it is expressed in legislation. In reality, the story has never been quite so simple. In summariz­ ing Max Weber’s account of bu reau cracy, for example, textbooks

Rights without Democracy 63

usually emphasize that civil servants follow “general rules” rather than settling cases “by individual commands given for each case.”16 But Weber realized that a judge or a bureaucrat is not just “an au­ tomaton into which legal documents and fees are stuffed at the top in order that it may spill forth the verdict at the bottom.”17 On the contrary, the pro cess of implementing legislation has always al­ lowed for discretion and creativity: even a meticulously written law leaves questions of detail unanswered, and im por tant bureaucratic procedures unstipulated. As a result, civil servants have played an im por tant po lit i cal role ever since the rise of the modern­ day bu­ reau cracy. They were never quite as subordinate as the simplest models of politics would have us believe.18

And yet the recent growth in the numbers of bureaucrats and the expansion of their role has been striking. Over the course of the twentieth and early twenty­ first centuries, the number of civil ser­ vants has skyrocketed and the scope of their in flu ence has im­ mensely expanded. As a result, the degree to which public policy is determined by the elected representatives of the people has been sig nifi cantly curtailed. The fig ures are striking. In Great Britain, for example, the num­ ber of national bureaucrats has gone from about 100,000 in 1930 to 400,000 in 2015. (Over the same time period, the overall popu­ lation only increased by about a third.)19

While the increase in the size of the bu reau cracy is remarkable, two qualitative changes may be even more im por tant: Government agencies have become increasingly in flu en tial in the design of laws passed by parliaments.20 At the same time, they have increasingly taken on the role of quasi­ legislators, gaining the authority to de­ sign and implement broad rules in key areas like fi nan cial or en­ vironmental regulation. Taken together, these two developments mean that a vast share of the rules to which ordinary citizens are

64 The Crisis of Liberal Democracy

subject are now written, implemented, and sometimes even initi­ ated by unelected of cials. Traditional bureaucratic bodies are charged with implementing legislation drawn up by the legislature, and they are led by a politi­ cian—often a member of Parliament in his or her own right—who has been appointed by the president or prime minister. But in a growing number of policy areas, the job of legislating has been sup­ planted by so­ called “in de pen dent agencies” that can formulate policy on their own and are remarkably free from oversight by ei­ ther the legislature or the elected head of government.21 Once they are founded by the legislature, these boards and commissions are charged with taking “legally dif cult, technically complex, and of­ ten po lit i cally sensitive decisions.” Many of them are given full regulatory authority—in other words, “they can issue regulations, take administrative action to enforce their statutes and regulations, and decide cases through administrative adjudication.”22

In the United States, these in de pen dent agencies include the Fed­ eral Communications Commission (FCC), created in 1934, which regulates radio and television networks and rules on key questions of the digital age like net neutrality;23 the Securities Exchange Com­ mission (SEC), also created in 1934, which is charged with pro­ tecting investors by regulating the operation of banks and other fi nan cial ser vice providers, with maintaining fair markets, and with facilitating cap ital formation;24 the Environmental Protection Agency (EPA), created in 1970, which is empowered to pass reg­ ulation for such broad objectives as maintaining clean water and protecting endangered species;25 and the Consumer Fi nan cial Pro­ tection Bureau (CFPB), created in 2010, which regulates personal fi nan cial ser vices like mortgages and credit cards.26

The range of contentious issues about which these in de pen dent agencies have ruled in the last years testifies to their importance. The FCC has long determined what words are verboten on cable television, making it largely responsible for the peculiar Ameri­ can custom of bleeping curse words in many television programs.27

Rights without Democracy 65

Key to regulating the most im por tant medium of the late twentieth century, the FCC is now shaping the future of the most im por tant medium of the early twenty­ first century: in 2015, it ruled to re­ quire inter net providers to follow “net neutrality” rules designed to ensure equal access to a wide va ri ety of web offerings.28 Similarly, the EPA has been a key player in fights about environmental policy for the past fifty years, from banning the use of DDT to ensuring the quality of public drinking water.29 Over the last years, it has also made itself central to the American policy response to climate change, deeming carbon a pollutant and proposing limits on admis­ sible emissions from new power plants.30 Meanwhile, in the first five years of its existence, the CFPB has proposed a rule to curtail payday lending and required fi nan cial advisors to act in the best interest of investors, eliminating some of the risky practices that led to the 2008 mortgage crisis.31

Far from making decisions about a few blockbuster cases, in de pen­ dent agencies are now responsible for the vast majority of laws, rules, and regulations. In 2007, for example, Congress enacted 138 public laws. In the same year, US federal agencies finalized 2,926 rules.32 And it is simply not clear that voters enjoy any real form of oversight over the rules by which they are bound.33

The United States is not alone. Equivalents to America’s in de pen­ dent agencies have developed in other countries as well. In Britain, for example, there were once over 900 Quasi­ Autonomous Non­ Governmental Or ga ni za tions (QUANGOs), governmental bodies that are funded by taxpayer money yet have little or no demo­ cratic oversight.34 While some QUANGOs, like the Environmental Agency, were performing essential tasks, the rapid increase in their number and the breadth of their tasks worried the public more and more.35 In 2010, Parliament listened to the critics, promising to cut or merge about a third of existing QUANGOs.36 But most QUAN­ GOs survived the cull, and many changes turned out to be cos­

66 The Crisis of Liberal Democracy

metic: “A closer analysis reveals that whilst the government have reduced the number of public bodies, they have got rid of relatively few functions and have instead engaged in . . . ‘bureau­ shufing.’”37

But perhaps the most powerful “in de pen dent agency” in the world is the European Commission. In most countries, the bu reau­ cracy’s power is somewhat limited by the presence of a strong head of government on the one side and the energy of a legislature with real backing from ordinary citizens on the other side. In the Euro­ pean Union, by contrast, broad policy priorities are set at a summit of the heads of government of individual member states that meets only a few times a year. The legislature, meanwhile, is selected in an  electoral contest that sees abysmal turnout and is largely re­ garded by voters as an opportunity to protest against unpopular national governments—in part because the European Parliament’s powers are, in any case, highly restricted. As a result, the European Commission, an or ga ni za tion of career bureaucrats, has histori­ cally been the motor of most of the EU’s activities: it is the commis­ sion that initiates, writes, and implements a lot of EU law.38

Make no mistake: in de pen dent agencies have real accomplish­ ments to their name. By and large, I believe that the decisions of the FCC and the SEC, of the EPA and the CFPB have made the United States a better place. The same is true of the European Commission and a va ri ety of British QUANGOs. And yet, there is a real trade­ off between respect for the popular will and the ability to solve com pli cated policy prob lems. While in de pen dent agencies accom­ plish crucial tasks not easily performed by other institutions, it is dif cult to deny that they take im por tant decisions out of po lit i cal contestation.

CENTRAL BANKS

When I was growing up in Germany in the 1980s and 1990s, some six de cades after hyperin fla tion had eaten away at the value of pa­ per money and the stability of the Weimar Republic, my teachers

Rights without Democracy 67

would recount stories about those years as though they had hap­ pened just a few months before I was born. “My father had some savings,” I remember Frau Limens, my third­ grade teacher, telling us. “He just wanted to keep them in the bank. But ev ery one was telling him he had to find a way to spend the money. It kept losing value. He needed to act as soon as pos­ sible. So, after much consideration, he decided to buy some thing people would always want: sugar. That way, he thought, he could sell the sugar bit by bit, buying bread and clothes for us until the whole chaos was over.” “Did it work?” one of my classmates asked. “Could you buy ev­ ery thing you needed? “Well,” she said, gravely, “he borrowed the neighbor’s oxcart and went to purchase the sugar. It was a large amount of sugar, and it filled the whole cart. A big, white mountain. But it took him longer than he thought to drag the sugar back to our barn. And just as he was beginning to unload the su—” “Oh, oh,” my classmate said. “Just as he was beginning to unload the sugar, it started to rain. In buckets. A few short minutes, and the whole big mountain—all of those precious savings—washed away.” “Whoa,” my classmate said. “Yes, whoa,” my teacher agreed. In one form or another, implicitly or explicitly, such stories al­ ways followed a clear arc from danger to redemption. The whole trouble, Frau Limens told our group of confused nine­ year­ olds, had started because “politicians were making all the decisions about money.” That is why, after the war, “we made the Bundesbank in­ de pen dent. Nowadays, we wouldn’t have that prob lem.”

The real his tory of in fla tion and central bank in de pen dence is a lit­ tle more com pli cated than Frau Limens had led us to believe. Faced with huge debt from World War I and a set of debtors highly deter­

68 The Crisis of Liberal Democracy

mined to extract what they could from the country they had just defeated, the German government was desperate to find ways to acquire foreign currency. Presented with a lot of bad options, it chose a terrible one: printing mountains of money.39

But the po lit i cal lessons the country drew about the resulting hyperin fla tion really were about as blunt as what Frau Limens taught us in the third grade. After World War II, many Germans blamed Hitler’s rise to power on the destabilizing experience of hyperin fla tion, and the destabilizing experience of hyperin fla tion on po lit i cal meddling with the money supply. To avoid a slide back into chaos or even fascism, they concluded, the new Bundesbank would have to be as in de pen dent as possible. This in de pen dence encompassed not only an interdiction on elected politicians inter­ fering with its day­ to­ day operations or making decisions on the appointment of its governors. In stark contrast to other central banks around the world, the Bundesbank also gained the right to determine its own policy objectives, deciding on its own whether to prioritize low in fla tion or low unemployment.40

Germany’s postwar economic success and the great stability of the Deutschmark soon became a core object of national pride. So when European po lit i cal elites decided to embark on the pro cess of monetary union in the course of the 1980s, one of the features on which German leaders insisted was that the European Central Bank (ECB) would have to follow the model of the Bundesbank. That is exactly what eventually came to pass: “The ECB,” ac­ cording to Daniel Gros, “was the Bundesbank 2.0, but even a bit stron ger in terms of its in de pen dence.”41 The whole point of its in­ stitutional design, writes Christopher Alessi, was to ensure that it would be “governed by unelected technocrats who fell outside the purview of po lit i cal accountability.”42

The in flu ence of the Bundesbank goes even further: Over the course of the 1970s and 1980s, economists began to make more far­ reaching arguments for central bank in de pen dence on the Ger­ man model. Since politicians who are up for election at regular in­

Rights without Democracy 69

tervals have a strong incentive to create short­ term booms, leading scholars like Robert Barro and Robert J. Gordon argued, de pen­ dent central banks would boost in fla tion in the short run without sustainably decreasing unemployment in the long run.43 Making central banks in de pen dent would put decisions about interest rates in the hands of people who are insulated from such short­ term in­ centives, and thereby boost long­ term economic performance. And so countries from Great Britain to Japan, and from Moldova to Kenya gave their central bankers a much greater degree of in de pen­ dence. Over the course of the 1990s, Simone Polillo and Mauro Guillén write, 54 countries all around the world “made statutory changes towards greater in de pen dence . . . Only 24 countries with­ out a strongly in de pen dent central bank as of 1989 did not intro­ duce any statutory changes during the 1990s.”44

There is another reason why the greater in de pen dence of central banks around the world matters so much: it is not only that many institutions that were under the effective control of elected legisla­ tors fifty years ago are now ruled by unelected technocrats who are free from po lit i cal accountability. It is also that the importance of decisions taken by these institutions has grown over that same time period. For most of the his tory of liberal democracy, central banks only had limited weapons at their disposal. For much of the nineteenth and early twentieth centuries, the value of most currencies was tied to its gold reserves. In the Bretton Woods system, which came to  dominate in the wake of World War II, exchange rates were largely fixed; on the relatively rare occasions when they had to be  adjusted, the decision was usually taken by elected politicians rather than unelected bureaucrats. During this period, Polillo and Guillén write, “fi nance ministers became the key decision­ makers, while central banks . . . played a relatively limited and quiet role in economic and fi nan cial policymaking.”45

70 The Crisis of Liberal Democracy

Only since the demise of Bretton Woods in the early 1970s did central banks gain the leeway to set interest rates in keeping with their policy objectives. Long consigned to keeping a system de­ signed by elected politicians stable, they are now the key institu­ tions deciding, for example, whether it is more im por tant for a country to minimize in fla tion or unemployment.46 As a result, some of the most im por tant economic decisions facing countries around the world are now taken by technocrats.

JUDICIAL REVIEW

In the 250 years since the Founding Fathers set up a republic that sought to exclude the people, in their collective capacity, from any share in the government, the hard­ won introduction of universal suffrage was the second biggest institutional innovation. The big­ gest was entrusting nine unelected judges with the power to over­ rule the will of the people whenever it came into con flict with the preservation of individual rights. This power has, historically, been used for some extraordinarily noble purposes. At times when most Americans were unwilling to grant the rights they claimed for themselves to a horrifically mis­ treated minority, it was the Supreme Court that stepped in. The end of segregation was brought about not by the will of the Ameri­ can people but rather by an institution that had the constitutional power to override it. When we think of the civil rights movement, we tend to think of the brave acts of ordinary citizens, from Rosa Parks to James Hood. And yet its his tory was just as much one of liberal decisions won against the resistance of electoral majorities.47

There can be no doubt that many of the most im por tant ad­ vances for the rights of US citizens were handed down from a judi­ cial bench. There can also be no doubt that nine unelected judges hold a vast amount of power—and that there is at least a reason­ able case that they have become more willing to exercise that power over the course of the twentieth century.48

Rights without Democracy 71

Since 1954, the Supreme Court has ended segregation in schools and universities.49 It has ended and then reintroduced the death penalty.50 It has legalized abortion.51 It has limited censorship on television and radio.52 It has decriminalized ho mo sex u al ity and in­ stituted same­ sex marriage.53 It has struck down campaign fi nance regulations and gun control mea sures.54 It has determined whether millions of people would get health insurance55 and whether mil­ lions of “Dreamers” needed to live in fear of being deported.56

That’s why the American right has long railed against activist judges while the American left, which enjoyed a majority on the court for much of the postwar era, has long claimed that judges were merely doing their job. And it’s also why these roles are slowly reversing now that the court is starting to lean right.57 But though the question of whether the rule of the court has expanded over the past de cades may be fraught with controversy, the best studies of the Supreme Court do suggest that its role is far larger than it was when the Constitution was written—and that it remains insulated from the will of the people in im por tant ways.58

In most parts of the world, the rise of judicial review over the course of the past century is even more clear­ cut than it is in Amer­ ica. According to my research, for example, only eight of the twenty­ two countries that could be clas si fied as democracies in 1930 had judicial review. Today, twenty­ one of them do.59

The global rise of constitutional review is even more striking when we widen the sample to include both new democracies and autocracies. According to a study by Tom Ginsburg and Mila Ver­ steeg, 38 percent of countries guaranteed the power of judicial re­ view to a constitutional court in 1951; by 2011, 83 percent of them did.60

Even in some of the countries where the constitution does not ex­ plicitly grant the power of judicial review to the courts, they have, in effect, started to play this role. The United Kingdom is Exhibit A.

72 The Crisis of Liberal Democracy

Britain has long prided itself in a system of parliamentary sover­ eignty that gave the Houses of Parliament plenipotentiary powers. For many centuries, the country did not entrust its judges with the power of judicial review.61 This began to change after the United Kingdom joined the European Union in 1973.62 UK courts could now review acts of Parliament under EU law.63 Judicial review was further expanded after Britain incorporated the European Conven­ tion of Human Rights into domestic law.64 The attenuation of the doctrine of parliamentary sovereignty was completed in name as well as in practice in 2005, when the highest court in the land was given an appellation that evokes its new importance. While the country’s most se nior judges had once been part of the House of Lords, they were now reconstituted as a separate body: the Su­ preme Court of the United Kingdom.65

A similar story could be told in other countries that had once limited the power of judicial review. In Canada, the 1982 Char­ ter  of Rights and Freedoms turned parliamentary into constitu­ tional sovereignty.66 In France, the powers of the Conseil d’État have gradually expanded, with its judges now making roughly 10,000 rulings ev ery year.67 Even in the Netherlands, where Article 120 of the Constitution makes clear that no court can review the constitutionality of parliamentary acts, the introduction of interna­ tional human rights treaties has, de facto, expanded the powers of unelected judges.68 As a result, the only holdout among the many democracies that did not let judges overrule parliaments in 1930 has now, to all intents and purposes, introduced a soft form of judi­ cial review.

Legal theorists like Jeremy Waldron have made some forceful argu­ ments against judicial review. The in flu ence of the courts is meant to act as a safeguard against the tyranny of the majority. But, Wal­ dron argues, it is far from obvious that countries that have histori­ cally eschewed a system of judicial review, like the United King­

Rights without Democracy 73

dom, have a worse rec ord on protecting individual rights than countries that have always had a strong form of judicial review, like the United States.69 Similarly, courts are meant to be better at dealing with complex legal or philosophical questions, like abor­ tion, for which ordinary people and their representatives may not be properly trained. But Waldron finds that parliamentary debates about issues like abortion have ac tually been carried out at a very high level in countries without judicial review—and that the result­ ing po lit i cal compromises have helped to establish a wide social consensus on morally fraught questions that still eludes countries with judicial review.70

Though Waldron’s points are powerful, I ultimately agree with the long list of eminent theorists, from Hans Kelsen to Ronald Dworkin, who have defended the legitimacy of judicial review. In moments of crisis, judges who are insulated from the popular will are more likely to protect vulnerable minorities and to stand up to power grabs by strongman leaders. Judicial review is a necessary safeguard.71

And yet, our support for judicial review should not blind us to its nature: the simple truth is that it takes many issues on which ordi­ nary people have strong opinions out of po lit i cal contestation.72 It’s perfectly reasonable to think that, say, protecting sexual and reli­ gious minorities from discrimination is so im por tant that it justifies overriding the will of the people. But if that is the case, intellectual honesty demands that we acknowledge the nature of the institution to which we are so committed: though it often sets itself against the popular will, we might then say, judicial review is jus ti fied by the fact that it protects individual rights and the rule of law.

INTERNATIONAL TREATIES AND OR GA NI ZA TIONS

Since the end of World War II, countries have become more and more enmeshed with each other along a va ri ety of dimensions: po­ lit i cal, cultural, military, and of course economic.

74 The Crisis of Liberal Democracy

Back in 1960, only about a quarter of the world’s GDP was bound up in foreign trade. By the turn of the millennium, over half was generated from cross­ border trade—and the share has only kept on rising since. The amount of foreign direct investment has increased even more dramatically: over the course of the last two de cades of the twentieth century, foreign investment tripled, from one in ten dollars to over one in three dollars.73

It is only natural that the greater degree of global interconnect­ edness has led to a much larger number of international treaties and or ga ni za tions. How can nation states remain fully in control of economic policy when over half of mankind’s economic activity flows across borders? And what point could there be in making en­ vironmental regulations without any pro cess of international coor­ dination when carbon emissions in one country can raise tempera­ tures across the globe? These are questions that staunch opponents of free trade, of trea­ ties between states, and of international or ga ni za tions don’t take seriously enough. While they like to portray the rise of new modes of “international governance” as an elite conspiracy of corpora­ tions and technocrats, it is in fact a gradual response to underlying trends that nobody can wish away. As valid as the reasons for the rise of international treaties and or ga ni za tions are, though, it would be dishonest to pretend that they don’t have an impact on the nature of domestic politics. As the range of po lit i cal decisions that are precluded by international trea­ ties or delegated to international bodies has risen, so too has the range of policy areas effectively taken out of democratic contesta­ tion.

The point of an international agreement is to coordinate the ac­ tions of different countries in order to set stable expectations and make them better able to achieve a common objective. So the loss

Rights without Democracy 75

of national control involved in becoming subject to international agreements is not a bug of the system of international agreements; it is its primary feature. This is true of treaties stipulating the emis­ sion of noxious gases as much as it is true of treaties establishing international or ga ni za tions like the World Bank or the United Na­ tions. Free trade treaties are a strong case in point. To enter such an agreement, a state needs to abdicate (some of) its ability to make in de pen dent decisions on things like import tariffs: if it could rein­ troduce tariffs at any point, the free trade agreement would have failed in setting the stable expectations that account for a big part of its economic bene fits. Free trade offers big bene fits to all countries that enjoy it. Even so, the inability to charge these kinds of tariffs restricts the freedom of maneuver for participating states in im por tant ways. In the past, many developing countries managed to foster high­ level industries by temporarily shielding them from competition. The United States did this for steel in the nineteenth century as surely as Japan and Taiwan did this for cars and electronics in the twentieth century.74 Today, developing countries that are subject to the World Trade Or ga ni za tion, or to even more onerous regional trade agreements, are effectively barred from employing the same industrial strategy to grow their economy.75

This loss of control is compounded by the fact that modern­ day trade deals go well beyond reducing or abolishing tariffs. Prohibi­ tions on protecting domestic industries from foreign takeover make it more dif cult for governments to slow the job loss from glob al i­ za tion or to cushion the social effect of these transformations. The attempt to eliminate hidden barriers to trade, including diverging regulatory and technical standards, makes it more dif cult for na­ tional governments to pass new environmental protections. More ambitious agreements, like the North American Free Trade Agree­ ment (NAFTA), also include provisions for short­ term work visas,

76 The Crisis of Liberal Democracy

lessening a country’s control over the inflow of immigrants.76 Fi­ nally, the rise of “investor­ state dispute settlements” gives corpora­ tions far­ reaching powers to demand compensation for local regu­ lations that might dampen their profits in front of international tribunals.77

Many of these effects are most pronounced in the European Union. To create a truly “single market,” the EU has introduced far­ reaching limitations on the autonomy of its member states.78 For example, their ability to tax different forms of alcohol at dif­ ferential rates is limited because of fears that, say, Belgium, which produces a lot of beer, might choose to impose a heavy tax on wine while Italy, which produces a lot of wine, might impose a heavy tax on beer.79 Technical and environmental standards are frequently set by Brussels rather than by national cap itals, put ting sig nifi cant powers in the hands of the European Commission.80 And fi nally, the free movement of people gives European citizens far­ reaching rights to access the territory of other member states81—but limits the ability of member states to decide who should get to live in their territory.82

Free trade treaties constitute only a small subset of the interna­ tional agreements and or ga ni za tions that now structure the inter­ national system. In fact, the United States is a party to so many agreements that the State Department has to prepare a “List of Treaties and Other International Agreements of the United States” as a stand­ alone publication—one that runs to some 568 pages.83

Just as free trade deals have real economic bene fits, so too many of these treaties help to keep the world secure or make a huge contribution in dealing with global prob lems like climate change. Though I—like just about ev ery citizen—can hardly claim to have a detailed knowledge of most of these treaties, I do not doubt that

Rights without Democracy 77

they were concluded for good reason, and continue to play an im­ por tant role. But that, for our present purposes, is not the point. The case for taking so many policy decisions out of democratic contestation may be perfectly sound. But even if it is, this does not change the fact that the people no longer have a real say in all these policy ar­ eas. In other words, undemocratic liberalism may have great bene­ fits—but that doesn’t give us a good reason to blind ourselves to its nature.

Co- optation of Electoral Institutions

One reason why our system has become less democratic—why, in my terms, it has become less effective at translating popular views into public policies—is that many im por tant topics have been taken out of po lit i cal contestation over the past de cades. Legislatures, so this story goes, are hamstrung in their ability to enact the will of the people due to the growing power of bureaucrats, the large role played by central banks, the rise of judicial review, and the greater importance of international treaties and or ga ni za tions. But there is also another big piece of the undemocratic puzzle: Even in areas where parliaments retain real power, they do a bad job of translat­ ing the views of the people into public policy. Elected by the people to represent their views, legislators have become increasingly insu­ lated from the popular will. As Martin Gilens and Benjamin Page explain in a recent paper, there have long been four broad theories that sought to answer a question that is as simple as it is fundamental: “Who rules?”84 On one theory, the views of average people are decisive. On another theory, it is the views of the economic elite. A third theory holds that it is mass­ based interest groups like the American Association of Retired Persons (AARP). Fi nally, a fourth predicts that narrow

78 The Crisis of Liberal Democracy

interest groups like the National Potato Council carry the day. Gilens and Page put those theories to the test by tracking how well the policy preferences of these respective groups predicted how Congress would act on 1,779 policy issues over a span of two de­ cades. The results are shocking. Economic elites and narrow interest groups were very in flu en tial. Mass­ based interest groups had little effect on public policy. The views of ordinary citizens had virtually no in de pen dent impact at all. “When the preferences of economic elites and the stands of or ga nized interest groups are controlled for, the preferences of the average American appear to have only a mi­ nuscule, near­ zero, statistically non­ sig nifi cant impact upon public policy.”85 The upshot seems inescapable. “In the United States,” Gilens and Page conclude, “the majority does not rule.”86

To understand why ordinary people seem to have so little in flu­ ence on the legislative branch even in areas where parliaments still call the shots, we need to understand some of the roots of their dispossession. What can explain why the views of ordinary people now have “near­ zero” in flu ence on how their elected representa­ tives act?

MONEY

Campaigning for reelection, Rupert Allason, a Conservative mem­ ber of Parliament, went out to the pub in his con stit u en cy in Tor­ bay. Although Allason had a reputation as a hard­ living playboy, a penchant for Porsches, and a personal fortune reported to be in the millions, he neglected to tip the waitress. She was, local papers later reported, so furious that she decided to change her vote from the Conservatives to the Liberal Democrats—and to persuade her co­ workers to do the same.87

Going into election night, Allason had high hopes. Five years be­ fore, he had beaten his opponent by a comfortable margin of 5,787

Rights without Democracy 79

votes. But when the results started to come in, they showed an un­ expectedly close race. In the end, after three recounts, Adrian Sand­ ers, Allason’s main rival, won by twelve votes—one of the most narrow victories in the his tory of British parliamentary elections. If local press reports are to be believed, the case of the missing tip made all the difference. And if a recent study by Andrew C. Eggers and Jens Hainmueller is to be believed, Allason’s stinginess did not just cost him his seat in Parliament; it may also have reduced his long­ term earnings prospects.88

About ten years ago, Eggers and Hainmueller set out to study whether politicians stood to gain fi nan cially from being elected to Parliament. But they ran into an obvious prob lem: All kinds of fac­ tors—charm, skill, prior wealth, and so on—might determine both whether candidates would win and whether they would be likely to be appointed to lucrative positions outside Parliament. To control for this confounding factor, Eggers and Hainmueller focused on those “pseudo­ random” cases in which elections were so close that it seemed to be a matter of sheer luck who won and who lost. The data they found were striking: “Conservative MPs,” they concluded, “died almost twice as wealthy as similar Conservatives who unsuc­ cessfully ran for Parliament.”89

A big part of the reason for this worrying conclusion seems to be that candidates who had narrowly won election were more than three times as likely to serve on the board of companies listed on the London Stock Exchange than candidates who had narrowly lost election. The overall conclusion thus seems to follow naturally: “of ce was lucrative for Conservative politicians because it en­ dowed them with po lit i cal connections and knowledge that they could put to personal fi nan cial advantage.”90

When we think about the corrosive effect of money on the po lit i­ cal  system, it is easy to focus on the most clear­ cut and extreme

80 The Crisis of Liberal Democracy

cases. We picture men carrying suitcases full of money, or perhaps a brown envelope furtively exchanged in a busy public square. In  many fledgling democracies around the world, these kinds of straight­ up bribes are indeed a huge prob lem. In countries like In­ dia or Iraq, a cash payment is required to do ev ery thing from get­ ting a driving license to obtaining a building permit. Even in consolidated democracies like Germany or the United States, there are cases of this kind of explicit exchange of an agreed sum of money for a particular po lit i cal favor—what legal scholars call “quid pro quo” corruption. That is what Illinois governor Rod Blagojevich may have been hoping to obtain back in 2009, when Barack Obama’s victory allowed him to fill the Senate seat the president­ elect was about to vacate: “A fucking valuable thing,” Blagojevich called it in one wiretapped phone call. “I’ve got this thing and it’s fucking golden,” he added in another call. “I’m just not giving it up for fucking nothing.”91

Blagojevich ultimately went to prison for his shenanigans. In this, he was not alone. In the dozen years between 1990 and 2002, about 10,000 US of cials were convicted for corrupt practices rang­ ing from the blatant to the ridiculous.92

Even so, the role of money in the po lit i cal system tends to be more subtle in consolidated democracies. Instead of extracting rents

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Rights without Democracy 81

from the po lit i cal system through explicit bribes, individuals and corporations mostly try to sway po lit i cal decisions in their favor through po lit i cal donations, lobbying, or the prospect of a lucra­ tive job. Campaign contributions are an especially large prob lem in coun­ tries, like the United States, in which existing limits on po lit i cal spending are extremely weak. As a result, total spending on Ameri­ can elections has continually grown in the last de cades, and now stands at unprecedented levels. In 2012, for example, “reported federal campaign spending .  .  . reached almost $6.3 billion,” or over twice as much as the total annual GDP of an African country like Burundi.93

Some politicians are perfectly happy with this system: so long as they maintain friendly relations with big donors, it is easy for them to build up a big fi nan cial advantage over would­ be challengers; if they tried and failed to change the rules about campaign fi nance, they might face the wrath of the donor class; and if they did some­ how manage to change the rules, they would enter a new, uncertain world. Better just to keep things the way they are . . . But just as many politicians feel trapped in a system they find it impossible to change. And so the po lit i cal will to reform the system has, at rare moments, materialized. Back in 2002, for example, two

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82 The Crisis of Liberal Democracy

Senate heavyweights worried by the perennially growing in flu ence of money in politics worked across the aisle to change how elec­ tions are fought. John McCain and Russ Feingold co­ sponsored a bill to limit the pernicious in flu ence of “soft money”—funds do­ nated to parties to support po lit i cal issues rather than spe cific can­ didates. To general surprise, it passed. For the first time in de cades, it seemed as though the role of money in politics might go some­ where other than up.94

The legislation, widely known as McCain­ Feingold, stayed on the books for about seven years. Then a conservative lobbying group by the name of Citizens United mounted a legal challenge. It had produced a documentary—in reality, little more than an ex­ tended attack ad—on Hillary Clinton. Under the new rules, it was prohibited from paying to air the documentary in the thirty days running up to a primary or the sixty days running up to a general election. This, it claimed, violated its right to free speech, as guar­ anteed by the First Amendment. Find ing that corporations—as well as other associations, like in­ terest groups or trade unions—have many of the same rights as natural people, a majority of the justices on the Supreme Court agreed. The McCain­ Feingold Act, Justice Kennedy wrote, violated the free speech rights of Citizens United. Corporations and po lit i cal action groups would be allowed to spend as much money as they choose on supporting one candidate or attacking another. Though some limits on direct contributions to candidates remain in place, the court’s decision essentially opened the floodgates to private in­ terests.95

Hundreds of books and articles have been written about Citizens United and the corrosive effect it is (or is not) having on American democracy. But one of the im por tant aspects of the decision that has mostly gone unnoticed is that different forms of undemocratic liberalism are reinforcing each other in this case: because the ex­ panded role of judicial review takes im por tant decisions out of the

Rights without Democracy 83

po lit i cal pro cess, a bench of unelected judges could overturn a law passed by the representatives of the people. The effect of this ruling, in turn, has been to make it more dif cult for legislators to re flect the views of the people even in those parts of the po lit i cal pro cess where they retain real power.96

The evolution of lobbying has, in many ways, been even more dra­ matic than the growth in campaign contributions. The Founding Fathers, Zephyr Teachout argues in Corruption in America, were extremely worried about the myriad ways in which people might seek to sway po lit i cal decisions. Whereas European countries allowed their ambassadors to keep extravagant gifts from monarchs, which they thought a sign of respect, Congress was deeply concerned when Benjamin Franklin was presented a lav­ ish snuff box by Louis XVI. It is perhaps understandable that the Founding Fathers regarded with some suspicion a gift encrusted with 408 diamonds, and depicting a foreign potentate “with pow­ dered hair, and red cheeks, wearing white lace around his throat, two gold chains on his shoulders, and a blue robe with gold fleurs­ de­ lis.”97 But as Teachout shows, their concern extended even to forms of po lit i cal activity that might look harmless to modern eyes. In one especially striking example, an old, sick man was owed money by the federal government. Unable to retrieve it himself, he hired a lawyer to act on his behalf. When his son later refused to pay the lawyer the agreed fee, a court refused to compel him to pay his dues. Though the original purpose of the arrangement hardly seems illicit, the judges were concerned about providing a legal ba­ sis for the activities of lobbyists:

If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promo­

84 The Crisis of Liberal Democracy

tion of their private interests, the moral sense of ev ery right­ minded man would instinctively denounce the employer and employed as steeped in corruption.98

Extreme as this case may seem, Teachout argues, it was far from idiosyncratic. For much of the his tory of the United States, the fed­ eral government banned many forms of lobbying. In Georgia, the state constitution was, at one time, amended to read that “lobbying is declared to be a crime.”99 In California, it was a felony.100

Over the course of the twentieth century, lobbying gradually lost the stench of the illicit. But even once the activity became normal­ ized, businesses remained more reluctant to exert their in flu ence— and the playing field remained far more equal than it is now. As late as the 1960s, Lee Drutman shows in The Business of America Is Lobbying, labor unions were much more powerful and public interest groups had a much bigger voice than they do now. Major corporations did not lobby directly on their own behalf. “As ev ery business executive knows,” the future Supreme Court justice Lewis F. Powell Jr. wrote at the time, “few elements of American society today have as little in flu ence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of ‘lob­ byist’ for the business point of view before Con gres sional commit­ tees.”101

All of this quickly began to change in the early 1970s. Deter­ mined to fight the high costs of rising wages and complying with new legislation, a group of prominent CEOs banded together to expand their in flu ence on Capitol Hill. At first, these activities were mostly defensive: the goal was to stop legislation that might harm their interests. But as the po lit i cal in flu ence of big corporations ex­ panded and their profits soared, a new class of professional lob­ byists managed to convince corporations that their activity “was

Rights without Democracy 85

not just about keeping the government far away—it could also be about drawing government close.”102

Today, the attempt to in flu ence legislation is a core part of what lobbyists do. When Drutman asked lobbyists about their goals, he found that “the top reason was ‘to protect the company against changes in government policy.’” But another reason was nearly as im por tant: the “‘need to improve ability to compete by seeking fa­ vorable changes in government policy.’”103

It is hardly surprising, then, that lobbying expenditures in the United States have continued to increase at a rapid pace. In the first fif teen years of the twenty­ first century, for example, they doubled, growing from a little under $1.6 billion to a little over $3.2 bil­ lion.104

The result has been not only to flush a lot more money into the system but also to distort the playing field. Unlike in the past, cor­ porations now hold a huge advantage. “For ev ery dollar spent on lobbying by labor unions and public­ interest groups,” Drutman

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86 The Crisis of Liberal Democracy

shows, “large corporations and their associations now spend $34. Of the 100 or ga ni za tions that spend the most on lobbying, 95 con­ sistently represent business.”105

If anything, the explosion of the lobbying industry has been even more remarkable in Europe. In the 1970s, for example, there were fewer than one thousand registered lobbyists in Brussels. Today, more than thirty thousand are tasked with in flu enc ing EU poli­ cies.106

When Hillary Clinton was asked why she had attended Donald Trump’s wedding back in 2005, her response was hardly convinc­ ing: “I thought it’d be fun,” she said.107

Donald Trump offered a rather more blunt reason for inviting the Clintons: “As a con trib u tor, I demanded that they be there— they had no choice and that’s what’s wrong with our country. Our country is run by and for donors, special interests and lobbyists, and that is not a good formula for our country’s success.”108

Trump’s spectacular unwillingness to disclose his fi nances, or to take real steps to limit his many con flicts of interest, drives home what should have been obvious all along: his complaints about lob­ bying were insincere. And yet, his de scrip tion of the basic reality of the American po lit i cal system contains a large grain of truth. While it is an exaggeration to say that the country is run “by and for do­ nors, special interests and lobbyists,” the running of the country certainly requires a lot of complaisance with just those groups. The fact that people may gain “in flu ence over or access to elected of cials” through donations or through lobbying, Justice Kennedy wrote in Citizens United, “does not mean that these of cials are corrupt.”109 This is true. It does not constitute bribery for lobbyists to write legislation on behalf of elected representatives, and for the companies they represent to send those same representatives lavish campaign donations a few weeks later. Nor does it constitute brib­

Rights without Democracy 87

ery for British MPs to champion the interests of big public compa­ nies when they are in of ce, and to take a seat on their boards after they retire from Parliament. So long as their po lit i cal survival de­ pends on playing along with these practices, it may not even make sense to blame politicians for doing what the system requires. And yet, these accepted practices may cumulatively add up to what Lawrence Lessig has called “de pen dence corruption”:110 a system that “arises as a result of a gift economy based on the giving and receiving of po lit i cal favors [and] operates at the level of the institu­ tion.”111

In other words, Kennedy is right to point out that there is an im­ por tant legal—and probably even moral—distinction between de­ pen dence corruption and cases of ac tual bribery. But from the point of view of undemocratic liberalism, they each have a rather similar effect. Thanks to the expenditure of private money, the powerful profit and public policy is redirected. Tasked with translating popu­ lar views into public policy, legislators are, to a disheartening de­ gree, captured by special interests.

MILIEU

The people we are around day in, day out help to shape our tastes, our values and our assumptions. So one of the most insidious ways in which the in flu ence of lobbying and campaign fi nance distorts the po lit i cal system is, quite simply, in helping to shape the world­ view of politicians who have to spend a large chunk of their time interacting with donors and lobbyists. In many cases, they don’t have to compromise their ideals when the time comes to vote on a bill of concern to their major donors; because they spend so much of their lives around the representatives of special interest groups, they have, more likely than not, long ago come to share a lot of their views.112

While nobody has yet studied the magnitude of this effect in a

88 The Crisis of Liberal Democracy

systematic manner, it is reasonable to assume that it is quite large. After all, the amount of time politicians are now forced to spend on fundraising is itself considerable. Between 1986 and 2012, the average cost of a Senate race increased 62 percent; the average cost of a con gres sional seat increased a whopping 344 percent. So it makes sense that, according to anecdotal evidence, members of Congress now spend up to half of their working time on fundrais­ ing activities.113

The transformation is equally stark at the highest levels. Jimmy Carter and Ronald Reagan went to a fundraiser about once ev ery twenty days during their first terms in of ce. Unlike Reagan, Barack Obama reportedly hated fundraisers. Even so, he remained captive to the exigencies of his po lit i cal age—and or ga nized a presidential fundraiser about once ev ery five days.114

The imperative to raise money is one reason why politicians spend much of their time in a peer group that is very unlike the people they are supposed to represent. But this is just the tip of the iceberg. The truth is that, well before they reach of ce, most lawmakers have already been socialized into a cultural, educational, and fi nan­ cial elite that sets them apart from average Americans. In the general US population, fewer than one in two hundred people hold a law degree. In the House of Representatives, it is over one in three. In the Senate, it is over one in two. Statistics on wealth are just as striking. The median net worth of an average American is just under $45,000.115 The median net worth of an average mem­ ber of Congress, by contrast, is over ten times as high, and that of senators higher still.116

To be sure, the Founding Fathers always envisaged lawmakers as an elite class. The fact that Americans choose highly educated— or fi nan cially successful—members of the community to represent them need not be a prob lem. But what surely is a prob lem is that, by

Rights without Democracy 89

just about ev ery metric from ge og ra phy to life experience, this elite is now thoroughly disconnected from the rest of the population. A few generations ago, most members of Congress had deep roots in a particular part of the country. While they may have been local notables, they were notables with a strong sense of place. Democrats had frequently risen through the ranks of local trade unions or schoolhouses. Republicans might have been local busi­ ness or community leaders. Born, raised, and frequently educated in their state, most of them expected to return to their home once they retired from Congress. Today, by contrast, the connection average members of Congress have to their districts is, according to the limited research that has been undertaken on this question, markedly more tenuous. Fewer, it seems, were born and raised in the part of the country they repre­ sent. And even if they do hail from their district, it is no longer the center of their lives in a comparable way. Often educated at elite colleges on the East or West Coast, many of them spend their early working lives in the nation’s great metropolitan centers. After stints in business, fi nance, the law, or on Capitol Hill, it is, in many cases, out of po lit i cal ambition that they move back to their districts. And though many of them retain some kind of home in their district af­ ter leaving Congress, few make it the true center of their lives upon retirement: once they leave of ce, they are more likely than their predecessors to pursue lucrative opportunities in the great metro­ politan centers.117

Many Europeans like to think that their countries do a lot better on all of these metrics than the United States. Whereas American de­ mocracy has long ago been captured by a hypercap italist mindset and the corporations it emboldens, they like to claim, things are much better on the continent. There is some thing to this claim. In most European countries,

90 The Crisis of Liberal Democracy

limits on campaign contributions are more stringent.118 While lob­ bying has skyrocketed, po lit i cal expenditures remain much lower.119 Most im por tantly, European so ci e ties remain far more equal; in part as a result, the social and economic gulf between legislators and ordinary people is less stark. And yet, the estrangement between voters and legislators is per­ vasive in Europe as well. While restrictions on campaign fi nance are real, for example, the advantage this affords to incumbents who are willing to play nice with special interests may be just as big— and even more dif cult to track. For one, the dif culty of raising money legally also makes it much more tempting for politicians to raise campaign contribu­ tions illegally. Helmut Kohl, Germany’s longtime chancellor, is per­ haps the most famous example: While he was leader of the Chris­ tian Democrats, the party developed a sprawling system of secret campaign donations that may well have swayed government poli­ cies on im por tant issues like weapons exports.120 Illegal campaign donations are an even bigger prob lem in France, where dozens of top politicians have been investigated for corrupt practices over the last de cades.121

For another, the relative dif culty of raising money makes it much harder for politicians to stay in control of their own message. This increases the relative importance of their portrayal in major media outlets. In countries, from Italy to Great Britain, in which one owner controls a vast swathe of the media landscape, this es­ sentially makes him a kingmaker. It is hardly a coincidence, for ex­ ample, that the candidate backed by the Sun, Britain’s most widely read news paper, has gone on to win ten out of the last ten parlia­ mentary elections.122 Nor is it surprising that Silvio Berlusconi, who owns Italy’s biggest private television network, could dominate his country’s politics for two de cades despite the dismal performance of his governments. Europeans also have good reason to worry about the extent to

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which their po lit i cal elite has become a class apart. The case is most easily made in countries like France, where it passes for news when a politician rises to the top without having attended the tiny École National d’Administration. But lawmakers in most other European countries have also become increasingly disconnected from the bulk of their electorate. As recently as a generation ago, most left­ wing leaders across Eu­ rope had strong roots in the trade­ union movement. Even if they had not themselves been workers, their parents had been, and they were raised in a working­ class milieu. Their ties with the working class were thus cultural and biographical as well as po lit i cal.123

Similarly, most right­ wing leaders had strong ties in a religious movement or an agricultural community. Even if they now lived in the big city, they likely ran in very different social circles, and re­ mained proudly conservative in their lifestyle. Even at a time when politics was highly consensual and policies pursued by Social Democrats and Christian Democrats resembled each other in im por tant ways, this cultural dimension helped to structure European politics: The gulf between the mass of voters and their national representatives was comparatively small. By con­ trast, the gulf between the national representatives of rival po lit i cal parties was comparatively large. As a result, there would have been many party leaders who felt more at ease having dinner with their con stit u ents than with their main po lit i cal rivals. Today, that is no longer the case. All of this has a real po lit i cal impact. It is natural to give more weight to legitimate interests that are salient to us than to those we have trouble imagining. And it is very easy to favor laws of which all of our friends approve over those supported by people we have never met. If legislators have done an increasingly poor job of translating the views of their con stit u ents into public policy, the great social and cultural divide between po lit i cal elites and the bulk of the electorate is a big part of the reason.

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No Easy Outs

Democracy has nearly as many defi ni tions as there are po lit i cal thinkers. It is, as one philosopher put it, an essentially contested concept—one that will brook no agreed­ upon defi ni tion so long as we continue to disagree about what exactly is valuable about it.124 But one need not pull the old scoundrel’s trick of reaching for a dic­ tio nary to call in doubt whether the United States is fully demo­ cratic today. At a minimum, I suggest, any democracy should have in place a  set of effective institutional mechanisms for translating popular views into public policy. In the United States, these mechanisms are now sig nifi cantly impaired. The country’s commitment to liberal rights remains deeply ingrained. But the form this liberalism takes is increasingly undemocratic. America is not alone in its tendency toward undemocratic liber­ alism. Virtually all developed democracies now feature strong tute­ lary mechanisms. A lot of im por tant issues have been taken out of po lit i cal contestation by trade treaties and in de pen dent agencies. When the popular will strays beyond the bounds of the acceptable, it is constrained by technocratic institutions, from the US Supreme Court to the European Central Bank. Even in areas in which the people formally remain master of their own fate, the mechanisms for translating popular views into public policy are so attuned to the interests of social or economic elites that the people’s in flu ence over their own government is severely restricted. Across the West, the last three de cades have been marked by the growing role of courts, of bureaucratic agencies, of central banks, and of supranational institutions. At the same time, there has been a rapid growth in the in flu ence of lobbyists, in the money spent on po lit i cal campaigns, and in the gulf that separates po lit i cal elites from the people they are supposed to represent. Taken together,

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this has effectively insulated the po lit i cal system from the popular will. Steven Levitsky and Lucan Way argue that “unfair competition” de fines “competitive authoritarian” regimes where, as in Hungary, elections retain some real sig nifi cance even though the government has ensured that it gets to compete on an uneven playing field.125 Similarly, many supposed democracies now resemble competitive oligarchies: even though debates about proposed laws seemingly retain sig nifi cance, an unfair policy­ making pro cess gives ruling elites a huge advantage in advancing their own interests.

The few scholars who have written about this phenomenon tend to argue that its roots are as simple as its remedies are obvious. The origins of the people’s disempowerment, they claim, lie in a power grab by po lit i cal and fi nan cial elites. Large corporations and the super­ rich advocated in de pen dent central banks and business­ friendly trade treaties to score big windfalls. Politicians, academics, and journalists favor a technocratic mode of governance because it  insulates their decisions from the popular will. And all of this selfish ness is effectively cloaked by a neoliberal ideology that is propagated by think tanks and academic departments which are, themselves, funded by rich donors. Since the roots of the current situation are straightforwardly sin­ ister, the solutions to it are, supposedly, similarly simple: The peo­ ple need to reclaim their power. Experts claim that in de pen dent central banks are good for eco­ nomic growth, and trade treaties drive down consumer prices. They insist on the need for big bureaucratic agencies and powerful inter­ national or ga ni za tions because they deal with issues that are sup­ posedly too com pli cated for the common man to understand. But once these institutions are exposed as complicit in a conspiracy to

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disinherit the people, it be comes obvious that this simply isn’t true. The solution to the ills of undemocratic liberalism is to abolish tu­ telary institutions, to boot elites out of power, and to put the people back in charge.126

This basic set of intellectual instincts manifests itself in debates about a large range of issues and holds a sig nifi cant amount of sway on both the far left and the far right. It fuels arguments against trade treaties as well as central banks. And it animates the language of Donald Trump as well as Jill Stein, and Stephen Ban­ non as well as Naomi Klein.

The prob lem with all this is that it caricatures the origin, the opera­ tion, and the purpose of these institutions. It is true that po lit i cal elites are overly comfortable with techno­ cratic institutions that so happen to give them a lot of power. It is obvious that fi nan cial elites spend a lot of money and effort to mold these institutions to their own advantage. And there can be little doubt that funding streams favor some ideas over others, helping to set narrow bounds on the range of “serious” opinion.127

And yet, the his tory of most institutions that constrain the popu­ lar view is much more com pli cated than its detractors are willing to admit. The European Union, for example, has its origins not in a conspiracy of corporations, but rather in a reasonably idealistic at­ tempt to rebuild the continent in the aftermath of World War II. Meanwhile, institutions from the Environmental Protection Agency to the International Atomic Energy Agency were designed to re­ spond to genuine prob lems—like pollution and nuclear prolifera­ tion—that had previously been dif cult to address. The day­ to­ day operation of these institutions is a little more com pli cated than meets the eye as well. The negotiations between Greece and the troika have, for example, often been portrayed as a clash between Greek voters and international technocrats. And in

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im por tant ways, they really were (which is why I myself used them as an example of undemocratic liberalism in the Introduction). But a big part of the reason why leaders like Angela Merkel were un­ willing to offer Greece a better deal is that they were themselves re­ sponsive to the views of their own con stit u ents; from this perspec­ tive, the will of the Greek people was ignored in part because it consisted in ignoring the will of other European peoples.128

Just as the his tory and the operation of technocratic institutions is rather more com pli cated than their critics claim, so too the solu­ tion to the prob lem of undemocratic liberalism is rather less clear than they posit. For while it is easy to malign imperfect institutions as useless or self­ serving, they do play three im por tant roles. The world we now inhabit is extremely complex. To keep the economy moving and avoid major di sas ters, we need to regulate banks and enforce consumer safety standards, monitor hurricanes and inspect power plants. There are many different ways of struc­ turing how these tasks are carried out. It makes sense to search for reforms that would give legislatures more power to set the neces­ sary rules and hold the bureaucratic agencies that enforce them ac­ countable. But in the end, both the design and the implementation of these regulations really does require considerable technical expertise. It really is dif cult to imagine that most citizens would take an active interest in them—or that elected politicians could come to master all their intricate details. And so it remains unclear how these tasks could be accomplished if we simply abolished technocratic institu­ tions. The challenge is even bigger when it comes to policy areas that require extensive international cooperation. To slow climate change or contain the spread of nuclear weapons, virtually all of the world’s nations have to come to an agreement about what to do. At the moment, these kinds of decisions are usually made by heads of gov­ ernment (or the ministers they appoint). In democratic countries,

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these are of course elected. But the chain of delegation is extremely long, and the ability of ordinary citizens to in flu ence international treaties highly restricted. Agreements like the Paris Treaty on Cli­ mate Change do suff er from a real democratic defi cit. And yet, it is once again dif cult to see what the realistic alterna­ tive might be. A true world parliament is nowhere near in sight and would, in any case, feel incredibly remote to most citizens. Con­ versely, allowing each country to go its own way makes it impossi­ ble to confront a whole range of global challenges like climate change. In the end, it seems we must choose between achieving in­ ternational cooperation on key issues by a troublingly undemo­ cratic path—and not achieving it at all. Fi nally, the relationship between liberalism and democracy is much more intricate than the opponents of technocratic insti tutions like to claim. For all of their shortcomings, countermajoritarian in­ stitutions like constitutional courts do have a proud rec ord of pro­ tecting individual rights. So their opponents should at least take seriously the possibility that the members of ethnic and religious minorities might become more vulnerable if they were abolished. More broadly, in de pen dent institutions have historically proven very im por tant in keeping democracy on an even keel. As the recent experiences of countries like Hungary or Turkey demonstrate, a system in which the will of the people can override judges and bu­ reaucrats may appear more democratic in the short run; in the long run, it also makes it easier for an autocrat to extinguish democracy.

The double crisis of liberal democracy makes it tempting to go in search of easy solutions. Observers who are most worried by the illiberal attitudes of the populists are unwilling to acknowledge that there is some thing democratic to the energy that drives it; some of them have even ad­ vocated insulating more and more po lit i cal decisions from the pop­ ular will.129 Conversely, observers who are most worried by the

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technocratic attitudes of existing elites are unwilling to acknowl­ edge that there may have been good reason to construct these insti­ tutions in the first place; as a result, they believe that many of them should simply be abolished.130

But no such easy outs can solve the crisis of democracy. If we are to preserve the liberal elements of the system, it won’t do to con­ strain the in flu ence of the populists by put ting all the im por tant decisions in the hands of experts; instead, we need to persuade vot­ ers to defeat them at the polls. Similarly, if we are to preserve the democratic elements of the system, it won’t do to abolish institu­ tions that help to stabilize the economy and to address some of the world’s most urgent prob lems; instead, we need to find ways of re­ forming these institutions to strike a better balance between exper­ tise and responsiveness to the popular will.

s The first big assumption of the postwar era appears to be wrong: liberalism and democracy do not go together nearly as naturally as most citizens—and many scholars—have assumed. As the popular will increasingly clashes with individual rights, liberal democracy is splitting into its component parts. This is deeply worrying. For one, liberalism and democracy are both nonnegotiable values. If we have to give up on either individ­ ual rights or the popular will, we are being asked to make an im­ possible choice. For another, it is looking increasingly doubtful that either illiberal democracy or undemocratic liberalism will turn out to be especially stable. A system that dispenses with individual rights in order to worship at the altar of the popular will may ulti­ mately turn against the people. Conversely, a system that dispenses with the popular will in order to protect individual rights may ul­ timately have to resort to increasingly blatant repression to quell dissent. This casts doubt on the second, even more fundamental assump­

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tion of the postwar era: Democracy, so that story goes, is dif cult to achieve. But once a country is both af u ent and democratic, its po lit i cal system is set in stone. In countries like France or the United States, democracy is “consolidated.” But if liberalism and democ­ racy do not form nearly as stable an amalgam as scholars have long believed, and if each of these values be comes even more vulnerable when the other is lost, then our po lit i cal system seems to face a much greater threat than we have recognized. So are today’s imper­ fect liberal democracies really as safe as we have long believed?