Back to Prindle Institute

Accountability, Negligence, and Bad Faith

photograph looking up at US Capitol Building

The wheels of justice are turning. As I write this, there are a number of movements afoot — from D.C. police continuing to arrest agitators and insurrectionists on possible sedition charges to Representative Ilhan Omar drawing up articles of impeachment — designed to separate the guilty from the guiltier and assign blame in appropriate proportions. And there is a great deal of blame to go around. Starting with the president’s inciting words just blocks away to the mob he steered to breach the Capitol intending to effect their political will, these are culpable parties. But we might consider others. Those members of Congress, like Senators Josh Hawley and Ted Cruz, willing to lend the considerable credibility of their office to unsupported (deunked and repeatedly dismissed) accusations of a stolen election, surely share some portion of the blame. To hold these parties to account, Representative Cori Bush is introducing legislation to investigate and potentially remove those members of Congress responsible for “inciting this domestic terror attack.” In the meantime, the calls for Senators Cruz and Hawley to resign are only growing louder.

But what are these lawmakers really guilty of? On what grounds could these public, elected officials possibly be threatened with removal from office? To hear them tell it, they were merely responding to the concerns of their constituents who remain convinced that the election was stolen, robbing them of their God-given right to be self-governing. They are then not enemies of democracy, but its last true defenders.

Nevermind that people’s belief in election malfeasance is not evidence of election malfeasance (especially when that belief is the product of misinformation disseminated by the very same “defenders”), this explanation fails to appreciate the design of representative democracy. Ours is not a direct democracy; citizens are not called upon to deliver their own preferences on each individual question of policy. Instead, we elect public servants that might better represent our collective interests than any one individual might herself. The hope is that this one representative might be better positioned than the average citizen to engage in the business of governing. Rather than pursuing any and all of their constituents’ interests come what may, these lawmakers are tasked with balancing these competing interests against fealty to the republic, the Constitution, and the rule of law. In the end, these officials are people who can, and should, know better. As Senator Mitt Romney argued Wednesday, “The best way we can show respect for the voters who are upset is by telling them the truth.” That there is no evidence that the results of the presidential election are in error, and that Joe Biden won the election. “That is the burden, and the duty, of leadership.”

Perhaps, then, these legislators were merely negligent, inadequately discharging their duties of office and ultimately unable to anticipate the outcome of things beyond their control. (Who could have predicted that paying lip service to various conspiracy theories would be enough to give them the weight of reality?) And so when words finally became deeds, the violence displayed at the Capitol was enough to make several Congressmembers reconsider their position. It was fine to continue to throw sand in the gears as a political statement, but now faced with such obvious and violent consequences (as well as the attending political blowback) even Senator Lindsey Graham was willing to say “enough is enough.

But negligence is a slippery thing to pin down; it rests on a contradiction: that one can simultaneously be instrumental yet removed, responsible but unaware. Many might agree that these lawmakers’ actions betray a failure to exercise due care. These senators and representatives underestimated risk, ignored unwanted or unintended consequences, and failed to appreciate the cultural, societal, and political moment. But establishing that these members of Congress acted negligently would require demonstrating that any other reasonable person placed in their shoes would have recognized the possible danger. (And “reasonableness” has proven notoriously difficult to define.)

For these reasons, demonstrating negligence would seem a tall order, but this charge also doesn’t quite fit the deed. The true criticism of these lawmakers’ actions has to do with intention, not merely the consequence. Many of these public officials not only failed to take due care in discharging their duties of office and serving the public’s interests, but were also acting in bad faith when doing so. Theirs was not merely a dereliction of duty, but a failure borne of dishonest dealings and duplicitous intent. The move to object to the Electoral College certification, for example, was never intended to succeed. Even Senate Majority Leader Mitch McConnell was willing to condemn the cowardice and self-serving aggrandizement involved in making a “harmless protest gesture while relying on others to do the right thing.” Similarly, the vote led Senator Mitt Romney to question whether these politicians might “weigh [their] own political fortunes more heavily than [they] weigh the strength of our republic, the strength of our democracy, and the cause of freedom.”

In the end, the use made of folks’ willingness to believe — to believe in a deep-state plot and broad-daylight power grab — all for private political gain, pushes us past a simple charge of negligence. The game these politicians were playing undermines any claim to be caught unawares. The fault lies with choice, not ignorance. A calculated gamble was made — to try to gain political points, retain voter support, and fill the re-election coffers by continuing to cast doubt on the election results and build on some constituents’ wildest hopes. The problem isn’t merely with the outcome, it’s with the willingness to trust that private gain outweighs public cost. But as Senator Romney asks, “What’s the weight of personal acclaim compared to the weight of conscience?”

As it stands, there are far too many guilty parties, and not enough blame to go around.

Under Discussion: Democracy Demands More than Your Vote

photograph of protesters occupying Brookyln Bridge

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

It took roughly thirty minutes for people to start arguing about what to do once reports of Supreme Court Justice Ruth Bader Ginsburg’s death became public on the evening of September 18th. With fewer than two months left before Election Day, it was not immediately clear that Ginsburg’s replacement could — or should — be rushed through the confirmation process before November 3rd. And many were quick to say, in no uncertain terms, that they thought it inappropriate for the president to nominate another justice, given the political circumstances. Consider this tweet from author and producer Reza Aslan:

Nevertheless, it quickly became clear that partisan interests would indeed take center stage in the final weeks of the election cycle with (eventual nominee) Amy Coney Barrett’s name circulating as a likely contender for the seat even before Ginsburg’s body had been laid to rest. Despite public opinion polls indicating that a consistent majority of voters want the winner of the 2020 presidential election to nominate RBG’s replacement, President Trump and Senate Republicans have worked hard to pack up the Supreme Court before November, nonetheless.

And, despite Mr. Aslan’s September suggestion, nothing has been burned down.

While some protests, both in Washington and at the homes of several Senate leaders, have materialized, the dominant prescription to voice public opinion on the matter has pointed towards one place: the ballot box. In a manner reminiscent of former President Obama’s famous “Don’t boo; vote” call, politicians, pundits, and other media personalities have, with increasing fervor, exhorted the American people to get to the polls. And though it is hard to measure the impact of a “Souls to the Polls” event or a special reunion of Aaron Sorkin’s The West Wing, early calculations suggest that Americans are indeed voting in record-shattering numbers, with voter turnout in 2020 already matching 12% of total voter turnout in 2016.

Of course, for someone specifically interested in voicing their displeasure at the partisan abuse of the currently-vacant SCOTUS seat, pleas to vote in an election that won’t be decided (and whose winners won’t be installed) until well after Judge Barrett becomes Justice Barrett might seem beside the point. Furthermore, even if the timeline were different, the SCOTUS-motivated voter would be casting her ballot in support of a candidate who would also receive support from thousands of other voters and it’s far from clear that the entire group would be voting for exactly the same reasons. Politicians frequently aim to build coalitions of differently-motivated voters for precisely this reason: opinions vary, not only about answers to political questions, but about which questions are most important to ask in the first place. For all its virtues, the “one vote, one voice” mantra fails to account for the unavoidable homogenization of voter’s voices in support for a single candidate.

This is roughly why the French philosopher Jean-Paul Sartre called voting a “trap for fools” that prevents people from exercising their true power as citizens. Championing instead the formation of interest groups that can wield political power about the specific values around which they unify, Sartre saw voting as an institutional mechanism for “serializing” the citizenry into complacent powerlessness. According to Sartre:

“When I vote, I abdicate my power — that is, the possibility everyone has of joining others to form a sovereign group, which would have no need of representatives. By voting I confirm the fact that we, the voters, are always other than ourselves and that none of us can ever desert the seriality in favor of the group, except through intermediaries. For the serialized citizen, to vote is undoubtedly to give his support to a party. But it is even more to vote for voting…that is, to vote for the political institution that keeps us in a state of powerless serialization.”

By assimilating variable support for a panoply of initiatives and desires into the discrete affirmation of only a handful of individual politicians, Sartre saw representative-based voting as a flattening of a person’s public agency.

And, indeed, the drafters of the U.S. Constitution would seem to agree. Writing in the Federalist Papers, James Madison warned about the dangers of public sentiment forming “factions” that could ultimately overthrow the system he and his friends were constructing. To Madison, this was a problem for two reasons: firstly, populist forces could easily be swayed by the manipulative power of demagogues (a point Alexander Hamilton discusses at length in Federalist No. 68), and, secondly, voters could form factions — what Sartre would call “groups” — that would threaten the “various and unequal distribution of property” within the United States. In Federalist No. 10, Madison outlines a defense of what would become the Electoral College as a cooling mechanism that could prevent popular ideas from being quickly turned into federal policy, saying “A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.” Indeed, Madison’s “republican remedy” looks strangely similar to Sartre’s “powerless serialization,” but whereas the former views it as a solution to a problem, Sartre sees it as a problem of its own.

But, for all their disagreements, I think that Madison and Sartre would nevertheless agree on at least one thing: the practice of voting is not the chief duty of a democratic citizen. When not plagued by manipulative efforts to suppress voter turnout, the standard electoral process is a relatively easy responsibility that takes — again, in ideal circumstances — only a short amount of time every few years. But Sartre ridiculed those who “have been persuaded that the only political act in my life consists of depositing my ballot in the box once every four years,” arguing instead that the life of the political agent is suffused with a constant responsibility to attend to, speak up about, and organize both supports and protests in service of public issues.

In a similar way, later in his life, Madison defended not only public education, but specifically for “the poorer classes to have the aid of the richer by a general tax on property” so that, among other things, the electorate would be both more informed and more equipped to engage in political life; indeed, to Madison, the operation of such “learned institutions” to enlighten the public is “the best security against crafty and dangerous encroachments on the public liberty.” So, for both Madison and Sartre, politics was not simply a matter of semi-annually marking a ballot, but required diligent, regular attention to important matters of public concern, educating oneself and others so as to bring about the overall best state of affairs.

To be clear: my point is not to cast doubt on the value of suffrage, but to recognize that whatever virtues (pragmatic or otherwise) it may hold, the general election does not exhaust the duties of a responsible citizen in a modern democracy. Protestors, educators, and other servants of civic welfare who care for justice to be understood and upheld are just as crucial for the vibrant operation of our republic as are poll workers and voters.

As Hamilton himself wrote in The Farmer Refuted, “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature.” Democratic citizens who take that identity seriously should exercise these human rights and responsibilities in ways that far exceed the always-soon-to-be-musty ballot box.

Under Discussion: A Dearth of Democracy

photograph of huge crowd from above, many with arms raised

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

At what is arguably the most powerful level of our government, there is the least democracy. The words “government of the people, by the people, and for the people” rings largely hollow, when seen in the light of the possibilities of democracy. This observation is not countered by the pedantic point that the United States was not conceived of as a democracy, but instead as a republic. Even conceding this point, as a democracy of indirect representation the United States is not particularly democratic.

The federal government is more removed from the direct control of the people than are the governments of the various states. This is by design. Originally, the federal government was conceived of more as the forum in which the states themselves, rather than the citizens thereof, advocated for their interests. Members of the US Senate were chosen by the legislatures of the states they represented, rather than directly by the people of those states. The President of the United States was chosen by electors, which in most states were not selected by popular vote but by the legislature of that state. Moreover, the number of electors allocated to a given state was based on that state’s number of representatives in US Congress. Hence, all of the federal government, except the US House of Representatives, constituted an at least doubly-indirect democracy.

To demonstrate this point, it helps to spell-out different mechanisms of democracy. We’ll talk about two mechanisms of indirect democracy, and two of direct democracy. The first mechanism of indirect democracy is what most people in the US likely think of when they talk about a democratic process — election. To state the obvious, election is the mechanism by which we pick someone to act as our representative in some role. As we’ll see later, elections can be conducted in manners that lead to a more or less representative outcome. The corresponding mechanism to election is recall, by which people vote to remove someone from a role for which they were earlier elected. A recall election is followed by, and sometimes combined with, a special election to fill the seat vacated by the official who was recalled. Retention elections, in which voters determine whether a judge remains in office, are used in several states and are a kind of hybrid election-recall mechanism.

The mechanisms of direct democracy are powers which people in indirect democracies vest in elected officials: initiative and referendum. Initiative is the power to propose and enact laws: i.e., legislative power. Ballot initiatives are the relatively rare occasions in which voters exert some direct control over what laws are enacted. The power of referendum is to initiative what recall is to election: it is the means by which enacted laws are repealed. In practice, the terms ‘initiative’ and ‘referendum’ are both used primarily to refer to legislative proposals that are voted on directly by voters. There are other, non-legislative powers that in theory could be assigned to voters at large. However, we’ll stipulate for the purposes of this discussion that it is a bad idea to give executive (enforcing the law) and judicial (interpreting the law) powers to the general electorate.

At the federal level, there is no popular initiative or referendum. All federal legislation is promulgated, amended, or repealed by the initiative of US Congress. Nor are any federal officials subject to recall. (Federal judges are not subject to retention elections, as they serve during “good behavior.”) Hence three of the four mechanisms of democracy — and both of the mechanisms of direct democracy — are unavailable at the federal level. This leaves only election. The federal government is less removed from popular control than it was originally. US Senators have been elected by popular vote since the 17th Amendment to the US Constitution, ratified in 1913. Further, every state apportions its electoral votes for president on the basis of popular vote. However, discontent with the federal government has led to numerous calls to reform these entities or the way they’re elected. In some cases, people even call for the abolition of the electoral college or US Senate. These institutions and the way their members are selected do not necessarily represent the varied interests of US citizens and their diverse values. Many reformers look to parliamentary countries (e.g., New Zealand) that make use of systems like proportional representation and ranked-choice voting for inspiration. Some US states make limited use of some mix of these enhanced democratic mechanisms. But by-and-large, the various states of the US recapitulate the limited and indirect forms of democracy found at the federal level.

As the United States prepares for a presidential election marked by extreme polarization and cautious attention from the rest of the world, there will be a lot of talk about the US system of government. The candidates will tout the US as a great democracy that will flourish under their leadership, and will warn of the degradation democracy faces at the hands of their opponent. It is important to keep in mind when evaluating all this rhetoric how little democracy the US has ever had, especially at the federal level.

The Deeper Significance of Women Presidential Candidates

Kamala Harris giving a speech, smiling and speaking into microphones, with people crowded around

Women presidential candidates are appearing in unprecedented numbers for the 2020 election. So far, Elizabeth Warren, Kamala Harris, Kirsten Gillibrand, and Tulsi Gabbard have announced their intentions to run. This surge corresponds to the 2018 midterm elections, which also saw record numbers of women obtaining seats previously held by men. In the wake of the 2016 election, when the presidential confirmation of a Donald Trump won the day over an eminently qualified female candidate, it seems that more women are ready to run and more people are eager to elect them.

 From the stoic prudence of Angela Merkel to the fallen humanitarian Aung San Suu Kyi, it is clear that women are as capable and complex as their male peers in positions of leadership. Women are leaders around the world, though recently they constituted only 6 percent of international leaders compared to male heads of state.  

American voters believe women score equally or higher than men in terms of valued leadership qualities, but women still lag behind men in positions of power, including their most glaring omission in the role of the US presidency.

Reactionary streams in American politics likely bear some role in women’s lagging parity. The most recent iterations include the conservatism of the neo-Nazi movement espoused by Richard Spencer, the unlikely stardom of Jordan Peterson, purveyor of 19th century psycho-social truisms presented as original contrarian theories, and the backlash to the #MeToo movement among Republican leadership exemplified in the appointment of Brett Kavanaugh to the Supreme Court after his histrionic confirmation hearing.

At the same time, these reactions to change suggest that unparalleled changes are occurring. Among them is a redefinition of character norms.  

Our very notion of “virtue,” a core term in philosophical discussions about character, has gendered connotations. The word “virtue” in English derives from the Latin word for “manliness.” While the ancient Greek term for virtue is gender-neutral, i.e. excellence (arete), Aristotle’s Nicomachean Ethics treats personal greatness as the birthright of a very few men. Aristotle speaks of courage and justice, but also liberality and magnanimity, character traits which reflect a superior social standing. Aristotle, like so many of his successors, demarcated virtue and public life as the space for the few males who belonged to an emancipated, land-owning, citizen class. This separation was made possible by setting aside manual and household labor or “economy” – literally, household management, as the province of women, slaves, and the non-citizen class of men. It was this vast majority’s task to create value which would accrue to the men in charge. It is thus no surprise that “magnanimity” or “greatness of soul” (characterized by a sense of entitlement) also figures largely among Aristotle’s virtues.

Because women, slaves, and non-citizen men performed the labors of life, Hellenistic aristocratic men enjoyed leisure or “paideia,” which permitted education and a public life that are essential for political participation. This primary division of labor and leisure justified an oligarchic and patriarchal logic: might equals right. This is the circular logic of power: those who are in power must have managed it by being somehow superior (an argument Aristotle makes in his Politics) or conversely, those who are in power determine the rules because they can enforce them. The latter is put forward by Plato’s Thrasymachus in the Republic (Thrasymachus, incidentally, may be one of the most socially-realist characters in early philosophical literature). This ancient rationalization of “might equals right” has enjoyed a surprisingly long shelf life. America’s founding fathers similarly opted for a “republic” rather than a democracy, ensuring that only a very few, adult, European-descended, property-owning men could vote. Even today, the fundamental logics of white supremacy and extreme capitalism can be parsed in very similar lines.

Given that women, persons of color, and LGTBQ individuals have been running for office in record numbers since Trump, it will be interesting to see the kind of politics that arises from communities that are not accustomed to power and representation as their birthright. Figures like Elizabeth Warren, Kamala Harris, and the Congresswoman Alexandria Ocasio-Cortez suggest visions for a more inclusive distribution of power, labor, representation and compensation. In the long, painful stages of late capitalism where a middle class has all but disappeared, and the majority of Americans are carrying most of the burdens of contemporary life while only a very few enjoy its rewards, it seems that voters are ripe for a new kind of politics.