Trumped 2B: a country of two tales

The third instalment of an inadvertent trilogy

I’d intended a short digression on America’s election. After all, Leading Managers is about leadership and management in the Ideas Era. Unfortunately, so is politics. This is the third instalment. The first two are: Trumped: democracy in the Ideas Era Part 1 and Trumped Part 2A: The shining city on the hill You don’t have to have read them to read this. And you don’t have to read this for that matter. Or the fourth - yes, there’s to be a fourth. But that’s definitely it.

Here’s a quesiont:

Q: What is more troubling than Donald Trump getting re-elected?

A: That it might say more about democracy than America.

America is different. I touched on this a bit already. I’ve come back to it here. It’s something I do I like to call The Weave ©.

This post points to some uniquely American features that make matters worse. But my aim is to offer some small comfort to Canadians not to gloat, as you’ll see if you read the fourth installment!

Chatting over the back fence with America

America is feeling vulnerable right now so, in the first two posts (with the becoming modesty that is my signature), I inserted myself therapeutically into its reflections to point out that being a shinning city is a big part of its problem; its Revolution wasn’t all that revolutionary; its Constitution only half baked; and its driving becoming worryingly erratic. (And I wrote the erratic driving bit before Trump threatened pretty well everyone save Russia and North Korea with punative tariffs.)

You’re welcome America. Neighbours help neighbors.

A country of two tales

The New Republic said voters overlooked everything about Trump because,

Today, the right-wing media—Fox News (and the entire News Corp), Newsmax, One America News Network, the Sinclair network of radio and TV statio¹ns and newspapers, iHeartMedia (formerly Clear Channel), the Bott Radio Network (Christian radio), Elon Musk’s X, the huge podcasts like Joe Rogan’s, and much more—sets the news agenda in this country. And they fed their audiences a diet of slanted and distorted information that made it possible for Trump to win.

The New Republic is correct but the right-wing media ecosystem is the oily residue on the surface of a political culture. The roots of “the 50/50 country” are old and deep. America has never sustained more than two political parties. What other democracy has so much politics and so few parties? Even the first past the post systems like the UK and Canada - which tend to discourage multiple parties - always have at least three. The Canadian Parliament currently has five.

In a multi-party political culture formal and informal coalitions form and dissolve variously supporting and opposing the government; the lines between parties are softer and overlap at points; and cooperation is often the key to power.

American voters perennially face a binary choice. That is the foundation on which right wing media built its incongruous walled garden. How did it happen?

The Fair Ness Monster

Repeal of the fairness requirement in 1987 freed American broadcasters to be one-sided. They found it profitable to pick a side and pick on the other side. Literally.

The UK requires “due impartiality” and “due accuracy” and of course has the BBC bending over backwards to be balanced if that’s possible. Similarly, Canada has a prominent, some would say too dominant, national broadcaster and the CRTC has a detailed policy under the Broadcasting Act on diversity of voices and views.

In the US the assumption is that people obtain information from a variety of sources so let the free market generate the competition of ideas. The problem is, people can, but that’s not how people work.

We pick a lane. And the largest single group of Americans picked the Right lane,

Fox News Channel averaged 2.6 million total day viewers during the week of November 4-10, finishing as the only cable network to crack the 1-million viewer plateau. Fox News more than doubled runner-up MSNBC’s audience, as the liberal network averaged 967,000 total day viewers to finish second.

Ratings-challenged CNN averaged only 720,000 total viewers to finish fourth, behind third-place ESPN.

Fox News walloped the competition during the primetime hours of 8-11 p.m., averaging 4.3 million viewers to finish with twice the audience of No. 2 ESPN’s 2.1 million average.”

Right-wing media is one-sided and powerful because it is one-sided.

Hardening the arteries

Right wing media didn’t create American politics. Its monetized it by toxifying it. Repeal of the fairness requirement freed media to calcify the divisions between the camps by cutting off communications between them.

In 1960, only 5% of Republicans and 4% of Democrats said they would feel “displeased” if their son or daughter married outside their political party. By 2010, those numbers had skyrocketed to 49% and 33%.

Republicans have been found to like Democrats less than they like people on welfare and gays and lesbians. Democrats dislike Republicans more than they dislike big business. The Economist 8 March 2019.

Keepers of walled gardens have a problem, because it’s hard to fit more people in, they need to keep the people who are in engaged. So the parties and media stage a long series of pep rallies called, with unintended veracity, primaries.

Primaries

Primaries date back to 1910s but only really got into gear after the disastrous 1968 Chicago Democratic Convention when it was decided to democratize candidate selection. The assumption was and is that democracy is good so more democracy must be better. This is as true of democracy as it is of drugs and alcohol.

There’s a time and a place for everything and, in the case of voting it isn’t all the time, everywhere, for everything.²

The only thing a democratic election requires is that voters have a choice of’ candidates in the election. In other democracies parties are perfectly capable of proposing candidates for the voters to choose among.

The model relationship between the voting public and political parties is my relationship with breweries. I vote for the best beer when I shop. I don’t need to vote on the recipe. Anyway, I don’t I have time and know little about brewing.

I say let the party stalwarts pick their candidates at a convention. They want to win the general election and will at least try to pick candidates with broad appeal. Primary voters pick candidates that appeal to them. And primary voters tend to be more extreme than the general population. If we had beer primaries the hopheads would turn out in large numbers and IPAs would be undrinkable.

Primaries weakened political parties as institutions and in this centrifugal age of misinformation, we need strong institutions for ballast. Primaries enabled Donald Trump’s hostile takeover of the Republican Party. They probably hampered efforts to quietly address concerns about Joe Biden in the Democratic Party.

Thanks to primaries America is in a continuous election campaign, making every issue partisan and costing gobs of money.

With that, we turn to situations the US Supreme Court(SCOTUS) has made worse. 

Election expenses

SCOTUS’s Citizens United decision³ struck down 100 year old election spending restrictions in favour of the individual right of free speech and worse, extended free speech to corporations.

“The ruling has ushered in massive increases in political spending from outside groups, dramatically expanding the already outsized political influence of wealthy donors, corporations, and special interest groups.” The Brennan Center for Justice

It’s not only the need for money - $20b - it’s also the influence it buys,

“Outside spending on 2024 federal elections has hit a record $4.5 billion, with more than half of that spending coming from groups that do not fully disclose the source of their funding.” Open Secrets November 6, 2024

Canada’s Supreme Court upheld campaign finance spending limits as necessary “to create a level playing field for those who wish to engage in the electoral discourse, enabling voters to be better informed.”⁴

The overarching reason we need free speach is that democracy depends on the competition of ideas. It was bad enough when one side had a voice and the other a megaphone. Now one side has an algorithm and a mute button.

Gerrymandering

In 1991 Canada’s Supreme Court held⁵ that, if the right to vote is to mean anything, constituencies must be roughly equal in population and therefor boundaries are subject to judicial review. Today all Canadian electoral boundaries are determined by non-partisan expert commissions at least every ten years.

In 2019’s Rucho v. Common Cause, SCOTUS held⁶ that boundaries are political and therefore “’nonjusticiable,’ barring federal judges from reviewing them “no matter how egregious the gerrymander.”⁷

In the US only a fifth of congressional districts are drawn by independent commissions or state courts.

In the latest redistricting cycle, as in previous ones, a majority of congressional districts were drawn through map-drawing processes controlled or dominated by one party, with 26 states passing maps on a wholly or mostly party-line basis. 

But the cycle also saw notable changes, with two additional states using independent commissions for the first time and an increased number of maps drawn or modified by state courts. All told, independent commissions and courts each drew around a fifth of congressional districts. Brennan Centre for Justice October 5, 2022

The Electoral College⁸, with its 48 “winner take all states”, at best exaggerates the popular vote and at worst overrides it. Five presidents, including George W. Bush and Donald Trump (2016) lost the popular vote.⁹ Taken in combination with gerrymandering, the result is that presidential elections are decided by less than 10% of the voters of 6 or 7 states.¹⁰

The combination of primaries, gerrymandering, and winner take all states in the Electoral College gives the two main parties the perverse incentive of turning out your voters rather than reaching out to theirs. And you do that by firing up yours by demonizing theirs.

Presidential immunity

On July 1, 2024, , the US Supreme Court held, in a 6–3 decision,¹¹ that presidents have absolute immunity for acts committed within their core constitutional purview”, and at least presumptive immunity for official acts within the outer perimeter of his official responsibility. Commentators groused that the court had made the President a king. America should be so lucky.

In the British constitutional monarchical system, the monarch is the head of the executive branch of government and invariably obeys the law. This astonishing fidelity to the rule of law is down to HM’s Government being a legal fiction and not a mere mortal. Even premiers and prime ministers are no more than agents of HM’s Government. If they don’t act in accordance with the law, they exceed their agency. An unlawful act is an unofficial act QED. (I can say I was more comfortable explaining this to ministers in the abstract than the particular, but it always got a good result in the end.)

The SCOTUS was worried about politically motivated prosecutions but there is a simpler way to avoid them and I’m sure Democrats now deeply regret not following Nova Scotia’s lead. 

The practice is for the President to be at arm’s length from the Justice Department’s investigatory and prosecutorial functions. That is a principle in the Westminster parliamentary jurisdictions as well, but, rather than rely on good faith, a number have created statutorily independent public prosecution services (PPS).¹² 

Nova Scotia created its PPS in response to the Marshal Commission. (I was a government lawyer at the time and we recommended it to the Commission based on Australia’s.¹³)

The attractive feature of this model is that the Attorney General, a member of the legislature and the cabinet retains the authority to direct the Director of Public Prosecutions but only by published notice. This protects the DPP from covert direction - which is bad - while still retaining the AG’s legitimate rights and responsibilities for prosecution - which is good. It insulates prosecutions from political and public pressure. This ensures that executive branch functions remain publicly accountable but free of inappropriate influence.

As it stands, Donald Trump will have an AG willing to accept his direction, covert and overt.

Summing up

Primaries and unregulated political contributions encourage extremism. Gerrymandering and winner-take-all-states in the Electoral College solidify voting blocks.

The centrifugal forces of the Idea Era amplify the divisions between two parties and one sided media harden them. The centre becomes a no man’s land. So, the parties dig in and fortify their positions. And the division of powers is fatuous when the three branches are all together in the same trench.

I end as I began. None of this is to say authoritarianism is uniquely American. At worst it has unique susceptibilities. While I believe parliamentary democracies are better able to resist extremism they are not immune. The fear is that America’s institutions may merely have eased its passage down a road we are all travelling where the news nozzle becomes a mute button.

We have been “drinking from a fire hose” for years. The difference between the information era and the ideas era is that each of us has our own adjustable news nozzle. Information has never been a match for ideas - believing is seeing after all - but, now that we can broadcast and narrow receive, it is easier to spread fantasy and harder to explain reality.- Introducing Leading Managers,

In the fourth and final post in this series -

Trumped 4: swamping the brain

we explore the vexing issues raised by the question, “What was number 1 in Canada when ‘Wake up Little Susie’ was number 1 in the USA’?

1. Why Does No One Understand the Real Reason Trump Won? The New Republic Nov 08, 2024,  

2. Voting for judges is inconsistent with judicial independence, and electing district mosquito control commissioners (yes they do that in Florida, even in the primaries) is a waste of ballot space and voter time.  https://www.myfloridalegal.com/ag-opinions/special-actmosquito-control-district

3. For an explanation see Brennan Center for Justice https://www.brennancenter.org/our-work/research-reports/citizens-united-explained

4. Harper v. Canada (Attorney General) 2004

5. The Attorney General for Saskatchewan v. Roger Carter et al [1991] 2 SCR 158 It’s presumptively plus/minus 25% of the mean. For a brilliant analysis of when it is acceptable to deviate see the report of the Commission on Effective Electoral Representation of Acadians and African Nova Scotians

6. https://en.wikipedia.org/wiki/Rucho_v._Common_Cause

7. “The Supreme Court Just Made Gerrymandering Even Easier”

8. The Electoral College may have made sense in 1791 when small states worried their favourite sons would inevitably loose to those of the larger states and there was no way voters would know anything about national candidates. So, in theory at least, having the states send eminent people to piously deliberate over who was best qualified to be president was a sensible idea - and one that only lasted until it was tested.

9. https://www.history.com/news/presidents-electoral-college-popular-vote

10. And while we’re on the subject, where else does one government run another’s election let alone a national election? They each have different rules. Yet the USSC held Trump could not be removed from the ballot in one state because it is a national election. It’s been argued that having each state run elections improves security because there is no single point of failure. But that only works when there is redundancy – if all the states counted each other’s votes.  They don’t so there are instead 50 points of failure and a failure in a key state could wreck the election. We’ve seen how convincing even allegations of failure are.

11. Donald J. Trump v. United States of America (2024). We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.” = per Roberts CJ

12. https://en.wikipedia.org/wiki/Director_of_Public_Prosecutions

13. “The CDPP was established under the Director of Public Prosecutions Act 1983 (the DPP Act) and began operations on 5 March 1984. The Office is under the control of the Director, who is appointed for a term of up to seven years. The CDPP is within the Commonwealth Attorney-General’s portfolio, but we operate independently of the Attorney-General and the political process. The Commonwealth Attorney-General has power under section 8 of the DPP Act to issue directions or guidelines to the Director. Directions or guidelines must be in writing and tabled in Parliament, and there must be prior consultation between the Attorney-General and the Director.” https://www.cdpp.gov.au/about-us