Neil Buchanan: American Democracy Is on Life Support

This article first appeared on the Dorf on Law site.

Is it too late to save constitutional democracy in the United States?

It is possible that there is nothing that can be done to prevent Donald Trump's presidency from turning the U.S. into an autocratic state, completing the Republicans' generation-long effort to make sure that only certain people are allowed to participate in our weakening republic.

Even if that is true—and no one can say with certainty, at this point in history, whether we will indeed go down that path—it is important to decide how to proceed even in the face of inevitable disaster.

Should people who believe in the rule of law act as if there is something still to be done to save the nation from political death, or should they face reality and merely try to minimize the pain as the patient dies slowly in hospice care?

Related: Neil Buchanan: Who Can Prevent a Trump Tyranny?

Here, I will explain why it is so difficult to see a hopeful path forward after the 2016 elections. The deep problem is not merely that the Democrats will not control any branch of the federal government or most state governments, although that is obviously a huge disability.

The ultimate problem is that Trump and the Republicans have thrown off any hint of good faith, which means that Democrats who try to bargain with them might be fated to be played for suckers.

In such circumstances, Democrats could choose to simply ease people's pain as the republic fades away. Like palliative care for the dying, strategies that would be unthinkable for other patients—such as administering high doses of painkillers—might now make sense.

In two recent columns, I have discussed the Democrats' possible use of leverage in any negotiations with the new Trump administration. I first argued that Democrats, who have been arguing for years in favor of large-scale infrastructure spending, should not agree to vote for such spending (votes that Trump might need to overcome anti-spending zealots in his own party) unless they get something important in return.

12_22_Neil_Democracy_01 President-elect Donald Trump at the Mar-a-Lago estate, Palm Beach, Florida, December 21. Neil Buchanan writes that it is difficult to see a hopeful path forward after the 2016 elections. The ultimate problem is that Trump and the Republicans have thrown off any hint of good faith, which means that Democrats who try to bargain with them might be fated to be played for suckers. Carlos Barria/reuters

The most important thing that the Democrats need right now is to restore voting rights to the people. This involves fighting both direct (voter suppression efforts) and indirect (gerrymandering of federal and state electoral districts) Republican strategies that have effectively disenfranchised millions of Americans.

In the second of those two columns, I broadened the point. Not only should Democrats refuse to support any infrastructure bill until Trump agrees to provisions that would restore some measure of democracy, but they must make voting rights their sole goal in every negotiation, no matter what Trump needs them to do.

I am still comfortable with that argument, but it is important now to discuss just how difficult it is to turn that idea into an actual negotiating strategy. After all, much of the dirty work that Republicans have done is at the state level.

It is difficult to see how something like an infrastructure-for-voting-rights deal could actually be designed, because there might be nothing that Trump could promise to do as president that Democrats really need.

That is not quite true, of course, because congressional Republicans are surely now planning to take their anti-democracy campaign to the national level. Trump could be induced to agree to veto a federal voter suppression bill or a repeal of the Voting Rights Act, the defeat of both of which would be important victories for Democrats.

Still, there has already been so much damage done by Republicans in the last few decades that Democrats need to find ways to undo that damage even as they fight Republicans' efforts to make things worse. Is there anything that the Democrats could get Trump to do to help there?

Trump might not be entirely committed to the Republicans' anti-voting-rights efforts. Yes, those efforts guaranteed his 2016 victory, but he might not particularly care about state-level and district-level politics. He will have so many advantages of incumbency going into 2020 that he might not need to worry about keeping Paul Ryan's House majority intact as part of his own reelection effort.

Perversely, if Trump were willing to harm Republicans' ability to rig elections, Democrats might need to count on the autocratic impulses that are so scary about Trump. That is, while presidents like Barack Obama and George H.W. Bush might have been unable to dictate to their national and state parties, Trump might have no compunction about breaking every norm and law to force people to bend to his will.

We are already pretty far down a rabbit hole, but here is where it gets even crazier. Let us imagine that Trump told Democrats that he would give them what they need on voting rights (in whole or in part), and Democrats concluded that this would be a good deal. What then?

The problem is that Trump has shown, not only as a candidate but throughout his life, that he does not respect the terms of any deal that he makes. If he can get away with it, he will screw over his counter-parties every time. Why would he not do this when dealing with the minority party, whose help he will almost never need?

Take, for example, a different quid pro quo that Democrats have been discussing recently. For many Republicans, anti-government extremism includes taking a blood oath never to increase the debt ceiling. Trump will not want to face that possibility (as I will discuss in a future column), so he will need Democrats' votes to pass a bill to increase the debt limit.

One Democratic senator has reportedly suggested that Democrats condition their agreement to increase the debt ceiling on Trump's agreement to require presidential candidates—retroactively to the 2016 election—to release their tax returns.

Pretty clever, right? Trump would truly be in a tough spot, needing to give up something important in order to get something even more important.

But as I have noted, Trump does not believe in win-win approaches to negotiating (or anything else). He has shown again and again that he only feels victorious when his opponents lose in humiliating fashion. And that is why he does not respect the terms of deals that he makes.

Suppose that Trump tells Democrats that he will sign a bill containing the provisions that they demand. Suppose further that Republican leaders are forced to put those provisions in the same bill that contains the debt ceiling increase, so that Trump cannot sign one bill and veto the other. Is that enough?

A person who is willing to honor his word and who respects the nature of compromise would uphold his part of the deal. Trump, on the other hand, could do one of two things.

First, he might simply refuse after the fact to release his tax returns, while ordering the Treasury Department to prevent the IRS from obeying any requirements in the new law to release those returns.

Second, Trump could simply tell Republicans the day after the bill is passed to send another bill to his desk negating the provisions that the Democrats demanded.

Democrats could then complain that Trump did not live up to his side of the bargain. Trump would tweet back: "Dems got played and now are crybabies because I outsmarted them. Sad!"

The mainstream press would hammer Trump over this for a few days, but soon treat it as old news, with the discussion devolving into how much blame the Democrats deserve for not realizing that Trump would betray them. It is not as if they can claim to be surprised by his dishonesty, right?

As I noted above, Democrats will have very few situations in which Trump might need their votes or cooperation. But if there is any possibility of a future time that Trump would need them, game theory tells us that he should want to maintain some credibility. Once he reveals himself to be untrustworthy, Democrats would supposedly not be fooled again.

But what is their alternative? Suppose that, a few weeks or months after Trump completely plays them on the bill that I described above, Trump then needs the Democrats to vote for an infrastructure bill. Democrats will have reasons to say, "Well, maybe this time...." True, Democrats would then do everything possible to build guarantees into any deal, but they could not simply walk away.

In the United States, parties to a contract are generally required to engage in "good faith and fair dealing," not because we think that people will not drive a hard bargain but because even the most hard-fought deals require the confidence that the other side is not hiding something or planning to defeat the purpose of the deal. Opportunism undermines capitalism's need for reliable contracts.

In politics, most deals cannot be enforced by courts, but both parties used to understand that chickens come home to roost. When Republicans began to nakedly abuse the filibuster, when they blocked Obama's Supreme Court nominee under the flimsiest pretext, and when they violated one political norm after another, the ability to make mutually beneficial political deals slowly came undone.

Trump merely takes this to the next level, not even pretending that he will hesitate to press an advantage. Democrats, when they feel the need to make a deal, will be well advised to impose as many conditions as possible, but ultimately they might not be able to trust any agreement.

Even if they get Trump to veto a repeal of the Voting Rights Act, for example, there is nothing stopping the Republicans from passing the same bill again, with Trump saying that he can sign the new bill because he honored his pledge to veto the original one.

All of which means that my advice to Democrats—put all of your efforts into restoring voting rights—might be great in theory but impossible to achieve in Trumpworld.

Maybe Republicans have already so debased the idea of government for the people that there is no coming back, especially with a shameless opportunist like Trump in the Oval Office. If so, what does that mean?

Even when long-term defeat is inevitable, should Democrats agree to short-term wins? It continues to be true that infrastructure spending would be good for the economy, but Republicans might refuse to fund it. Should Democrats step in to make that good thing happen?

If the ideal outcome—restoration of something resembling a true constitutional democracy—is off the table, Democrats might reasonably decide that they should simply go ahead and do what they can for the good of the country.

The additional jobs and higher incomes that would result from infrastructure spending would help people (many of whom voted for Trump, but no matter). Is that not what good public servants should be trying to achieve?

The patient might truly be dying, with no hope of recovery. At that point, it becomes important not to worry about things like balanced diets. Why withhold one good thing when there is no hope of getting any other good things that would make the patient even stronger after recovery? Keeping the patient as comfortable as possible as life slips away becomes the humane thing to do.

This is all more than a bit depressing, I confess. Maybe some Republicans will decide to stand up to Trump, and maybe the Democrats will figure out ways to prevent Trump and his party from engaging in fatally opportunistic strategies.

If not, however, maybe the right answer is just to make everyone feel as good as possible for as long as possible.

Neil H. Buchanan is an economist and legal scholar, a professor of law at George Washington University and a senior fellow at the Taxation Law and Policy Research Institute at Monash University in Melbourne, Australia. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.