SHORING UP A DEMOCRACY UNDER SIEGE.

• Author: Ispahani, Laleh
• Position: Essay

The United States is experiencing an unprecedented erosion of democratic institutions and norms under the Trump administration. While constitutional checks and balances are holding for now, we are seeing the kinds of challenges that have presaged a shift toward authoritarianism in other countries. If not countered, this kind of "constitutional regression" can develop into something that looks like a more lasting authoritarian condition, with institutions that are so hollowed out as to be ineffective, and with impact that outlives the Trump administration. Since November 2016, American civil society's reform sector has adjusted, adapted, and innovated to meet these challenges. To facilitate their success, the philanthropic sector must likewise adapt.

The Open Society Foundations (OSF) are a global philanthropy whose mission is to foster open societies in place of authoritarian ones. (2) Our founder George Soros was born in Hungary and lived through the Nazi occupation of 1944 to 1945, which resulted in the murder of over 500,000 Hungarian Jews. In 1947, as Communists consolidated power in Hungary, Mr. Soros left for London where he ultimately studied philosophy with Karl Popper, author of The Open Society and Its Discontents, at The London School of Economics and Political Science. In 1956, he emigrated to the US, where he worked in the worlds of finance and investment. He has used the fortune he amassed to support philanthropy that reflects Popper's philosophy--that no ideology is the final arbiter of truth, and societies can only flourish when they allow for democratic governance, freedom of expression, and respect for individual rights. (3) Mr. Soros began his philanthropy in 1979, giving scholarships to black South Africans under apartheid who might lead their country out of closed and authoritarian conditions, and into ones governed by democratic principles, respect for the rule of law, protection of the rights of minorities, and civil and political liberties. In the 1980s, he applied the same principles to help promote the open exchange of ideas in Communist Hungary, and across Eastern and Central Europe after the fall of the Berlin Wall. While the Foundations started as an effort to help those in countries emerging from more closed or authoritarian conditions, in 1996, OSF launched its first US-based programs; as Mr. Soros wrote in 2006, "America was an essentially open society [but] even open societies are open to improvement." Since then, OSF and leaders of civil society have worked to protect democratic society and its institutions in the US and in over 140 countries around the world.

At OSF, our guiding principle is that the world is imperfect, but that what is imperfect can be improved. With that comes a commitment to examining our own role in the world, a constant questioning as to whether our philanthropy--what we fund, and how we fund it--is responsive to the most pressing issues facing the world as it really is, and not as we perceive it to be. Still, even though we have spent the last two decades supporting US-based efforts to counter what we view as threats to the American democratic project (e.g. the influence of big, secret money on politics, restrictions on the right to vote, the criminalization of poverty, racial disparities in the criminal justice system, a bipartisan tendency toward government secrecy), to date, we viewed that work as part of a project to ensure that a largely sound framework was improved so that it lived up to its promise. As we reflect on conditions a year after President Donald Trump's election, however, we think that the US is experiencing an unprecedented erosion and hollowing out of democratic institutions and norms, and could be derailed from this course of improvement. This prompts us to consider how OSF might work differently in order to allow our civil society grantee institutions to more assiduously protect against further decline.

Together, these shifts in civil society and philanthropy could erect the bulwark needed to counter both the threat of constitutional regression and the more remote risk of a total constitutional breakdown. These reforms are significantly informed by rights organizations and foundations operating in other countries that are contending with threats to democratic government.

What is the problem in the US and how big is it?

Imagine the following scenario: Special Counsel Robert Mueller concludes his investigation by returning significant charges against Trump administration officials, including the president. President Trump fires Mueller and issues blanket pardons for all subjects of the investigation, including a self-pardon. The president then goes on Fox News, declares that the investigation was in fact a coup by Hillary Rodham Clinton, and says that people should rise up against the Democratic party, "fake news," and all forces that would oppose his attempt to speak and act for real Americans. (4)

While the notion above remains fictional, it lies within the realm of possibility. In the last year, largely unprecedented actions--and inaction--of the Trump administration have led us to have to contend with the kinds of challenges to democratic norms and practices that presaged a shift toward authoritarianism in other nations. These include: denigration and intimidation of the media; attacks on minorities and scapegoating of immigrants and foreigners; closing space for civil society (through regulation and attacks and limitations on organizations and the right to protest more generally); manipulation of the electoral system to the advantage of one party; stacking the courts with partisan judges and attacking any other institution that might hold the president accountable; silencing and defunding of political opposition; increasing presence of security forces; and conflicts of interest involving financial gain for the first family, as well as widespread cronyism.

We could draw on a long list of examples from history, but more worrying is the current global spread of right-wing populism that provides context for the events taking place in the US. In democracies old and new, government leaders have rolled back established norms and human rights. Some have used traditional coercive methods such as imprisoning innocent people for dissent or for expressing views freely in news and social media. Others also have subverted democracy by staging "elections" that are rigged, funding news media that are not independent, labeling civil society organizations--and indeed George Soros and the Open Society Foundations--as "foreign agents" or spies, blocking access to the Internet, and other insidious and innovative techniques. These kinds of illiberal activities are occurring to varying degrees, and in vastly different contexts, in Poland, Czech Republic, Turkey, Cambodia, Venezuela, Philippines, Hungary, Azerbaijan, China, and Russia. We appear to be in a period of transnational democratic discontent, where traditional institutions and political parties are no longer able to respond to public need and societal changes, and racism and illiberalism have gained significant ground. (5)

To date, in the US, the threat of authoritarianism has seemed incremental and remote when compared to other regions in which Open Society Foundations operate, including some on the list above. Because the US is the oldest existing nation with a constitutional and representative government, we viewed it as stable, but our governing document, the Constitution, is also thin on particulars. (6) As a result, we are more reliant than most democracies on norms, which, we are now learning, can be easily rendered powerless. This reliance on unwritten rules may make the US more susceptible to what scholars Aziz Huq and Tom Ginsburg call "constitutional regression," that is, a "more subtle, incremental erosion that happens simultaneously to three institutional predicates of democracy: competitive elections; rights of political speech and association; and the administrative and adjudicative rule of law." (7) We view regression as the most likely form democratic decline would take in the US, as distinct from a sudden and complete authoritarian takeover. While its impact may not be as sudden as a coup, constitutional regression over time can have similarly deleterious effects: consolidation of power in an individual or single party; silencing of dissent; a crackdown on rights; or a descent into martial law or military rule under certain extreme, but not unthinkable, circumstances. Even as we at OSF think about how best to deploy resources to push back against constitutional regression, we must bear in mind the need to track and defend against the tail risk of more dramatic authoritarian drift.

At the most basic level, knowing where we are on that democratic-to-authoritarian spectrum requires access to accurate information about what is happening in government. (8) From the earliest days after the election, President Trump made clear his hostility to norms of government transparency and fair dealing, as an unprecedented array of conflicts of interest for Trump personally and many of his close advisors and family members became daily stories throughout the transition period. (9) From those early days, it seemed clear to us that we should not assume that the Trump administration would behave like past administrations. While our government accountability and transparency grantees still use tools that have worked to demand accountability from every administration in recent memory, we also began to appreciate the non-negligible risk that those tools would be useless if President Trump decides to flout norms even more aggressively--by refusing to follow a court order to produce documents, for instance. The erosion of norms seems to have extended to Congress as well, which today regularly advances major legislation without so much as a hearing and routinely expresses...