The Democracy Fix: Q&A with Caroline Fredrickson

The following is an edited transcript of a conversation between Caroline Fredrickson, President of the American Constitution Society and Frank Housh, Esq., ACS Chairman of the WNY Lawyers Group and a member of National Book Critics Circle, about Ms. Fredrickson’s new book, The Democracy Fix. Ms. Fredrickson will be speaking about her book at upcoming ACS chapter events in Northeast Ohio, Chicago, and Minneapolis.

HOUSH: Your book is extraordinarily ambitious in that it enumerates the history of what is effectively the right-wing compromise, or takeover, of key democratic institutions -- and then offers a fix. You describe a decades-long somnambulance by the left while the right co-opted institutions to roll back the New Deal and Civil Rights. I think that's a fair summary of what you've described in your book. You also talked about how you had a role with the Clinton Administration and had a long history on Capitol Hill from that perspective. How was the left lulled to sleep? How did this happen?

FREDRICKSON: Well, I mean, Frank, it's a great question and there's a couple of reasons for that. So, you know, I look at a number of areas in the book from long-standing voter suppression and gerrymandering on the right to the court system, the takeover of the courts, in terms of who the judges are. What is also important is the sort of legal methodology the courts apply, perhaps something people don't think about, but is extremely important. These are the rules in the court systems themselves and they determine who can actually get into the courtroom and enforce their rights in all of these areas. The right recognized that these are crucial battlefields for winning power and keeping power.

On the left, I think there are a couple reasons why we haven't focused on the court system. There is -- I think you used the word “somnambulance” -- it's a great word. I think there's this holdover from the Warren Court where progressives thought that there were some very key decisions that have become very well known to us from Roe v. Wade to Miranda, some key areas where there were some advances.

Without paying enough attention, people are realizing number one that Roe has been so whittled away by the Casey decision (editor’s note, Planned Parenthood v. Casey, 505 US 833 (1992)), and then others to follow, but also criminal procedure rights, obvious ones like the campaign finance area where you have Buckley and then you had Citizens United and whole bunch of other cases in between and subsequent where the courts have been moving very, very steadily to the right because of this conservative takeover of the courts and the left has just been not been focused.

There was a sort of hangover like, “oh the Warren Court that's still having an impact.” Well, it's not. It's been all but erased, and the fact is that because it's not a direct threat, usually what they've done is circumscribed it, or significantly cut way back, or made the court rules so difficult to navigate the people cannot actually enforce their rights under these laws, so it's much less prominent.

I lay this out in the book that you know, they [the right] were very conscious of the fact that if you did it through the court rules and through the court system generally, it was like doing it in the dark of night. Whereas if you decide, you know, if the right had said, “we really hate Title VII” say, “we really disagree with this whole set of New Deal and civil rights laws” and if they had tried to directly repeal, people would have been up in arms.  Instead they just basically dismantle them by making them impossible to enforce.

Look at Shelby County, this infamous decision where Chief justice Roberts basically destroyed the Voting Rights Act. But he didn't say “the Voting Rights Act as a whole is unconstitutional.” It's just the heart of it got ripped out. So, the Voting Rights Act is still there but it’s harder to organize around [the decision] than it would be to say the Voting Rights Act has been repealed. Right? So that's a court decision. It made it much harder to enforce voting rights, but it's still on the books. So, you know, a lot of things happened.

I think the other thing is that people have to recognize, you know, mostly for good but to some extent for ill, the left and right are very differently situated in terms of the movements. I say for mostly for good, you know, the right is very hierarchical, top-down and driven by their plutocrats, the Koch Brothers, the Mercer Family, the Bradleys, the Coors Family, etc., you know, they really dictated what would happen on the right.

They have very unified funding structures and they said “we're going to fund the Federalist Society.” “We're going to fund the Heritage Foundation,” and you know associated legal groups, Pacific Legal Foundation, you know, Thomas More, you know, etc. [These groups are going to] tear down the foundations of what we see as the kind of liberal enterprise, the kind of progressive policy-making successes. We're going to tear that down for these pieces that we build up. We're going to fund ALEC which is the American Legislative Exchange Council which develops model legislation, including “Stand Your Ground,” and fracking, and vote suppression, and advancing gun laws, you know in a very aggressive position on access to guns so they come together and they agree on those, you know, institutionally and we're going to take over the court system.

The Federalist Society and the Heritage Foundation are going to direct what the judges do and say through the kinds of judicial junkets that they provide for judges to “teach them” about why class actions are bad or why different areas of the law should be limited.  And on the legislative front what are the [preferred] bills and then they also support candidates on the side not in their philanthropic but in their personal capacity. So, it's very unified.

On the left, I think it's mostly for good. We're much more diverse.  People come to progressive politics with a passion, sometimes against their interests, right? Sometimes it's just something for a moral good and for the good of the country -- you want to protect the environment and these public goods. We want to make sure as many people as possible who are eligible to vote get to vote. We want to make sure that women have access to reproductive health care. We want to make sure all Americans have access to healthcare. We wanted an immigration system that's fair and just. We want an education system where all people can come up with great opportunities and you know, so that's a very different kind of environment and so I'd say part of it is that we come to politics and policymaking with a passion for issues, and that's great except that issues aren't systems. Issues don’t get you power and hold power.

HOUSH: You talk about “the left,” and maybe don't intend to because it's just an issue that you couldn't discuss in the book because of limited time and space, but “the left” as if we all know what that means and it’s a monolithic thing. I'm a Bernie guy, supported Bernie Sanders in the last election over Hillary. When Hillary got the nomination, I publicly said to all of my friends, “Well, you know, we fought, and we lost. Let's all get behind Hillary.” And that was regarded to be, [by] a lot of my close friends whose opinions I respected, as a betrayal. “How can you support her? How can you do this?” My response to them was, I regard Hillary's views pretty much as the 1956 Republican platform; that said, she's smart, she's experienced, and she would be a better steward of our country than Donald Trump. I used to say, “I'd vote for 1983 Buick Regal on blocks before I would vote for Donald Trump because I believe that that rusted, crappy car that was bad when it was built would do a better job representing our nation than Donald Trump.”

FREDRICKSON: As opposed to Donald Trump, “unsafe at any speed.”

[laughter]

HOUSH: I'm going to I'm going to suggest a slightly alternative reason as to why the left was asleep at the switch. Chris Hedges discussed it in a book of his (Death of the Liberal Class, Hachette, 2009). Let’s call it “the corporate left,” “the incumbent left,” “the establishment left.” To me that certainly means Clinton and Obama. The left, by taking the same public money that the Republicans take, were very complicit in the corporatism of today.

FREDRICKSON: I totally agree with that. Although I think it's more of a symptom than a cause, and I'll tell you why. [I agree] one hundred percent because I worked on Capitol Hill for a long time and I saw all of the special interests that came in to wine and dine. They came in to wine and dine the Republicans and they came in to wine and dine the Democrats. Absolutely.

The airline industry, Boeing, all of the big oil companies, on and on, they're there and they're there to make sure that both sides like them. They like the Republicans more, and give them more money, but because of our campaign finance system, this is something that Democrats absolutely plan to do.  I'm glad that they now seem to be resisting somewhat, but it's a hard thing to resist.

I had to raise money for candidates as a chief of staff and it's easy to fall into the trap. It's very difficult to resist because you're at a disadvantage. But I would say one of the things they did -- and I trace this in my book -- right from the advent of the campaign finance laws post-Watergate . . .

HOUSH:  . . . when you say the thing “they” did, you mean the Republicans?

FREDRICKSON: The right. Conservative interests. They wanted to go right after the post-Watergate reforms on campaign finance. [That] was absolutely one of the number-one areas that they wanted to tear down. With a very conscious and outcome-oriented jurisprudence -- and let's call it what it is. It is outcome-oriented. The idea that the First Amendment somehow equates speech and money [and] that that was anywhere in the heads of the founding fathers, you know, the so-called “originalist approach” is just a bunch of baloney.

What they did was they formulated a new theory of the First Amendment so that when the Watergate reforms came through, [the right] immediately thought about how to tear them down and that's what the right-wing legal movement was very clever at doing was putting a label on something that was going to give them the outcome that they wanted. They happen to call it “originalism” in that case, you know, and sort of concocted this theory.

So, we got Buckley v. Valeo and then you get all those cases afterwards culminating in Citizens United. As a result, they corrupt the Democrats along the way, because it's a Supreme Court decision. It's constitutional. Congress can’t overturn it. They can [only] try and work around it. So, it's not to say I don't blame Democrats for falling into the trap and being venal and, you know, being corporate Democrats. However, I really do think it's a symptom and not a cause because it was all part of the plan. It all makes sense to create an environment in politics where money is the dominant factor.

HOUSH: In your book one of the questions that the kept coming up for me, and maybe other people who read it had the same question: do we picture “the plan” as sort of a nefarious conspiracy where people in a secret room had a secret playbook that everybody's playing by, or did a whole group of powerful people have a common set of goals and principles without an express “conspiracy?“

As a criminal defense attorney, I have spent a lot of time thinking about conspiracy, and I’ve defended a lot of RICO cases in federal court. One of the things I would say is if you're making the allegation that my client was a co-conspirator, you have to prove that he was conspiring with everybody else in the same conspiracy.

FREDRICKSON: I know you're not a fan of Hillary Clinton, but she was right to say there is a vast right-wing conspiracy. Although it's not so vast. It’s vast in terms of resources, but it really was this group. So as I trace in the book, it’s history that's familiar to some people but I think it deserves to be retold. The future Justice Lewis Powell before he was appointed to the Supreme Court was a lawyer for big tobacco. He was based in Richmond, and he was very active with the [United States] Chamber of Commerce.  He served on one of their major committees and he was observing what was happening on the legal landscape. This was 1971.

[Powell] saw some real successes coming from firebrand lawyers like Ralph Nader who would were attacking dangerous products, including cars. Since we talked about “unsafe at any speed,” they really had an incredible impact on addressing some of the major corporate malfeasance that had been allowed to go unchecked, and it was products, it was also the environment, you know, pollution.

This was a time when there was this real upsurge of activism where Congress adopted strong environmental protections, the Environmental Protection Administration was set up by President Nixon. Ralph Nader had won cases against the car industry. You know that they used to say, “what's good for GM is good for America,” and all of a sudden people started thinking, you know what is good for GM isn't so good for America. They're making cars that are killing people and making a profit off of these deaths.

Lewis Powell, Mr. Tobacco, foreseeing what was going to happen with tobacco litigation, he proposed to the Chamber of Commerce that they needed to have this real collectivist approach to policymaking and he wrote this memo that laid out these spheres -- the legal sphere, the legislative sphere, the media, and education.

HOUSH: In your in your book you talk about the Powell memo was the beginning of it. So, the Powell memo was the playbook and do you see that even from the creation of the of the Powell memo to today that all those same right-wing parties are still adhering to that there have been no amendments to the playbook?

FREDRICKSON: There's always going to be some flexibility, but there has been some really interesting research done around conservative philanthropy . . .  “Philanthropy” seems like too nice a way to describe it . . .  how they give money and get tax benefits and how they keep it secret.

The conservative money has been very organized. There has been research done on their donor side, you know in terms of the building institutions and they're very coherent and over a long period of time they have invested in the same organizations -- and it is those big players. It's like the G7 or something like that they get together, and they decide “here's where we go.” They actually do get together, and they put their money in these institutions, and they stay there. Now, of course, there's lots of individualized giving. The Kochs are maybe more libertarian and the Mercers are more religious... The major investments have remained very constant over time; they stay in for the long term.

We opened with you asking me about the difference between the right and the left and that's another very big distinction. It may be because [the right] come so out of the corporate and the corporate sector or that they have their business plans and they stick with them. Whereas on the left, you know, everybody's got to be more creative than the other person, and so every year there's a new idea, a new organization, a new strategy, and we have to meet metrics, and donors only give for a year, and then you have to you know issue a report. On the right it's like “OK, come back fifteen years from now and show me what you've done” because they recognize that building institutions takes a long time.

HOUSH: It might be easy to lose hope, especially this morning when we heard  powerful testimony about the abject corruption of the Trump Administration by a former ethical officer who was talking about unprecedented, open contempt for the for the rule of law and democratic norms, so much so that Trump officials mock them in public (editor’s note: This refers to ACS Convention 2019’s Plenary Panel discussion, “After Trump: Reforming Government and Repairing Democracy”).

Let me just make an observation where there is room for hope. You mentioned the Alliance Defending Freedom, the people who are attacking LGBTQ rights. I feel very much that that is a key example of how there's so much dissonance between the right-wing social program and the way that most people actually feel.

The notion of rolling back LGBTQ rights is frankly patently absurd to the people in my community, comparatively conservative upstate New York. I think that if the right has legislative success wins in the courts many, especially younger, people cannot and will not abide by their radical social agenda. Maybe this cognitive dissonance will be their undoing.

FREDRICKSON: I share your view that there is a real disconnect, or dissonance, between where the right-wing wants to take us, which is backwards, and where the rest of the country is, but we just have to look at the Trump Administration and recognize that is a fact that everything that they are doing is in service of this minority of the population that really thinks the civil rights movement, the New Deal, the Women's Rights movement, and the progress of the LBGTQ movement should be undone.  So, they are fighting the forces of progress. Absolutely.

But it's the short-term and medium-term that really worries me. You know the federal court system has lifetime appointments. We've seen President Trump to appoint two [Supreme Court] justices who are relatively young. They’re going to stay on the court for the rest of my life, assuming they stay as long as Justice Stevens or some of the others. I think it's a profoundly dangerous moment for democracy. And Donald Trump is moving not just Supreme Court Justices, but judges at the appellate court level and the trial court level in the federal system to the extent where he's becoming a record-breaking president. And these are judges who are radical; they are completely out of step on these issues. We're going to see some setbacks not just for where we expect, reproductive rights and the regulatory state -- that is clean water that we drink and clean air we hope to breathe, which will be severely affected by rulings of these judges as they dismantle very important regulations. LGBTQ rights are very much on the line.

[Trump judges] are destroying regulations for access to health care with the so-called “conscience clauses” that allow doctors and other health care professionals to opt out of treating people who basically they don't like, and they can claim some religious reason not to actually perform their duty as a medical professional. So, it's healthcare, but it's access to jobs. This is a Supreme Court that has shown itself very predisposed to overturn very recent precedent. So, Obergefell (editor’s note: Obergefell v. Hodges, a 2015 Supreme Court case guaranteeing same-sex couples the right to marry), maybe they won't go quite that far. But how will they chip away at rights?

I actually think it's a real danger for a democracy when you have this type of a lifetime appointment of people who are completely representing a minority viewpoint. And the rest of the population can't really do anything about it through the democratic process.

HOUSH: We’re seeing almost two nations. I live in New York, a blue state. The state senate was briefly controlled by a coalition of Republicans and turncoat Democrats but that’s over. It’s completely blue. We're passing a lot of progressive legislation, some of it not quickly enough or progressive enough for my taste, but that's my problem.

Compare that to the south from Texas to Florida where you’re seeing these radical abortion bans simultaneously with legislative statements of protection of women's right to choose in other [blue] states. So maybe what we're seeing are Trump values coalescing in in these southern states and wealthier, more progressive states like California and New York which are better able to protect themselves.

FREDRICKSON: To some extent. That sounds a little hopeless though for people who might live in Mississippi or Louisiana. It's not simply a red state/blue state phenomenon. There are a lot of localities around the country in variety of different states that have actually made democratic changes.

My book The Democracy Fix is not about fixing the Democrats, although they need to be fixed. This is non-partisan. This is about the important reforms that need to take place for those of us who believe in the future of this country who believe that the Constitution is the one of “We the people in order to create a more perfect union” and not the Constitution of “We the plutocrats.”

There were states that raised the minimum wage throughout initiatives in the last several election cycles that are as red as can be. There are states that have worked on other kind of progressive policies through mechanisms where maybe the state legislature is totally captured and gerrymandered to, you know, to a point where there's nothing that can happen, where the citizens have been rising up. [In my book I talk about] fair elections and ensuring that the voters are actually getting to pick their politicians rather than politicians picking their voters, which is a way to talk about gerrymandering.  When politicians carve up districts so that the party in power can ensure that it always stays in power for a fairly long period of time even if the majority of voters in that state wants other people, you know, that's something that is a nonpartisan issue.

And so there have been conservative states that have thought “wait, we don't want a corrupt system.” I mean that is like the essence of corruption, right? I'm going to draw my district so that I keep all the areas where I'm definitely going to get the highest support and we're going to draw away support from other people who might, you know, be elected in a different district. So, you know, it's not as though Democrats haven't done some of this. Maryland is a case in point. However, Republicans have just done a whole lot more of it.

But the reaction has been nonpartisan. In Michigan, they've passed redistricting about initiative as well as Arizona, a bunch of other states, which has set in motion a process to take this out of the hands of the state legislatures.

HOUSH: Let me just make a comment on that. I'm going to be teaching a class on legislative redistricting of the State University of New York at Buffalo School of Law. What you said of course is completely true. But what I will try to teach my students is take that to the next level, what are the effects of that?

Here is a simple example. You have 200,000 people equally split between Democrats and Republicans. You need to create two legislative districts. If you ask the average person, they'd say well each one has 1000,000 people, 50,000 Republicans and 50,000 Democrats. That makes sense. That would be fair, and they would likely elect a moderate. What you and I know would happen is one district would have 67,000 Republicans 33,000 Democrats; the other would have 67,000 Democrats and 33,000 Republicans. They would be safe seats. So, when the 33% of each party thinks that they their vote doesn't count they’re right. That's exactly what the districts were calculated to do.

What that means is when these [legislators] go to the statehouse they will get all of their political funding from the right or from the left. They will have no reason to pay any attention to the 33% percent of the people in their district, those people who were disenfranchised. They will caucus with like-minded legislators, creating polarization, and instead of talking to each other we talk past each other in media echo chambers to people with whom we agree, reinforcing our own viewpoint.

FREDRICKSON: The two-district example is easy to do mathematically, but what often happens, and I know you'll talk about this in your class, is cracking and packing. That's where you take part of a district that might be your 66%. You make it 80%. You take the Democrats out of one district, as it’s already such a safe seat. You construct your Republican districts so that you move all the Democrats into that district and so you create, in essence, a “super-safe Democrat” seat, excessively Democratic. That really neuters the ability of Democrats to have an impact because where they could have had two representatives with two districts that had maybe 52%, now they have one district that instead gets 80% and then the Republican districts are much safer seats.

Now there are all sorts of algorithms of technology, these map-making tools that, in a very fine, detailed way, allow maps to create districts that are absolutely going to favor the Republican party. Again, it's a nonpartisan issue, but the Republicans are much better at it, but much more aggressive at it.

HOUSH: A final question. What would you say is the most sort of hopeful thing that you can tell a reader who agrees with your assessment? How should they proceed?

FREDRICKSON: Obviously, we have to have hope and I do lay out a plan. Frank, you said earlier that a lot of what the right is pushing is sort of cognitive dissonance compared to where America is. These types of reforms that I'm talking about are hugely popular. Americans believe deeply that we should have -- apart from this minority doesn't care about democracy -- for Americans who believe in democracy, and that's the majority of us -- believe that we should have a system where you have fair elections, where you have fair courts, and people get a fair shake.

So, the kinds of policies that put that in place are the ones that citizens can move. They can be involved in making those changes. As I said, there are ballot initiative possibilities, there's local government. But when there's an opportunity, hopefully through the next election, for progressive change that’s the time when people should not be passive, cannot be complacent.

Look, I don't trust “capital D” Democrats to do the right thing -- to establish fair districts, establish fair elections, that is, make sure that people can vote who are eligible to vote. We need to make sure that former felons have their rights restored. We need to make sure that we have voting at home as much as possible. We need automatic voter registration. We need to care deeply about the court system and make sure that we don't forget that that's a branch of government that we need to invest in. Judges really matter. For my organization, the American Constitution Society, this is one of the major areas of our work.

We cannot forget that issues are not going to keep us in power, and keep moving us towards a progressive future. Issues come after we win power first. We need to set up the systems that are going to ensure that we have a fair and just democracy.

HOUSH: We'll leave it at that. Thank you, Caroline. Your wonderful book is The Democracy Fix. Thanks so much for coming in to talk.

The conversation took place during the 2019 ACS National Convention in Washington, D.C., June 6, 2019- June 8, 2019.

Campaign Finance, Democracy and Elections, Election Law and Administration, Redistricting, Voting Rights