by Jean-Jacques Subrenat

November 29, 2022

Are U.S. Institutions Adapted to the Challenges of our Times?

While at the White House, Donald Trump undermined the institutions designed to uphold the Rule of Law. The January 6^th 2020 siege of the Capitol in Washington was an attack on the foundations of democracy, and its seismic ripples were quickly felt in Europe, where populist politicians in France, Germany, Hungary, Italy, Poland, Sweden felt vindicated. Clearly, the issue here is not just party politics, it is more deeply about democracy and the Rule of Law.

In the U.S., some institutions set up by the Founders are no longer adequate to deal with contemporary trends. For instance, the voting system in the U.S., set up in the late 18^th century, is no longer appropriate for most modern democracies. In the 21^st century, the U.S. President is still chosen not by “We The People’’, but by a cascade of proxy delegates. A more tragic example of antiquated legislation is the Second Amendment: if due punishment is served on the perpetrator of a gun crime, little is done to eliminate the risk itself, simply because firearms are so easily available.

Only U.S. citizens have standing to accept or reject the domestic policies of their Congress and President. But over the decades, positions taken by Washington on global issues have had an impact well beyond the borders of the United States. After the Second World War, the idea of a United Nations Organization stemmed from a variety of initiatives, but the unstinting support of the United States was a determining factor in its implementation. The U.S. also played a seminal role in the international monetary system, as also in many aspects of research, industry, trade, transport, technology, or public health. But in the same period, some developments in the U.S. also had a negative influence abroad: the McCarthy years fostered political extremism, the Domino Theory tested in South-East Asia led to the military defeat of the U.S. in Vietnam, wanton de-regulation caused the world financial system to collapse in 2008.

More recently, Trump’s repudiation of multilateral trade agreements, some of which were initiated by Washington in the 20th century, created instability in international trade as well as in global finance. Similarly, by pulling the U.S. out of the Paris Agreement aimed at combating climate change and at adapting to its effects, Donald Trump created widespread doubt about Washington's ability, and even its willingness, to address some of the major challenges of our time. His successor in the White House has re-established U.S. credentials on averting climate change, but this could be short-lived if the Republican Party were to regain dominance in the legislative branch of government.

Trump demeaned the European Union (E.U.) and its Member States, even designating them "a foe" of the U.S. He, and frequently his purveyor of concepts Steve Bannon, interfered in the national debates of E.U. member states. They openly called upon Member States of the E.U. to emulate Brexit and withdraw from that pan-European organization, in an unprecedented case of gross meddling. On more than one occasion, Trump spoke disparagingly of elected leaders (e.g. British Prime Minister Theresa May, German Chancellor Angela Merkel) while at the same time fawning to Russian President Vladimir Putin, or making an envious if humorous remark about the henceforth unlimited term of office of China's Head of State, XI Jinping.

President Trump threw the North Atlantic Treaty Organization (N.A.T.O.) into disarray by mocking its basic tenets of trust, loyalty and mutual assistance. It is one thing to call for calm relations between Washington and Moscow, but quite another to do so at the expense of democratic institutions, especially at a time when N.A.T.O. views Russia as a renewed threat in Europe, as made clear by Putin’s intervention in Ukraine. Of course, no reasonable person would wish to resurrect the Cold War. But when Trump met with his Russian counterpart in Helsinki (16 July 2018), he publicly rejected warnings from U.S. and Allied intelligence about past and ongoing Russian interference in Western election campaigns. Instead, he lent credence to Putin's bland denial, even ordering his interpreter and other staff to destroy notes of their conversation. Immediately reacting to that, several senior U.S. political figures stated publicly that they regarded Trump's attitude towards Putin as an act of betrayal, or even of treason.

Naturally, the unraveling of democracy cannot be attributed to Donald Trump alone, even if some of his decisions, and more generally his actions as Head of State, have caused severe damage. At the time of its Founders, the U.S. shone a new light, which since has waned. Perhaps the U.S. might find it useful to take stock of its institutions and political mores, in order to update its governance.

What is now at stake is more than just the future of the United States of America: it is the preservation and improvement of democracy on a global scale. For leaders, institutions, civil society and ordinary citizens who uphold the Rule of Law, there is now an urgent need for reform, a call for carrying out democracy in a more effective and thorough manner.

In the U.S., is Democracy Just a Commodity?

In 1832, just after visiting the United States, Alexis de Tocqueville published On Democracy in America, and some of his findings remain relevant to this day. In the introduction, he remarked:

Amongst the novel objects that attracted my attention during my stay in the United States, nothing struck me more forcibly than the general equality of conditions. I readily discovered the prodigious influence which this primary fact exercises on the whole course of society, by giving a certain direction to public opinion, and a certain tenor to the laws; by imparting new maxims to the governing powers, and peculiar habits to the governed.

Times have changed since Tocqueville. The U.S.A. emerged from two World Wars as the most prosperous country in the world, but also as a beacon of democracy. But today, viewed from Europe, several aspects of governance in America are in need of improvement. To remain relevant, the U.S. needs to ensure a new institutional balance between the three branches of government, it must modernize its electoral system, and it needs to tackle the perverse effects of its ‘’spoils system’’.

In the U.S., How Independent is the Judicial Branch?

In the drafting and adoption of the constitution of the United States, checks and balances were designed to ensure the independence of each branch of government. That balance is no longer ensured.

During the Trump presidency, more than under most of his predecessors, this separation between the three branches of government was skewed, and the independence of the judicial was sorely tested. Some commentators have claimed that the framers of the constitution granted the judicial branch co-equal powers at the same level as the other two, although in fact the constitution does not explicitly mention co-equal powers. But beyond this dispute among U.S. constitutional experts, today in most democratic countries the expectation is that the judicial branch shall be completely independent from both the executive and the legislative branches. It also implies that the judicial system cannot be subservient to political parties or their appointees.

A comparison with judicial systems in other democracies brings to light some interesting differences, regarding their remit and the way judges are appointed. France, Germany and other modern European states have a Constitutional Court which deals solely with constitutional matters. By contrast, the U.S. Supreme Court is called upon to settle a variety of judiciary disputes, in addition to interpreting the constitution.

The process for appointing Justices to the U.S. Supreme Court is predicated on a permanent competition between the Democratic and Republican parties. In theory, such a binary system does not lessen the qualifications and personal integrity of the Justices thus appointed. But it does ultimately call into question the validity of a system which, as under President Trump, sought to extend the powers of the executive, to the detriment of the two other branches.

In June 2022, the Supreme Court overturned Roe vs. Wade in what is viewed as an egregious case of judicial subordination to political power. This case, which has been extensively researched and commented, will not be discussed here.

Does the U.S. Electoral System Need a Serious Update?

Seen from outside the United States, the system set up to elect the president is no longer a model of fairness and efficacy. Over the past decades, presidential elections have underlined how unreliable the process actually is. Remember the re-election of the younger Bush, hinging on hanging chads, those incompletely punched holes in paper cards coming out of voting machines? This needs to be called out bluntly: the U.S. electoral system, with its multiple layers of proxy voting, cannot be considered a model anywhere in the world. Even the U.S. needs to adopt universal suffrage under which each citizen casts one vote: nothing less, nothing more, and with no intermediary steps or proxies.

Just imagine: when members of the U.S. Senate or House of Representatives, on a visit to say Iraq, Libya or Myanmar, vaunt the merits of the American voting system as a model for those fledgling states, how credible can they be?

The complexity of the U.S. system, with its Caucuses and Primaries, with its Delegates and Electoral College, would be considered antiquated, idiosyncratic and too unreliable to ensure fair representation in any modern state. But if the U.S. electoral system seems unworkable in places like Baghdad, Tripoli or Yangon, then we must ask: is it worth preserving in the United States, and for eternity? Unfortunately, there is no painless fix, and it may even require reforming the constitution, rather than just adding to the current list of 27 amendments already adopted.

What exactly does the U.S. constitution prescribe for the election of the chief federal executive, to serve as the nation’s head of state and head of government? Surely, by anyone’s count, this is one of the most powerful political positions in the world.

Primary Elections and Caucuses

The U.S. constitution does not specify in full the process by which candidates are nominated for the presidential election; that task has been left to the two political parties, each developing its own procedure over time. As a result, an elaborate system came into being throughout the fifty states of the Union, without any concern for homogeneity: some are content with primary elections, others hold only caucuses, and some resort to a combination of both.

Adding to the confusion, the electoral calendar is protracted over almost a year: primaries and caucuses are generally held in January and February of the election year, and last till June, leading up to the election itself held in November, the elected president then assuming office in January of the following year.

The Electoral College

In the U.S. constitution, article 2 section I, stipulates:

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President

Experts still debate how the idea of an electoral college emerged. There is a suggestion that James Madison, known to have defended the pursuance of slavery, gave some thought to a direct system, which he referred to as ‘’immediate choice by the people’’. In the quote below (where ‘’Negroes’’ refers to slaves) he claimed that “immediate choice” would not work uniformly throughout the United States:

There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.

Seen from outside the U.S., it is disquieting to note that the country which, after World War II and until the end of the 20th century, was seen as The Leader of the Free World, still relies on an antiquated system to nominate and elect the head of its executive branch.

The only other large democracy to have a lengthy electoral process is India, but that country’s large population, and its much poorer infrastructure, presents a challenge for their parliamentary elections on quite another scale.

Some Perverse Effects of the ‘Spoils System’

For all practical purposes, the way U.S. ambassadors and other high public servants are appointed, shows some similarity with practices in authoritarian regimes. The interesting yet worrying thing is that in the U.S. such appointments are systematic: typically, the freshly minted ambassador has been a contributor to the election campaign of the president, usually had no diplomatic experience, and speaks mostly English. There are exceptions, as in Seoul, where a recent U.S. ambassador was a former admiral of American-Japanese descent, commanded the Pacific Fleet, has an impressive record in global strategic matters, and presumably did not donate to the Trump campaign.

On the positive side, and in most cases, the host country may be flattered to receive a U.S. representative with a direct line to the president in Washington. But beyond the profile of individuals thus chosen, the U.S. method carries some larger risks, as dramatically illustrated in a recent case. When President Trump chose fellow property developer Gordon Sondland as U.S. permanent representative to the European Union, arguably one of the most important positions available, he valued having in Brussels someone loyal to him personally. We know what followed: in his testimony to the House of Representatives about the Ukraine Scandal, Sondland confirmed that his interventions in Ukraine were at the direction of Trump himself. And having incurred the displeasure of the president, Sondland was promptly removed from Brussels.

This is not to suggest that political appointments occur only in the United States, or that they should be avoided altogether. In other democracies, political appointments fluctuate between the very unusual to the occasional. In the British tradition, most ambassadors come from the foreign service. In France, presidents have sparsely used ambassadorships as rewards: Mitterrand appointed a medical doctor and political ally in a series of postings (Seychelles, Tanzania, Thailand). Sarkozy sent as ambassador to Tripoli a young and trusted assistant who had arranged Gaddafi’s state visit to France, an episode which came under public scrutiny. Macron appointed his predecessor Hollande’s ex-partner, Ségolène Royal, as ambassador-at-large in charge of Arctic and Antarctic negotiations (but that was not a form of banishment, as she continued residing in France). The list of countries usually sending competent professionals to important places has not changed dramatically over the decades, and they are well known.

But diplomacy is far from being the reserve of Western powers. Since the 1990s, China has played a growing role in global affairs (as shown in its ‘’Road & Belt Initiative’’) as well as in many capitals around the world. In fact, an overview of diplomacy today places China on an equal footing with the U.S. when considering the single-mindedness of its policy objectives, the number of its representations around the world, and the means at their disposal.

Properly Implementing Democracy

I have given a few examples of a growing mismatch between purpose and implementation, between the bold 18^th century innovations of the U.S. constitution, and the requirements of today’s complex challenges.

Seen from across the Atlantic, attacks on the Rule of Law in the U.S.A. are having an impact on the political mores of other democracies. And that is why, more than ever, there is a need for heightened public awareness, not only in order to preserve the safety and prosperity of nations, but to jointly set the parameters of a more thorough implementation of democracy.

- - - - - - - - - -

Jean-Jacques Subrenat, retired French ambassador. Served on the Board of ICANN. Distinguished Fellow, Institute for Global Negotiation (Zurich). The views expressed here are his own.