Quality of Democracy
#15Key Findings
Despite increasing tension over the conduct of elections, the United States falls into the upper-middle ranks (rank 15) with regard to democracy quality. Its score on this measure has declined by 1.0 point relative to 2014.
Voting rights have become a contested issue, with the Republican party seeking to suppress low-income and minority votes. Democrats have failed to pass a major voting-rights act through Congress. So-called Super PACs can make unlimited expenditures on behalf of parties or candidates. Candidates from both major parties increasingly rely on independent expenditures from rich individuals or businesses.
The media sector is highly polarized, but pluralistic. The new administration has launched a number of major civil rights investigations, and strengthened protections for LGBTQ+ individuals. Biden came into office promising to strengthen democratic norms, and has enhanced legal certainty.
The Supreme Court appointment process has become intensely politicized. An expert reform commission has recommended term limits for justices. President Trump disregarded laws and established practices in order to profit personally from the presidency. Biden has pushed for new anti-corruption measures.
Voting rights have become a contested issue, with the Republican party seeking to suppress low-income and minority votes. Democrats have failed to pass a major voting-rights act through Congress. So-called Super PACs can make unlimited expenditures on behalf of parties or candidates. Candidates from both major parties increasingly rely on independent expenditures from rich individuals or businesses.
The media sector is highly polarized, but pluralistic. The new administration has launched a number of major civil rights investigations, and strengthened protections for LGBTQ+ individuals. Biden came into office promising to strengthen democratic norms, and has enhanced legal certainty.
The Supreme Court appointment process has become intensely politicized. An expert reform commission has recommended term limits for justices. President Trump disregarded laws and established practices in order to profit personally from the presidency. Biden has pushed for new anti-corruption measures.
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How fair are procedures for registering candidates and parties?
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Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
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A few restrictions on election procedures discriminate against a small number of candidates and parties.
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Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
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Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
With rare exceptions, procedures for registering parties and candidates are fair and nondiscriminatory. State governments determine the requirements for ballot access. All states require a party or candidate to collect signatures on a petition and to file the petition by a specified deadline. Parties and candidates who meet the requirements are included on the ballots. In some cases, the ballot-access requirements may be a burden for smaller parties or independent candidates. Ballot access is organized by the states and the requirements differ between the states. They all require a specific amount of signatures to get on the ballot.
In 2021, three states changed their Ballot Access requirements (New Jersey, New York and Virginia). In all three states, the requirements to ballot access were reduced. In New Jersey, the files can now be sent in electronically while New York has lowered the petition signature requirements for unaffiliated candidates, and Virginia lowered its signature requirements for statewide petitions.
In 2021, three states changed their Ballot Access requirements (New Jersey, New York and Virginia). In all three states, the requirements to ballot access were reduced. In New Jersey, the files can now be sent in electronically while New York has lowered the petition signature requirements for unaffiliated candidates, and Virginia lowered its signature requirements for statewide petitions.
To what extent do candidates and parties have fair access to the media and other means of communication?
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All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
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Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
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Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
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Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
In a broad sense, media access is fair, although the U.S. media exhibit some significant biases. Publicly funded media have access to relatively modest budgets, most of which is financed through community support. Most media organizations are privately owned, for-profit enterprises, independent of the government and political parties. Some media, such as the MSNBC cable news network, have a strong liberal and Democratic party bias. Others, most notably Fox News Channel, have a fervent conservative and/or Republican bias.
It is important to note that during election campaigns, media messages are often dominated by paid advertising. Such advertising can reflect massive imbalances in the fundraising capabilities of the opposing candidates or parties, with a modest, inconsistent advantage for the Republicans.
Citizens more often access political campaign information through social media (i.e., Facebook and Twitter) as often as through traditional news sources, even though social media have proved to be highly effective in efforts to spread misinformation. Despite ongoing political pressures, social media companies such as Facebook and Twitter have long been reluctant to act in order to fight the spread of disinformation. Yet, especially in the aftermath of the COVID-19 pandemic, they have been forced to take more actions to address this increasingly prominent issue.
Still, the unprecedented biases and distortions found within right-wing media outlets and the vulnerability of social media to misinformation suggest that citizens no longer enjoy uncompromised access to reliable information.
Citations:
https://www.brookings.edu/research/how-to-combat-fake-news-and-disinformation/
It is important to note that during election campaigns, media messages are often dominated by paid advertising. Such advertising can reflect massive imbalances in the fundraising capabilities of the opposing candidates or parties, with a modest, inconsistent advantage for the Republicans.
Citizens more often access political campaign information through social media (i.e., Facebook and Twitter) as often as through traditional news sources, even though social media have proved to be highly effective in efforts to spread misinformation. Despite ongoing political pressures, social media companies such as Facebook and Twitter have long been reluctant to act in order to fight the spread of disinformation. Yet, especially in the aftermath of the COVID-19 pandemic, they have been forced to take more actions to address this increasingly prominent issue.
Still, the unprecedented biases and distortions found within right-wing media outlets and the vulnerability of social media to misinformation suggest that citizens no longer enjoy uncompromised access to reliable information.
Citations:
https://www.brookings.edu/research/how-to-combat-fake-news-and-disinformation/
To what extent do all citizens have the opportunity to exercise their right of participation in national elections?
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All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
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The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
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While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
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The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
American elections are administered by the states but subject to regulation by the federal government in order to protect citizens’ rights and other issues. In many states, convicted felons are not eligible to vote. Non-citizen residents are not permitted to vote, although permanent residents are encouraged to become citizens. Various forms of racial discrimination against blacks were widespread in many of the southern states before the Voting Rights Act of 1965. Thanks to the Justice Department’s aggressive enforcement of the act, racial discrimination in the administration of elections was largely eliminated by the 1990s. But in 2013, the United States Super Court held it is unconstitutional to use the coverage formula of the Voting Rights Act, thereby abolishing the control function of the Justice Department in case of electoral reforms in southern states.
As a result, Republican officials in many states have engaged in or attempted to engage in overt efforts to reduce the numbers of black (and sometimes Latino) voters. Often under the pretext of preventing voter fraud, Republican-controlled legislatures in over half of the states have enacted or considered measures that have made it harder for some groups to vote. Federal courts have struck down or delayed the implementation of several such state laws but have also declined to delay others. In recent federal election cycles, registration procedures were subject to considerable controversy, as heavy-handed voter suppression efforts were observed in many Republican states. Some Republican-controlled states reduced the number of polling places, resulting in several-hour waits in minority and low-income areas. The Trump Justice Department did not challenge such voting restrictions but, during the Trump years, federal courts, responding to appeals brought on by other parties, blocked several of these restrictions. Still, the Republican party has adopted as a standard party strategy the suppression of low-income and minority votes by any legal means. Democrats at the state level and in Congress as well as the Biden administration have criticized and mobilized against this strategy. Yet, as of late January 2022, the lack of a significant Democratic majority in the Senate stalled the enactment of major federal voting rights legislation.
As a result, Republican officials in many states have engaged in or attempted to engage in overt efforts to reduce the numbers of black (and sometimes Latino) voters. Often under the pretext of preventing voter fraud, Republican-controlled legislatures in over half of the states have enacted or considered measures that have made it harder for some groups to vote. Federal courts have struck down or delayed the implementation of several such state laws but have also declined to delay others. In recent federal election cycles, registration procedures were subject to considerable controversy, as heavy-handed voter suppression efforts were observed in many Republican states. Some Republican-controlled states reduced the number of polling places, resulting in several-hour waits in minority and low-income areas. The Trump Justice Department did not challenge such voting restrictions but, during the Trump years, federal courts, responding to appeals brought on by other parties, blocked several of these restrictions. Still, the Republican party has adopted as a standard party strategy the suppression of low-income and minority votes by any legal means. Democrats at the state level and in Congress as well as the Biden administration have criticized and mobilized against this strategy. Yet, as of late January 2022, the lack of a significant Democratic majority in the Senate stalled the enactment of major federal voting rights legislation.
To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?
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The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
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The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
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The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
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The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
At the federal level, campaign-finance law is enacted by Congress and enforced by the Federal Election Commission (FEC). The Federal Election Campaign Act of 1974 and the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold Act) established a regulated and transparent system to monitor contributions to candidate campaigns and political parties. However, so-called independent expenditures have been subject to fewer and diminishing constraints. In the 2010 Supreme Court ruling Citizens United v. Federal Election Commission, the court rejected any limits on private advertising in election campaigns.
As a result, recent elections have seen the rise of so-called Super PACs – political action committees able both to make unlimited expenditures on behalf of parties or candidates – without being allowed to coordinate with candidates’ campaigns – and to receive unlimited contributions from individuals, corporations, unions or other entities.
Candidates of both parties, though especially Republicans, have relied increasingly on independent expenditures originating from extremely wealthy individuals or large businesses. In some cases, the donations are laundered through intermediary organizations to avoid publicity regarding their source.
Toward the beginning of the Biden administration, campaign finance remained a major source of concern, especially the enduring financial role of corporations withing the political system, which has only increased since the 2010 Supreme Court ruling Citizens United v. Federal Election Commission.
As a result, recent elections have seen the rise of so-called Super PACs – political action committees able both to make unlimited expenditures on behalf of parties or candidates – without being allowed to coordinate with candidates’ campaigns – and to receive unlimited contributions from individuals, corporations, unions or other entities.
Candidates of both parties, though especially Republicans, have relied increasingly on independent expenditures originating from extremely wealthy individuals or large businesses. In some cases, the donations are laundered through intermediary organizations to avoid publicity regarding their source.
Toward the beginning of the Biden administration, campaign finance remained a major source of concern, especially the enduring financial role of corporations withing the political system, which has only increased since the 2010 Supreme Court ruling Citizens United v. Federal Election Commission.
Do citizens have the opportunity to take binding political decisions when they want to do so?
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Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
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Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
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Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
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Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular decision-making mechanisms do not exist in the United States at the federal level. But 24 of the 50 state governments and many local governments provide for some form of direct democracy – with ballot measures giving citizens the opportunity to discuss and vote on public policy and/or constitutional issues. In around 30 states, petitions can force special elections in which voters decide whether to remove or retain one or more challenged elected officials. In several states, a recall with sufficient signatures can launch a by-election for any reason. States or cities have adopted measures granting or restricting rights for the LGBTQ community, legalizing marijuana, mandating certain expenditures, limiting taxes, setting mandatory criminal sentences and other provisions.
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To what extent are the media independent from government?
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Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
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The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
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The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
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Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
The United States has long upheld an unusually rigorous version of media freedom, based on the categorical language of the First Amendment to the constitution. In general, government interference in the media sector has been nearly nonexistent. The United States does not have a national “shield law,” barring punishment for a journalist’s refusal to reveal sources to law-enforcement officials, but most states offer such protection.
Both in his presidential campaign and as president, Trump threatened news organizations in various ways for their critical coverage of him, which he dismisses as “fake news.” He persistently attacked the mainstream media, falsely accusing them of corruption and dishonesty, referring to them as “enemies of people.” Yet, the vast majority of the news media were not intimidated by Trump’s attacks or threats, which became increasingly ceaseless over time. Although President Biden has moved away from the negative rhetoric of his predecessor about news organizations, many Republicans remain convinced most of these organizations are biased against them.
Both in his presidential campaign and as president, Trump threatened news organizations in various ways for their critical coverage of him, which he dismisses as “fake news.” He persistently attacked the mainstream media, falsely accusing them of corruption and dishonesty, referring to them as “enemies of people.” Yet, the vast majority of the news media were not intimidated by Trump’s attacks or threats, which became increasingly ceaseless over time. Although President Biden has moved away from the negative rhetoric of his predecessor about news organizations, many Republicans remain convinced most of these organizations are biased against them.
To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?
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Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
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Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
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Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
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Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
The media market is characterized by pluralism in the electronic and broadcast sectors. Publicly funded television and radio networks provide high-quality programming but have modest resources with which to gather news. There are strong television-news networks on both the left (MSNBC) and the right (Fox News) of the political spectrum, in addition to the centrist CNN. There has been an unprecedented consolidation of ownership of local media outlets in recent years. A mere five major media corporations control nearly 75% of primetime viewing. Nevertheless, people in most places have access to at least six different national television news networks, several local tv-shows in addition to multiple radio stations and the vast array of internet sources. The American media landscape offers a great deal of pluralism if and when people actually choose to consume it.
Because of declining readership, there has been a steady decline of competition in the print media; few major cities today have more than one newspaper. The main challenge with respect to media pluralism is the decline in financial resources available for actual news-gathering and reporting, as opposed to commentary.
Because of declining readership, there has been a steady decline of competition in the print media; few major cities today have more than one newspaper. The main challenge with respect to media pluralism is the decline in financial resources available for actual news-gathering and reporting, as opposed to commentary.
To what extent can citizens obtain official information?
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Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
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Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
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Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
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Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
The Freedom of Information Act (FOIA) allows citizens a high degree of access to documents and files held by federal agencies. Various categories of information are exempt from public access, such as information related to national defense, personnel rules and practices, and ongoing criminal investigations. Administrators have considerable discretion in permitting access, as citizens and researchers have difficulty knowing when relevant information has been withheld.
In 2019, a larger issue of access to information arose in that the White House declared, in the context of the House’s various investigations into presidential misconduct, that the administration would not cooperate with the House inquiry and thus would neither provide any requested documents nor permit executive branch witnesses to testify. The unprecedented blanket defiance of legitimate congressional demands for information and testimony also deprived the media and the public of the access it would have had to most of that information. In December 2019, the House of Representatives, on a party-line vote, impeached president Trump, in part for his “obstruction of Congress.” Despite this, key congressional demands for information remained a contentious issue until the very end of the Trump presidency and even beyond, especially in the aftermath of the January 6, 2021 attack on the Capitol, which led to the second impeachment of Donald Trump by the House later that month. And this continues to date (of this writing) with the House’s investigation of the January 6 attack on the Capitol.
Citations:
https://www.newyorker.com/news/ryan-lizza/how-trump-broke-the-office-of-government-ethics
In 2019, a larger issue of access to information arose in that the White House declared, in the context of the House’s various investigations into presidential misconduct, that the administration would not cooperate with the House inquiry and thus would neither provide any requested documents nor permit executive branch witnesses to testify. The unprecedented blanket defiance of legitimate congressional demands for information and testimony also deprived the media and the public of the access it would have had to most of that information. In December 2019, the House of Representatives, on a party-line vote, impeached president Trump, in part for his “obstruction of Congress.” Despite this, key congressional demands for information remained a contentious issue until the very end of the Trump presidency and even beyond, especially in the aftermath of the January 6, 2021 attack on the Capitol, which led to the second impeachment of Donald Trump by the House later that month. And this continues to date (of this writing) with the House’s investigation of the January 6 attack on the Capitol.
Citations:
https://www.newyorker.com/news/ryan-lizza/how-trump-broke-the-office-of-government-ethics
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To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?
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All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
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The state respects and protects rights, with few infringements. Courts provide protection.
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Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
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State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
The traditional legal protection from intrusion by the state has been compromised significantly as a result of the anti-terrorism measures following the attacks of 9/11. The Patriot Act has taken a more balanced approach than is generally recognized, even though some surveillance and investigative procedures have opened the way for abuse. The more significant compromises of privacy protections have resulted from actions taken by the Bush administration, which include the National Security Agency being able to order widespread wiretapping and internet surveillance, entirely without statutory authority.
In December 2018, Congress passed a bipartisan bill, the First Step Act, under discussion for several years that reduced excessive sentences for many nonviolent offenses, such as minor drug offenses. The burden of such sentences had fallen heavily on blacks and Latinos. During the COVID-19 pandemic, the First Step Act played a direct role in the many requests by federal inmates for their compassionate (health-related) release.
The Biden Administration and the Justice Department’s Civil Rights Division have launched several major investigations. For example, investigations into three major police departments. Furthermore, the Justice Department also has launched an investigation into Georgia’s prison system for alleged civil rights legislation. This all indicates a clear departure from the policies of the Trump Administration.
Citations:
http://www.nber.org/papers/w22399
https://scholar.harvard.edu/jfeldman/blog/roland-fryer-wrong-there-racial-bias-shootings-police
In December 2018, Congress passed a bipartisan bill, the First Step Act, under discussion for several years that reduced excessive sentences for many nonviolent offenses, such as minor drug offenses. The burden of such sentences had fallen heavily on blacks and Latinos. During the COVID-19 pandemic, the First Step Act played a direct role in the many requests by federal inmates for their compassionate (health-related) release.
The Biden Administration and the Justice Department’s Civil Rights Division have launched several major investigations. For example, investigations into three major police departments. Furthermore, the Justice Department also has launched an investigation into Georgia’s prison system for alleged civil rights legislation. This all indicates a clear departure from the policies of the Trump Administration.
Citations:
http://www.nber.org/papers/w22399
https://scholar.harvard.edu/jfeldman/blog/roland-fryer-wrong-there-racial-bias-shootings-police
To what extent does the state concede and protect political liberties?
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All state institutions concede and effectively protect political liberties.
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All state institutions for the most part concede and protect political liberties. There are only few infringements.
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State institutions concede political liberties but infringements occur regularly in practice.
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Political liberties are unsatisfactory codified and frequently violated.
The United States generally has a strong record of protecting political liberties. The protections cover all of the recognized political freedoms of speech, association, voting, and pursuit of public office, and extend even to extreme groups such as Communists and neo-Nazis. Religious freedoms are protected even for religious fringe groups. In contrast with most developed democracies, the United States’ constitutional free-speech doctrine does not permit laws banning hate speech.
In one significant limitation to political rights, convicted felons are barred from voting in nearly all states, although usually not permanently. Florida passed legislature to restore voting rights for felons in 2018. Additionally, while the government allows protest demonstrations for all kinds of causes, even when they may become disruptive or disorderly, local police have sometimes confined demonstrators to locations far removed from the target events (e.g., during G-8, G-20 and WTO meetings).
In one significant limitation to political rights, convicted felons are barred from voting in nearly all states, although usually not permanently. Florida passed legislature to restore voting rights for felons in 2018. Additionally, while the government allows protest demonstrations for all kinds of causes, even when they may become disruptive or disorderly, local police have sometimes confined demonstrators to locations far removed from the target events (e.g., during G-8, G-20 and WTO meetings).
How effectively does the state protect against different forms of discrimination?
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State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
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State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
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State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
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The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
The U.S. federal and state governments have enacted many laws prohibiting discrimination. At the federal level, enforcement is centered in a Civil Rights Division within the Justice Department and an independent Equal Employment Opportunity Commission. While the origins of these policies are found in the civil rights movement of the 1960s, the framework of protection has been extended from racial minorities to women, the aged and disabled, and in some state and local contexts, LGBTQ+.
The federal government has not actively pushed affirmative-action policies, such as preferential treatment for disadvantaged groups, since the Clinton administration. The U.S. Supreme Court has imposed restrictions on state-university practices that favored black or Latino students in admissions, while upholding state policies that barred race or ethnicity as considerations in admission. In general, liberals and conservatives disagree on how much the persistence of unfavorable outcomes for African Americans in educational achievement, employment status, income, incarceration and other areas is a consequence of ongoing discrimination despite existing legal protections.
The Biden Administration took decisive action on a number of issues of importance to the LGBTQ+ community, including clarifying the scope of sex discrimination protection in federal law and renouncing the ban on open service by transgender people currently in the military, and those wishing to serve. Furthermore, several Executive Orders expand LGBTQ+ nondiscrimination protections.
The federal government has not actively pushed affirmative-action policies, such as preferential treatment for disadvantaged groups, since the Clinton administration. The U.S. Supreme Court has imposed restrictions on state-university practices that favored black or Latino students in admissions, while upholding state policies that barred race or ethnicity as considerations in admission. In general, liberals and conservatives disagree on how much the persistence of unfavorable outcomes for African Americans in educational achievement, employment status, income, incarceration and other areas is a consequence of ongoing discrimination despite existing legal protections.
The Biden Administration took decisive action on a number of issues of importance to the LGBTQ+ community, including clarifying the scope of sex discrimination protection in federal law and renouncing the ban on open service by transgender people currently in the military, and those wishing to serve. Furthermore, several Executive Orders expand LGBTQ+ nondiscrimination protections.
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To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?
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Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
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Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
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Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
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Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
There is little arbitrary exercise of authority in the United States, but the legal process does not necessarily provide a great deal of certainty. Some uncertainty arises as a consequence of the country’s adversarial legal system. Policy implementation is one area that suffers. Adversarial tendencies have several negative effects. These include supplanting the authority of elective policymaking institutions, reducing administrative discretion, causing delays in decision-making, and increasing reliance on courts and judges to design policies and/or administrative arrangements. When it comes to important issues, a government agency will undertake a lengthy, highly formalized hearing before issuing a decision. The resulting action will be appealed (often by multiple affected parties) to at least one level of the federal courts, and firms may not know their obligations under the new regulation for several years.
President Trump was impeached twice by the House of Representatives: the first time in December 2019, for obstruction of Congress and the abuse of power, and again in January 2021, barely a week before the end of his presidency, for incitement of insurrection in the aftermath of the January 6 attack on the U.S. Capitol. In both cases, however, the Republican-controlled Senate acquitted President Trump. Yet, in July 2021, the U.S. House Select Committee on the January 6 Attack began its work. This Committee is discussing “whether to recommend that the Justice Department open a criminal investigation into the former president” (Hamburger et al. 2021).
The Biden Administration came into office on a promise to strengthen democratic institutions again and has taken several critical steps to revitalize norms that have been violated by the Trump Administration. Biden issued an Executive Order requiring an ethics pledge from all executive branch appointees. Biden also returned to pre-Trump norms by voluntarily disclosing his tax returns. In addition, Biden issued a memorandum laying out standards and procedures to prevent the politicization of scientific research at government agencies. More recently, the White House Counsel’s Office and the Department of Justice issued policies limiting contacts between the two, ending a problematic relationship between the two institutions under the Trump Administration.
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Citations:
https://www.degruyter.com/view/j/for.2017.15.issue-3/for-2017-0037/for-2017-0037.xml
Milkis and Jacobs
Hamburger, Tom, Jacqueline Alemany, Josh Dawsey and Matt Zapotosky. 2021. “Thompson says Jan. 6 committee focused on Trump’s hours of silence during attack, weighing criminal referrals,” The Washington Post, December 23. https://www.washingtonpost.com/politics/january-6-thompson-trump/2021/12/23/36318a92-6384-11ec-a7e8-3a8455b71fad_story.html
President Trump was impeached twice by the House of Representatives: the first time in December 2019, for obstruction of Congress and the abuse of power, and again in January 2021, barely a week before the end of his presidency, for incitement of insurrection in the aftermath of the January 6 attack on the U.S. Capitol. In both cases, however, the Republican-controlled Senate acquitted President Trump. Yet, in July 2021, the U.S. House Select Committee on the January 6 Attack began its work. This Committee is discussing “whether to recommend that the Justice Department open a criminal investigation into the former president” (Hamburger et al. 2021).
The Biden Administration came into office on a promise to strengthen democratic institutions again and has taken several critical steps to revitalize norms that have been violated by the Trump Administration. Biden issued an Executive Order requiring an ethics pledge from all executive branch appointees. Biden also returned to pre-Trump norms by voluntarily disclosing his tax returns. In addition, Biden issued a memorandum laying out standards and procedures to prevent the politicization of scientific research at government agencies. More recently, the White House Counsel’s Office and the Department of Justice issued policies limiting contacts between the two, ending a problematic relationship between the two institutions under the Trump Administration.
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Citations:
https://www.degruyter.com/view/j/for.2017.15.issue-3/for-2017-0037/for-2017-0037.xml
Milkis and Jacobs
Hamburger, Tom, Jacqueline Alemany, Josh Dawsey and Matt Zapotosky. 2021. “Thompson says Jan. 6 committee focused on Trump’s hours of silence during attack, weighing criminal referrals,” The Washington Post, December 23. https://www.washingtonpost.com/politics/january-6-thompson-trump/2021/12/23/36318a92-6384-11ec-a7e8-3a8455b71fad_story.html
To what extent do independent courts control whether government and administration act in conformity with the law?
10
9
9
Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
8
7
6
7
6
Independent courts usually manage to control whether the government and administration act in conformity with the law.
5
4
3
4
3
Courts are independent, but often fail to ensure legal compliance.
2
1
1
Courts are biased for or against the incumbent government and lack effective control.
The United States was the originator of expansive judicial review of legislative and executive decisions in democratic government. The Supreme Court’s authority to overrule legislative or executive decisions at the state or federal level is virtually never questioned. In the U.S., however, judicial decisions often depend heavily on the ideological tendency of the courts at the given time. The U.S. federal courts have robust authority and independence but lack the structures or practices to ensure moderation or stability in constitutional doctrine.
In late September 2020, after the passing of Justice Ruth Bader Ginsburg, President Trump nominated Amy Coney Barrett to the Supreme Court. Her confirmation the following month durably tilted the Supreme Court to the right. In late January 2022, Joe Biden announced he planned to nominate a yet unnamed black woman to the Supreme Court, but the presence of 50 Republicans in the Senate appeared as a potential obstacle for her confirmation.
In April 2021, Biden issued an Executive Order forming the Presidential Commission on the Supreme Court, presenting major reform proposals for the Supreme Court. In its final report, the Commission identifies considerable bipartisan support for implementing an 18-year term-limit for the justices. But there was no agreement on whether Congress should expand the court beyond its current nine seats, a proposal that was support by the progressive wing of the Democratic party.
In late September 2020, after the passing of Justice Ruth Bader Ginsburg, President Trump nominated Amy Coney Barrett to the Supreme Court. Her confirmation the following month durably tilted the Supreme Court to the right. In late January 2022, Joe Biden announced he planned to nominate a yet unnamed black woman to the Supreme Court, but the presence of 50 Republicans in the Senate appeared as a potential obstacle for her confirmation.
In April 2021, Biden issued an Executive Order forming the Presidential Commission on the Supreme Court, presenting major reform proposals for the Supreme Court. In its final report, the Commission identifies considerable bipartisan support for implementing an 18-year term-limit for the justices. But there was no agreement on whether Congress should expand the court beyond its current nine seats, a proposal that was support by the progressive wing of the Democratic party.
To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?
10
9
9
Justices are appointed in a cooperative appointment process with special majority requirements.
8
7
6
7
6
Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
5
4
3
4
3
Justices are exclusively appointed by different bodies without special majority requirements.
2
1
1
All judges are appointed exclusively by a single body irrespective of other institutions.
Federal judges, including Supreme Court justices, are appointed for life by the president and must be confirmed by a majority vote in the Senate. Historically, they have generally reflected the political and legal views of the presidents who appointed them. Over the last 30 years, however, judicial appointments have become more politicized, with conflicts over Senate confirmation eventually becoming almost strictly partisan.
During his tenure, President Trump appointed and the Senate confirmed three Supreme Court justices. In 2021, during his first year in office, President Biden saw “more judges confirmed to the federal bench than any first-year president since Ronald Reagan, and experts say a growing list of judicial vacancies could allow him to appoint even more in 2022” (Raymond, 2021). After Justice Breyer announced his retirement, Biden promised to nominate an African American woman to the Supreme Court.
Given the fact that federal judges are appointed for life, the courts’ independence from current elected officials is well protected. However, federal judges increasingly reflect the ideological preferences of the president who appointed them often decades earlier. Within the Senate, voting on the confirmation of Supreme Court judges is a purely partisan manner.
Citations:
Raymond, Nate. 2021. “Biden finishes 2021 with most confirmed judicial picks since Reagan,” Reuters, December 28. https://www.reuters.com/legal/government/biden-finishes-2021-with-most-confirmed-judicial-picks-since-reagan-2021-12-28/
During his tenure, President Trump appointed and the Senate confirmed three Supreme Court justices. In 2021, during his first year in office, President Biden saw “more judges confirmed to the federal bench than any first-year president since Ronald Reagan, and experts say a growing list of judicial vacancies could allow him to appoint even more in 2022” (Raymond, 2021). After Justice Breyer announced his retirement, Biden promised to nominate an African American woman to the Supreme Court.
Given the fact that federal judges are appointed for life, the courts’ independence from current elected officials is well protected. However, federal judges increasingly reflect the ideological preferences of the president who appointed them often decades earlier. Within the Senate, voting on the confirmation of Supreme Court judges is a purely partisan manner.
Citations:
Raymond, Nate. 2021. “Biden finishes 2021 with most confirmed judicial picks since Reagan,” Reuters, December 28. https://www.reuters.com/legal/government/biden-finishes-2021-with-most-confirmed-judicial-picks-since-reagan-2021-12-28/
To what extent are public officeholders prevented from abusing their position for private interests?
10
9
9
Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
8
7
6
7
6
Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
5
4
3
4
3
Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
2
1
1
Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
The U.S. federal government has long had elaborate and extensive mechanisms for auditing financial transactions, investigating potential abuses and prosecuting criminal misconduct. The FBI has an ongoing, major focus on official corruption. Auditing of federal spending programs occurs through congressional oversight as well as independent control agencies such as the General Accountability Office (GAO) – which reports to Congress, rather than to the executive branch. The GAO also oversees federal public procurement. Thanks to all of these controls, executive branch officials have been effectively deterred from using their authority for private gain and prosecutions for such offenses have been rare.
Trump demonstrated a lack of respect for laws, constitutional provisions and established practices in order to profit personally from the presidency. His hotels received millions of dollars in payments from foreign governments (in apparent violation of the Constitution’s “emolument’s clause”), American military personnel, and his own travel and security staff. In 2019, uncontroverted testimony emerged showing that Trump used the threat of withholding $400 million of military aid from Ukraine to coerce Ukraine to investigate then former Democratic Vice President Joe Biden.
In this context, it is not surprising that fighting corruption became a major theme of Joe Biden’s 2020 presidential run. Once in the White House, President Biden pushed for the adoption of new anti-corruption measures with an eye on national security. These efforts must be understood as part of a broader attempt to repair the reputational and policy damage caused by the Trump administration in that area. So far, much of the Ant-Corruption Strategy remains aspirational and requires legislative and regulatory action to be implemented.
Trump demonstrated a lack of respect for laws, constitutional provisions and established practices in order to profit personally from the presidency. His hotels received millions of dollars in payments from foreign governments (in apparent violation of the Constitution’s “emolument’s clause”), American military personnel, and his own travel and security staff. In 2019, uncontroverted testimony emerged showing that Trump used the threat of withholding $400 million of military aid from Ukraine to coerce Ukraine to investigate then former Democratic Vice President Joe Biden.
In this context, it is not surprising that fighting corruption became a major theme of Joe Biden’s 2020 presidential run. Once in the White House, President Biden pushed for the adoption of new anti-corruption measures with an eye on national security. These efforts must be understood as part of a broader attempt to repair the reputational and policy damage caused by the Trump administration in that area. So far, much of the Ant-Corruption Strategy remains aspirational and requires legislative and regulatory action to be implemented.