United States

   

Quality of Democracy

#24
Key Findings
With the administration routinely flouting political norms, the United States falls into the lower-middle ranks (rank 24) with regard to democracy quality. Its score on this measure has declined by 1.4 points relative to 2014.

The media has become a highly polarized, contested environment, with conservative broadcasters adopting Trump’s often misleading rhetoric. Campaign-finance laws lead to vast, often unaccountable private spending on elections. Potentially illegal foreign contributions to campaigns have been identified. Some state Republican parties canceled their primaries to protect Trump from challenges.

The Republican Party has adopted the suppression of low-income and minority votes by any legal means as a standard party strategy. Numerous policies have been implemented and regulations canceled through the use of unilateral executive actions. The Department of Justice has sought to discourage full implementation of a measure reducing excessive sentences for many nonviolent offenses.

Judicial review remains vigorous. Trump has disregarded laws and established practices in order to profit personally from the presidency. Following impeachment and continued refusal of legal obligations by the Trump administration, it appeared that the U.S. was in the midst of a constitutional crisis, with severe uncertainty regarding assured adherence to the rule of law within the executive.

Electoral Processes

#30

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
9
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.

In general, ballot access has not been controversial, and no major problems regarding ballot access have been reported in recent elections. In 2019, however, Republican party organizations in four states (Arizona, Kansas, Nevada and South Carolina) moved to cancel their 2020 primary elections, and thus protect President Trump from effective challenge to his nomination for a second term. Because the political parties set their own rules and procedures for nominating candidates, the national Republican party will undoubtedly accept the change, even though it severely compromises the democratic character of candidate selection within the party.

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

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.
 8
 7
 6


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.
 5
 4
 3


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.
 2
 1

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.
Media Access
6
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. During the 2016 presidential race, Donald Trump held a strong advantage in free air-time on news media because audiences were interested in his frequent use of extreme rhetoric at campaign rallies.
Since the 2016 campaign, citizens have reported accessing 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 useful in efforts to spread misinformation. Despite being subject to considerable criticism during congressional hearings held in 2019, Facebook has resisted taking responsibility in terms of preventing the dissemination of false and misleading content on its platform.

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?

10
 9

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.
 8
 7
 6


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.
 5
 4
 3


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.
 2
 1

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.
Voting and Registration Rights
5
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.

In recent elections, however, 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 both the 2016 and 2018 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 has not challenged such voting restrictions. But federal courts, responding to appeals brought on by other parties, have blocked several of these restrictions. And the new Democratic House has identified voting rights as one of its top priorities. Florida passed an amendment in 2018 to restore voting rights for felons.

As of 2019, the Republican party adopted as a standard party strategy the suppression of low-income and minority votes by any legal means. Republican officials in Wisconsin and Georgia have launched initiatives to purge the voter rolls of hundreds of thousands of voters, mostly in minority and low-income areas.

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?

10
 9

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.
 8
 7
 6


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.
 5
 4
 3


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.
 2
 1

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.
Party Financing
5
The U.S. system of political finance has evolved to become only partly transparent. 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.
Neither the contributor nor the candidate or party can be held accountable for how contributions are spent, and contribution recipients are no longer required to disclose how a Super PAC is funded. In the 2014 McCutcheon case, the Supreme Court went further, striking down the limit (then set at $123,200) on aggregate contributions by an individual directly to political parties or candidates (as opposed to independent groups).

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.

In 2018 and 2019, evidence emerged of potentially substantial illegal foreign contributions being made to electoral campaigns. The National Rifle Association has been implicated in funneling Russian money to Republican candidates. In September 2019, two Ukrainian associates of Trump’s personal attorney Rudolph Giuliani were indicted for several crimes – including illegal, Russian-sourced contributions to political campaigns such as that run by House Republican leader Kevin McCarthy. Meanwhile, the Trump administration has failed to make appointments to the Federal Election Commission, depriving it of the quorum needed to undertake enforcement action.

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

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.
 8
 7
 6


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.
 5
 4
 3


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.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
8
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. The contribution of these direct-democracy practices to sustainable governance is controversial.

Access to Information

#15

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


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.
 2
 1

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.
Media Freedom
7
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. News organizations are rarely subject to damage suits, even for false accusations against government officials. 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 has threatened news organizations in various ways for their critical coverage of him, which he dismisses, nearly always falsely, as “fake news.” Throughout 2018, there were no apparent cases of substantial punishment or censorship of news organizations, but the president’s contempt for press freedom has been widely regarded as a significant threat. He has persistently attacked the mainstream media, falsely accusing them of corruption and dishonesty, referring to them as “enemies of people.” In 2019, the Trump administration withheld a $10 billion military contract for cloud services from Amazon in an apparent attempt to retaliate against owner Jeff Bezos, who also owns the Washington Post and which has published several reports critical of the president.

The vast majority of the news media have not been intimidated by Trump’s attacks or threats, which have become more or less ceaseless at this writing.

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

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.
 8
 7
 6


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.
 5
 4
 3


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.
 2
 1

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.
Media Pluralism
8
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 for news gathering. 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 in addition to multiple radio stations and the vast array of internet sources. 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.

The main problem in the U.S. media system is not a lack of pluralism but the fragmentation of media audiences into ideological camps. In addition, the prominence of right-wing media, such as Fox News, pose a significant problem as they have largely participated in the Trump presidency’s attack on mainstream media, the erosion of standards of civility, and have engaged in the dissemination of misleading claims and outright falsehoods. A significant share of the public is therefore effectively not exposed to the most important current information about public affairs.

To what extent can citizens obtain official information?

10
 9

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.
 8
 7
 6


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.
 5
 4
 3


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.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
6
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. The Obama White House reported that it had reduced FOIA request backlogs and denied fewer requests than the preceding Republican administration.

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. Although some executive-branch witnesses did testify, contrary to White House instructions, most did not. 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. As of fall 2019, congressional efforts to enforce demands for information (along with some similar demands by state and local prosecutors) were tied up in judicial appeals – in most cases with little chance of getting the administration to cooperate with these demands.l. In December 2019, the House of Representatives, on a party-line vote, impeached president Trump, in part for his “obstruction of Congress.”

Citations:
https://www.newyorker.com/news/ryan-lizza/how-trump-broke-the-office-of-government-ethics

Civil Rights and Political Liberties

#15

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

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.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
6
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, widely reviled by civil-liberties advocates, 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 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. In 2019, however, the Justice Department, under Attorney General William Barr, has openly criticized the reform law and sought to discourage its full implementation.

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?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
9
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. From 2015 to 2018, restrictions imposed by many university campuses on speech deemed to offend one or more groups – primarily leftwing social justice, anti-racist, feminist and LGBTQ activists – received growing media and political attention. Some universities have barred conservative speakers from making appearances on campus, mostly citing security concerns that arise from leftwing activists’ efforts to disrupt the events. According to the non-profit Foundation for Individual Rights in Education (FIRE), a majority of colleges and universities have speech codes that violate constitutional guarantees of freedom of speech. Several states with Republican-controlled legislatures have passed laws requiring state universities to effectively protect free speech on campus, and in 2019, the Trump administration added free-speech protection to the requirements for university access to federal aid.

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?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
8
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, LGBT.

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 Trump administration has announced reversals of some Obama-era anti- discrimination policies. The Department of Justice under Trump has argued that anti-discrimination legislation does not include transgender workers and has blocked efforts to prohibit discrimination in the workplace based on gender identity. It also supports the right of small businesses to withhold services from LGBTQ individuals if, for example, the business owners have religious objections to same-sex marriages. In an action initiated in a tweet by the president, without consultation of the Department of Defense, the Trump administration has banned transgender individuals from serving in the military. For the most part, however, the Trump administration positions have resisted expansion of anti-discrimination protections, especially for transgendered persons, rather than withdrawing established protections.

Rule of Law

#26

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


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.
 2
 1

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.
Legal Certainty
5
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.

Donald Trump and his associates have been heavily criticized for their overt and sustained efforts to undermine investigations into possible misconduct. In the most important investigation, Special Counsel Robert Mueller investigated Russian interference in the 2016 election campaign, possible collusion with the Russian interference by the Trump campaign, and possible obstruction of justice. In the course of the various investigations into his activities, Trump has fired the FBI director, threatened to fire Special Counsel Robert Mueller, leveled numerous false accusations against investigators, and repeatedly discussed offering presidential pardons to his associates whom he feared would testify against him. For the most part, Congressional Republicans have either supported Trump’s conduct or have at least avoided engaging in a direct confrontation with him. The Trump administration has ignored clear legal obligations on some investigation-related matters, which includes refusing to provide Trump’s tax returns to Congress, and failing to forward a whistleblower’s report that had been referred by the intelligence community’s inspector general. Trump has also invoked emergency powers, without credible grounds, to transfer funds from military construction projects to the construction of his proposed wall on the Mexican border. In his letter of resignation as secretary of defense, James Mattis criticized Trump for ignoring the limits of his legal authority in multiple matters.

At the time of this writing (early 2020), on the heels of Trump’s impeachment by Congress, it seems clear that the United States is in the midst of a constitutional crisis in which there is severe uncertainty regarding assured adherence to the rule of law within the executive in particular.

Citations:
https://www.degruyter.com/view/j/for.2017.15.issue-3/for-2017-0037/for-2017-0037.xml
Milkis and Jacobs

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
9
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.

After the death of conservative Justice Antonin Scalia in early 2016, the Republican-controlled Senate, in a sharp break from past practice, refused to act on Obama’s nomination of a replacement for more than a year. Since the 2016 election, President Trump has nominated, and the Senate confirmed, two conservative Republican justices, Neil Gorsuch and Brett Kavanaugh. In the case of the latter, a full investigation of (decades-old) sexual assault accusations waged against Kavanaugh was not permitted. The Senate’s handling of these appointments is an indicator of the partisan and ideological character of the federal judiciary in this era.

Judicial review remains vigorous. In 2015 and 2016, the federal courts struck down several expansive uses of executive power by the Obama administration and various Republican states’ onerous voter registration requirements. During the Trump presidency, federal courts have intervened in various ways by blocking the Trump administration’s Muslim travel ban and forcing major modifications to the administration’s harsh treatment of asylum-seekers.

As of late 2019, the Trump administration has not yet defied final rulings by the judicial branch. It remains to be seen whether it will comply with such orders in the multiple cases currently at various stages of appeal.

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 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


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
7
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.

With one additional vacancy during his first two years, President Trump has appointed and the Senate confirmed two Supreme Court justices. With the obstacle of the filibuster removed, the Republican Senate has declared a firm commitment to confirming Trump-nominated conservative lower court judges. In a departure from past practice, the Republican Senate has confirmed several Trump nominees whom the American Bar Association had rated “not qualified.”

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 and the Senate at the time of their appointment, often decades earlier. Within the Senate, voting on the confirmation of Supreme Court judges is a partisan manner as bipartisan consensus has all but vanished. All of the Trump administration’s federal judge appointees have demonstrated allegiance to the president, and some have few credentials beyond their hardline conservative views.

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
6
The first two years of the Trump presidency have brought an unprecedented disregard of established practices to prevent conflicts of interest. 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.

President Trump has openly flouted established practices with respect to conflicts of interest. Trump has defended his refusal to move his assets into a blind trust on the grounds that (in contrast with other federal officials) there is no conflict-of-interest statute that pertains to the president. His son-in-law Jared Kushner and daughter Ivanka have continued to run separate business while performing White House roles. The administration has been heedless of conflict-of-interest in appointments to regulatory and other positions and refused to provide information to the Office of Government Ethics concerning potential conflicts among appointees, prompting the respected nonpartisan director of the office to resign in protest. Several Trump officials have been embroiled in scandals involving the abuse of public resources, for example, the use of military aircraft for vacation travel.

Trump has demonstrated a lack of respect for laws, constitutional provisions and established practices in order to profit personally from the presidency. His hotels have 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 one of Trump’s likely 2020 election rivals, former Vice President Joe Biden.

In December 2019, the House voted on and approved two Articles of Impeachment against Trump. One of them concerned the abuse of power in the Ukraine affair, and one concerned the obstruction of Congress. The House had considered including various additional articles, including Trump’s violation of the emoluments clause (i.e., financial corruption) and the obstruction of justice in the Mueller investigation, but decided to focus on the two articles whose evidence and importance were most readily demonstrable.
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