The January 6, 2021, sacking of the U.S. Capitol was a warning shot across America’s proverbial bow, telling even the most optimistic amongst us that our beloved democracy is at great risk. Many of those involved in denying the outcome of the 2020 elections have continued their assault on our democracy, and the 2024 presidential election may very well end up determining whether our 247-year-old form of government can survive.
The causes of our current crisis are undoubtedly complex but must be determined and quickly addressed if we are to uphold the legacy more than twelve generations of Americans fought for and passed down to us. The efforts to overturn the 2020 election could very well have succeeded but for our tripartite system of government and the intervention by the judicial branch, including, importantly, its lawyers. Among all Americans, the legal profession has a unique fiduciary duty under its contract with society to defend the Constitution and uphold its principles of democracy. That duty continues to this day to be under intense pressure, as can be seen by reading any newspaper or listening to any newscast.
Our current situation and the unique role that lawyers play in a democracy is what led me to form the American Bar Association (ABA) Task Force for American Democracy—bringing together thirty leading Americans from across the political spectrum, ranging from retired judges to election law experts and law school deans, experts on national security to former presidential candidates from both parties. The Task Force is focused on the two critical objectives that are essential to protecting, and hopefully enhancing, our democracy: (i) assuring elections are conducted under principles of democracy, including being administered in a safe and apolitical manner; and (ii) creating a national culture that is educated on the basics of civics and has not only an understanding of but also a passion for democracy and the rule of law.
Global surveys have shown that there is an alarming trend not only in the United States but also abroad of increasing pressures to replace traditional notions of the rule of law and democratic processes with autocratic forms of government. A growing number of adults and young Americans do not believe that a democratic form of government is necessary or even crucial to their lives and wellbeing, placing our democracy in great peril. Such alarming shifts are confirmed by a 2023 survey by the Associated Press-NORC Center for Public Affairs Research that found that just 10 percent of American adults view the health of our nation’s democracy positively. A staggering 50 percent believe our democracy is not functioning effectively, underscoring a bipartisan disillusionment that cuts across the American political landscape. About half of the respondents expressed disapproval towards key democratic institutions like the Presidency, Congress, and the Supreme Court in their roles of upholding democratic values.
As a country, we don’t fare any better on the world stage. The World Justice Project’s 2023 Rule of Law Index, which ranks nations based on factors such as constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice, showed that our ranking—twenty-sixth out of 142 countries and jurisdictions—reflects a drop from 2020, with our recent declines on par with nations like Hungary and Myanmar.
Clearly, our American democracy is not as strong as we once thought. The time for answers and engagement is now, and our nation’s lawyers need to be at the front of the action.
Just as lawyers played a special role in the founding of our nation, American lawyers have an equally special role to play today in ensuring our democracy not only survives but thrives for generations to come. Every lawyer in America takes an oath to uphold and support our Constitution and the rule of law. Indeed, it was lawyers and the judicial system that arguably saved our democracy when more than sixty different judicial decisions, after reviewing all the evidence presented, held that there was “no steal” of the 2020 presidential election.
As the nation’s leading organization of American lawyers, the ABA is uniquely positioned to be a national leader on preserving and enhancing our democracy, with its ability to engage local communities not only through its lawyer members but also through the ABA’s partnerships with law schools, state and local bar associations, the judiciary, and other democracy NGOs. Lawyers of all stripes—retired general counsels, private practitioners, law school professors, and others—have reached out to the Task Force to ask how they can help, heeding our call to action. They intuitively know the stakes are high and that the endeavor to preserve and enhance our democracy will require many hearts, minds, and hands to be successful.
Co-chaired by former Federal Judge J. Michael Luttig and ex-Homeland Security Secretary Jeh Charles Johnson, the Task Force’s overarching goal is to ensure “an enduring American democracy.” It will drive a better understanding of and a sense of ownership of American democracy into everyday life, as well as promote the rule of law and the sanctity of elections to ensure American democracy thrives for generations to come. From August 2023 through January 2025, the Task Force—in cooperation with local bar associations, law schools, volunteer lawyers, civic and business leaders, and democracy-focused NGOs—will work to:
- Inspire and mobilize America’s uniquely positioned legal profession to fulfill its fiduciary duty to actively support and defend American democracy, the Constitution, and the rule of law.
- Ensure that lawyers are educated and accountable to their professional obligations to support and defend the Constitution, the rule of law, and our democracy.
- Leverage the legal profession to educate the public on the reasons for, and the need to, actively support democracy and the rule of law.
- Restore voter confidence in the integrity of our elections.
- Assure the nonpartisan administration of elections.
- Ensure the safety of election workers and officials and others responsible for the administration of elections.
- Promote civil political discourse and debate, denounce and disincentivize extremist and violent political rhetoric in American politics, and seek to prevent the use of violence to replace democratic practices or to influence or overturn elections.
- Assure citizen participation in democracy and the democratic process.
- Identify and recommend democratic solutions to the antidemocratic weaknesses in our election processes.
- Identify and promote the positive role cyberspace can play in the American democratic process while protecting against misuse of technology and the internet to corrupt the democratic process.
To accomplish its objectives, the Task Force will undertake the following actions:
- Working Papers. Created in cooperation with leading national experts, these documents will seek to analyze the key challenges facing our democracy as well as propose possible solutions to be considered by the American people. Topics to be addressed include decreasing political polarization in the U.S., addressing the use of deepfakes and misinformation in connection with elections, depoliticizing the administration of elections, assuring an independent justice system and a continued separation of powers, and improving civics education in all levels of American society.
- Listening Tours. In collaboration with local partners, the Task Force will host community listening forums in Arizona, Georgia, Michigan, North Carolina, Pennsylvania, Wisconsin, and perhaps other states focused on addressing the key issues facing our democracy, such as trust in elections, election worker safety, improving public dialogue, and reducing polarization. We will intentionally limit the size of our convenings to encourage meaningful dialogue amongst community leaders committed to democracy. We are nonpartisan and seek collaboration across the political spectrum. Based on these initial Listening Tours, the Task Force will also create “Listening Tour Toolkits” to be provided to bar associations, institutions of higher education, and community groups around the United States such that they can host similar events in their communities and then report back to the Task Force on the outcomes of those sessions.
- Rapid Response Teams. The Task Force will create two types of Rapid Response Teams: (a) a national team comprised of Task Force members; and (b) local teams potentially in all fifty states comprised of lawyers, retired judges, retired district attorneys, law school deans, and community leaders. The Rapid Response Teams will provide real-time public responses to emerging or potential threats to American democracy, to concerns related to free and fair elections, and to issues related to the rule of law as they arise on both national and local levels during the lead-up to the counting of electoral college votes on January 6, 2025.
- Strategic Communications. Leveraging the prominence and bipartisan credentials of the Co-Chairs and Task Force Members and working in collaboration with third-party democracy NGOs, the Task Force will seek to inform and educate the public on (a) the importance of American democracy, (b) the centrality of elections to the successful exercise of democratic principles, (c) the imperative of the rule of law in a democracy, and (d) the corrosive effects of extreme rhetoric and misinformation on political discourse.
- Report and Recommendations. In August 2024, the Task Force will convene a Democracy Summit at the ABA Annual Meeting in Chicago. The summit will be based on the findings of a published Interim Task Force Report setting forth its activities, learnings, findings, conclusions, and recommendations regarding key issues such as failures to embrace and support democratic principles, threats to the rule of law, election integrity, election worker safety, extreme and violent political rhetoric, political polarization, the urgency for return to civil political discourse, and the need for civics education at all levels of public and private education.
While a great deal of work lies in front of us, we can collectively rekindle our national faith in the foundational principles that have long defined our democracy. By championing transparency, judicial independence, and steadfast adherence to the rule of law, we can forge the foundation for a restored national trust, and rebuild the public’s belief in our democratic institutions, ensuring that the principles of our republic again resonate with the voices of its people.
“Working to Ensure an Enduring American Democracy” by Mary L. Smith, President of the American Bar Association, is part of a series on the rule of law and its importance for business lawyers, created by the American Bar Association Business Law Section’s Rule of Law Working Group. Read more articles in the series.
