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Think the Constitution Will Save Us Think Again Day Sunkara


"I retrieve the reject of democracy is a mortal threat to the legitimacy and health of capitalism."

—Rebecca Henderson, Harvard Business Schooli

The rule of law and commonwealth are crucial to capital markets. A free marketplace balanced by a democratically elected, transparent and capable authorities, and a strong civil lodge ("an inclusive regime") yield stable growth rates and greater social welfare.2 Conversely, threats to democracy are threats to the private sector, which is why business organization leaders and institutional investors cannot afford to remain on the sidelines when such threats sally.

This paper explores the state of American democracy and whether it constitutes a systemic adventure that impacts fiduciary duties. The paper gain in three parts. In the start, we appraise the question of whether American democracy is backsliding towards failure, and fence that information technology is. In the 2nd, we volition examine whether democratic failure represents a systemic take chances, and conclude that it does. In the 3rd part, we offer some preliminary thoughts about what steps major private sector actors may undertake as part of their fiduciary responsibilities given the threats to U.S. democracy and markets.

Section 1: Is Republic Declining?

We examine this question along two key dimensions: public opinion and institutional operation.

The American Public

Based on six high-quality surveys conducted in the last year and a half, back up for republic as the best grade of government remains overwhelming and mostly stable across party lines.3 However, nearly 1 in v Americans have views that make them at least open to, if not outright supportive of, authoritarianism.iv

But in that location's an important qualification: Americans distinguish sharply between republic in principle and in exercise. In that location is most-universal agreement that our system is non working well—in particular, that information technology is not delivering the results people want. This is troubling considering most people value commonwealth for its fruits, non just its roots.5

Given that situation, it is not surprising that public support is very high for fundamental change in our political system to brand the organization work better. There is no political party of the status quo in contemporary America: both sides desire changes, merely they disagree about the management of change. Unfortunately, about half dozen in x Americans practise not think that the system can alter.6 And because it has not inverse despite growing dysfunction, polarization has led to legislative gridlock, which has generated rising support for unfettered executive action to bear out the people'due south volition.

Democracy means the rule of the people, only Americans do not fully agree nearly who belongs to the people. Although in that location are areas of agreement across partisan and ideological lines, some in our nation hold that to be "truly" American, you must believe in God, identify as Christian, and be born in the United States.7 In a period of increasing immigration and religious pluralism, these divisions can become unsafe.

Disagreements about who is truly American are part of a broader cleavage in American culture. 70% of Republicans believe that America'due south culture and way of life take changed for the worse since the 1950s, while 63% of Democrats believe that they have changed for the better.viii Stiff majorities of Republicans concord that "Things have changed so much that I often feel like a stranger in my ain county," that "Today, America is in danger of losing its culture and identity," and that "the American way of life needs to exist protected for strange influences." Majorities of Democrats turn down these propositions.

Support for political violence is significant. In Feb 2021, 39% of Republicans, 31% of Independents, and 17% of Democrats agreed that "if elected leaders will not protect America, the people must do it themselves, fifty-fifty if it requires vehement actions." In November, xxx% of Republicans, 17% of Independents, and 11% of Democrats agreed that they might have to resort to violence in order to save our country."9

While public back up for many of the reforms in federal compromise legislation is stiff, there is a carve up in the electorate on what they view as the largest problem in our electric current organisation.ten In September, just 36% believed that "rules that make information technology too hard for eligible citizens to vote" constituted the largest trouble for our elections, compared to 45% who identified "rules that are not strict enough to foreclose illegal votes from beingness cast" as the largest problem.

The conclusion we describe from this quick review of public opinion is that if democracy fails in America, it volition not be because a majority of Americans is demanding a not-democratic class of regime. It will exist because an organized, purposeful minority seizes strategic positions inside the system and subverts the substance of republic while retaining its shell—while the majority isn't well organized, or doesn't intendance enough, to resist. Every bit nosotros testify in a later section, the possibility that this will occur is far from remote.

American Institutions

A second manner of considering whether democracy is failing is to expect at the institutions of government. Successful autonomous systems are not designed for governments equanimous of ethical men and women who are only interested in the public good. If leaders were always virtuous in that location would be no need for checks and balances.

The Founding Fathers understood this. They designed a organization to protect minority points of view, to protect usa from leaders inclined to prevarication, cheat and steal, and (paradoxically) to protect the majority against minorities who are determined to subvert the ramble order.

During the Trump presidency, the formal institutional "guardrails" of republic—Congress, the federalist system, the Courts, the bureaucracy, and the press—held firm against enormous pressure. At the aforementioned time, there is bear witness that the informal norms of conduct that shape the functioning of these institutions take weakened significantly, making them more than vulnerable to futurity efforts to subvert them.11 There is no guarantee that our ramble democracy will survive another sustained—and likely better-organized—assault in the years to come.

We begin with the good news well-nigh our institutions.

Former President Trump did not succeed in materially weakening the powers of the Congress.12 He did not try to disband Congress, and while he ofttimes fought that institution, it fought dorsum. Speaker of the Firm Nancy Pelosi (D-CA) had no trouble confronting him, and Democrats brought impeachment charges against him not once merely twice. Although speculation was rampant, in the end so-Majority Leader Mitch McConnell (R-KY) did not block either trial. While former Leader McConnell and allies have been called former President Trump'south lapdogs, on virtually all domestic policy problems they have acted similar nearly whatsoever Republican bulk would human action, and on foreign policy former Leader McConnell neither stopped nor punished Republican senators who tried to constrain Trump when they thought he was wrong.13

The American system is a federalist system. The Constitution distributes power between the federal authorities and the state government, codified in the 10th Amendment to the Constitution. States have repeatedly and successfully exercised their power against old President Trump, especially in two areas, COVID-19 and voting.14

Despite Mr. Trump'due south attempts to pressure the nation's governors and other country officials into doing what he wanted, he did not inflict lasting harm on the federalist system, and the states are no weaker—possibly even stronger—than they were before his presidency. Citizens now understand that in a crunch, states are the ones who control things that are important to them like shutdown orders and vaccine distribution.

In the spring of 2020 and so-President Trump, broken-hearted to go past COVID in time for his re-ballot entrada, was pushing difficult for states to open up up early. But a few complied, while many—including some Republican governors—ignored him. Seeing that the governors were not scared of him, Mr. Trump and so threatened to withhold medical equipment based on states' decisions about opening upwardly. He came up confronting the Supreme Court's estimation of the 10th Amendment, which prevents the president from conditioning federal aid on the basis of governors' acquiescing to a president's demands.fifteen

The guardrails betwixt the federal government and the states also held when it came to Mr. Trump's campaign to reverse the 2020 ballot results. In Georgia, the Republican Secretary of State Brad Raffensperger, a stalwart Republican and Trump supporter, certified election results in spite of personal calls and threats from the president. In Michigan, Republican Senate Majority Leader Mike Shirkey and Republican House Speaker Lee Chatfield did not give in to Trump's attempts to go them to diverge from the process of choosing electors.

One of the hallmarks of failing democracies is a weak judicial system under heavy political command. Only under assault from then-President Trump, the judiciary remained independent despite his repeated attempts to win in the courts what he could not win at the ballot box. President Trump-appointed judges ofttimes made decisions that thwarted Mr. Trump's attempts to overturn the results. In fact, subsequently the election Mr. Trump's squad and allies brought 62 lawsuits and won exactly one.xvi (The others he either dropped or lost.) Many of those decisions were handed downward past Republican judges.17 Perchance former President Trump's biggest disappointment was the Supreme Courtroom'due south decision non to hear election challenges concerning states he claimed he had won.18

A gratis printing is an essential element of a healthy democracy. Former President Trump spent four years using the keen pulpit of the presidency to mock the press, calling them names and "the enemy of the people" and referring to outlets he does not like as "failing." He revoked the press credentials of reporters he did not like. (The courts restored them.) Nonetheless, reporters were not agape to call out his lies. With Mr. Trump out of office for months now, no major news outlets accept gone broke. Few are afraid to criticize former President Trump or his supporters.

The free press is still fundamentally free (although President Trump undoubtably contributed to some decline in public trust of the media, which in plough weakens its oversight and accountability functions). Its financial and structural issues, nigh of which are owing to the challenges of internet age, predated Mr. Trump. Some argue that onetime President Trump increased distrust in the media but, as polling indicates, the lack of trust in media declined to less than fifty percentage in the first decade of the 21st century and has stayed in the low forties in recent years.xix

One final point: democracies frequently neglect when their military machine sides with anti-democratic insurgents. But in the The states, the tradition of civil control over the military remains strong—especially within the military. Later on the chaos in Lafayette Park last June, when Mark Milley, the Chairman of the Joint Chiefs of Staff, appeared with so-President Trump in military fatigues, Mr. Milley and other top military leaders went out of their way to reaffirm this tradition, which is drilled into all officers throughout their careers. A military machine coup is the least likely way for commonwealth in America to finish.20

So why are we worried?

Although scholars and pundits accept long chronicled with regret the rising of partisan polarization and the decline of congressional effectiveness, concern about the outright failure of American democracy was rare before the rise of Donald Trump. Never before in American history take nosotros had a candidate, not to mention a president, who disparaged the integrity of the balloter system and who hinted repeatedly during his election that he would not take the results of the election if he lost. This behavior began during the Republican primaries and continued in advance of the 2016 election, which he won, and the 2020 election, which he lost.21 It built to a crescendo that exploded on January 6, 2021, when supporters, called to Washington for a "Stop the Steal" rally, marched to the Capitol, attacked law enforcement officers, vandalized offices, and breached the Senate gallery where the electoral college vote was supposed to be taking place.

The non-cease attacks on American elections were office of a broader attack on the truth. Any story Mr. Trump and his supporters disliked became "fake news," creating, slowly but surely, an alternate universe that encompassed everything from the integrity of the election to public health guidelines for the COVID pandemic. The very existence of a sizeable number of citizens who cannot concur on facts is an enormous threat to democracy. Every bit the Yale historian Timothy Snyder points out in his 2018 volume, The Road to Unfreedom, authoritarians like Vladimir Putin accept no use for truth or for the facts, because they apply and disseminate only what will help them achieve and maintain power.22 As our colleague Jonathan Rauch argues in The Constitution of Knowledge, disinformation and the war on reality have reached "epistemic" proportions.23

Fifty-fifty though constitutional processes prevailed and Mr. Trump is no longer president, he and his followers continue to weaken American democracy past convincing many Americans to distrust the results of the election. About three-quarters of rank-and-file Republicans believe that there was massive fraud in 2020 and Joe Biden was non legitimately elected president. "A 'Politico'/Morning Consult survey constitute that more than one-third of American voters feel the 2020 ballot should exist overturned, including three out of five Republicans."24

The backwash of the 2020 election revealed structural weaknesses in the institutions designed to safeguard the integrity of the balloter procedure. A focus of concern is the Electoral Count Act of 1887, which was adopted in response to the contested election of 1876. This legislation is so ambiguously drafted that one of former President Trump'southward lawyers used it as the ground of a memorandum arguing that former Vice President Pence, whom the Constitution designates as the chair of the meeting at which the Electoral College ballots are counted, had the right to ignore certified slates of electors united states had sent to Washington. If Mr. Pence had yielded to and then-President Trump's pressure to human action in this way, the ballot would take been thrown into chaos and the Constitution placed in jeopardy.25

Recently, sometime President Trump's assault on the integrity of the 2020 election has taken a new and dangerous turn. Rather than focusing on federal government, his supporters have focused on the obscure world of ballot machinery. Republican majorities in state legislatures are passing laws making it harder to vote and weakening the power of election officials to do their jobs. In many states, especially closely contested ones such every bit Arizona and Georgia, Mr. Trump'due south supporters are trying to defeat incumbents who upheld the integrity of the election and replace them with the former President's supporters.26

At the local level, death threats are being fabricated against Democratic and Republican election administrators, with upward to 30% of election officials surveyed proverb they are concerned for their safety.27 As seasoned ballot administrators retire or just quit, Mr. Trump supporters are vying for these obscure but pivotal positions. In Michigan, for instance, the Washington Mail reports that there is intense focus on the boards charged with certifying the vote at the county level. Republicans who voted against onetime President Trump'south efforts to alter the vote count are being replaced. And well-nigh dangerous of all, some states are considering laws that would bypass the long-established institutions for certifying the vote-count and give partisan legislatures the authority to make up one's mind which slate of electors will represent them in the Electoral College.

American democracy is thus nether attack from the ground upward. The most recent systematic attack on state and local election mechanism is much more unsafe than the chaotic statements of a disorganized sometime president. A movement that relied on Mr. Trump'south organizational skills would pose no threat to ramble institutions.  A motility inspired by him with a articulate objective and a detailed plan to achieve it would be another matter altogether.

The chances that this threat will materialize over the next few years are high and rising. The evidence suggests that Mr. Trump is preparing once over again to seek the Republican presidential nomination—and that he will win the nomination if he tries for it. Even if he decides not to do and so, the party's base will insist on a nominee who shares the former president's outlook and is willing to participate in a plan to win the presidency by subverting the results of state elections if necessary. The consequences could include an extended period of political and social instability, and an outbreak of mass violence.

Section 2: Does a failing democracy threaten the individual sector?

For several reasons, America's private sector has a huge stake in the issue of the struggle for American commonwealth.

In a contempo Harvard Business Review commodity headlined "Business Tin't Have Republic for granted," Rebecca Henderson argues,

American concern needs American democracy. Complimentary markets cannot survive without the support of the kind of capable, accountable authorities that can set up the rules of the game that proceed markets genuinely free and fair. Andsimplydemocracy can ensure that governments are held accountable, that they are viewed as legitimate, and that they don't devolve into the dominion of the many by the few and the kind of crony capitalism that we see emerging in so many parts of the earth.28

Henderson farther argues that, just as democracy sets the rules of the game for the private sector, the private sector can assistance to keep in identify democracy's "soft guardrails," such as the "unwritten norms of mutual toleration and abstinence" upon which democracy relies.29 "CEOs are widely trusted by the American public, "and so the attitudes of the private sector towards government and commonwealth are consequential.30 Because the costless market and democracy are interdependent, a systemic risk to one is, by definition, a systemic risk to the other.

Transnational evidence from the World Banking concern and Liberty House bolsters Henderson'due south claim,31 as does the pioneering work by Daron Acemoglu and James Robinson on the relationship betwixt economic prosperity and political accountability.32 Sarah Repucci, Vice President of Enquiry & Analysis at Freedom House, writes, "The political crackdowns and security crises associated with disciplinarian dominion often drive out business concern and place employees, supply chains, and investments at chance, in addition to raising reputational and legal concerns for foreign companies that stay involved."33 This underscores that information technology is in the investment community'due south own involvement to actively push button dorsum on efforts to weaken or dismantle these autonomous systems. The very nature of checks and balances provides for the stability of a free marketplace, ensuring that a free and engaged denizens will provide the nearly stabilizing market place forces. "A more democratic earth would be a more stable, inviting identify for established democracies to trade and invest."34

The simple fact is that it is difficult to plan and invest for the future in volatile, unstable circumstances. The United states of america is not exempt from the calculus of political risk analysis, fifty-fifty if nosotros are non accustomed to applying it to our ain country. Investors have a fiduciary duty that is dependent on their agreement and attempting to bargain with systemic risk. Co-ordinate to a recent report, "Decisions fabricated past fiduciaries pour downwards the investment chain affecting determination-making processes, ownership practices and ultimately, the way in which companies are managed."35

Moreover, as overseas firms and countries begin to worry almost the stability of our laws and institutions, they will think twice about investing in the United States, and mutually beneficial international partnerships volition be harder to negotiate. Economists concur that "the complimentary market needs free politics and a healthy guild."36

The situation is worsened past the fact that large corporations in America are in a weakened position to withstand political attack. According to the Gallup organisation, which has explored public confidence in major institutions for nearly one-half a century, the share of Americans expressing very trivial or no confidence in big business organization has never been college, not even in the depth of the Smashing Recession. Amongst the 17 institutions Gallup assessed, confidence in big business ranked 15th, ahead of merely television news and the U.S. Congress. Complicating its political challenge in a polarized country, corporate America is increasingly challenged by employees, activists, and indeed some shareholders to have stands on divisive social and political issues in ways that both reverberate and reinforce blue/ruddy polarization.

For much of the past century, Republicans were the champions, and Democrats the critics, of corporate America. Merely now the lack of support for big business organisation is pervasive beyond the political spectrum. In mid-2019, 54% of Republicans had a positive assessment of large business's bear on on the course of our national life. Two years later, this figure had fallen to 30%, most the aforementioned as for Democrats. Republican back up for banks and fiscal institutions also every bit technology companies underwent a similar pass up.37 If an elected demagogue citing national security or a hot-button social issue sought to restrict the independence of the private sector, public opposition to this try would probable be muted at best.

At the aristocracy level, the traditional bonds between the Republican Party and large business are also breaking down. For instance, a recent op-ed by Republican Senator Marco Rubio (R-Fla.) calls out corporate America for taking sides in the culture war: "Today, corporate America routinely flexes its ability to humiliate politicians if they dare back up traditional values at all."38

In short, while more than work remains to be washed, nosotros believe that the fate of democracy constitutes a systemic chance to markets. The fate of republic and that of the individual sector are inextricably linked, and private sector leaders have reasons of self-involvement besides equally principle to do what they tin can to strengthen democracy.

Section 3: What tin can the individual sector do to strengthen commonwealth?

The individual sector has a long and venerable track record in the public sphere. Possibly the best- known campaign began on college campuses in the 1980s to encourage universities to terminate their investments in companies doing business organization in apartheid Due south Africa. This movement spread to pension funds and to cities and states. Past 1990, over 200 U.Due south. companies had cutting investment ties with S Africa. By 1994, Nelson Mandela, the leader of the anti-apartheid movement who was freed after nearly 3 decades in prison house, had been elected president of mail-apartheid South Africa.39

Other examples of corporate action include the Sudan divestment move of the early-mid 2000s prompted by the Darfur genocide, which resulted in about one-half the U.South. states passing divestment statutes that remain in force for many state pension funds. The U.Due north. Tobacco-Complimentary Finance Pledge, signed by almost 130 companies from the banking and finance sector, took place alongside the U.South. government'southward tough regulatory push. More recently, in response to the Black Lives Matter motility, companies pledged virtually $50 billion to address racial inequality.40 Many companies have fabricated pledges or commitments to fight climatic change—for example, through Climate Action 100+ "an investor-led initiative to ensure the world's largest corporate greenhouse gas emitters have necessary activity on climate change."41 Matrimony equality is another case of such touch.42 While progress remains uneven, investor action is making a divergence.

In more recent years much of corporate America and Wall Street, including many large multinationals, have signed onto the UN Guiding Principles on Business organisation and Human Rights/UNGP (June 2011) and the Un Sustainable Development Goals/SDGs (September 2015).

Finally, the move for ESG (ecology, social, and governance) investing is strong and growing. Driven by investor need and regulatory pressure, more than and more institutional investors are implementing ESG investing. Nugget owners such as alimony funds are increasingly demanding sustainable investing strategies.

Until recently, republic has not been a focus of corporate campaigns in the public sphere. However, in response to the 2020 presidential election and sometime President Trump's attempts to overturn the results, some corporations entered the fray. In late Oct of 2020, a grouping of fundamental business organization leaders, led past the Business Roundtable, the National Association of Manufacturers and the U.S Sleeping accommodation of Commerce, issued a argument defending the integrity of the electoral process. When information technology became clear that Biden had won the election, members of this group fabricated statements in support of honoring the outcomes, and they declared that the transition process for the peaceful transfer of power should begin immediately.43 Numerous companies halted their PAC donations to candidates who had voted confronting certifying the election results—and some, such as Charles Schwab, appear that it would stop its political giving altogether "in light of a divided political climate and an increase in attacks on those participating in the political process."44

The function of the private sector did not terminate with Joe Biden'southward inauguration in January of 2021. Equally state afterward state moved to enact laws restricting the right to vote, corporations once again took activeness. In May of 2021, hundreds of corporations and executives including Amazon, BlackRock, Google, and Warren Buffett issued a statement opposing "any discriminatory legislation" that would make it harder for people to vote.45 Kenneth Chenault, a onetime chief executive of American Express, organized the unified argument, highlighting that "throughout our history, corporations accept spoken up on different issues. It'southward absolutely the responsibility of companies to speak upwards, peculiarly on something as fundamental as the correct to vote."46 State and local officials, both past and current officeholders, applauded this argument and urged its signatories to do fifty-fifty more than to protect democracy.47

The continuing involvement of the private sector in the defense of democracy is essential for commonwealth, and for business itself. As a Chatham Business firm report stated recently, "Business should recognize its ain stake in the shared space of the dominion of law, accountable governance, and civic freedoms…. Business has a responsibleness – in its own interest and that of guild – to support the pillars of profitable and sustainable operating environments."48

Discharging this responsibleness requires a clear-eyed assessment of the dangers we face. Every bit we have argued, the greatest threat to democracy in America is not that a majority of Americans volition plough against commonwealth. It is that strategically placed state and local majorities volition collude with an organized and purposeful national minority to seize control of key electoral institutions and subvert the will of the people.

In this context, the responsibility of big investment institutions is clear: to remain vigilant in the face of ongoing threats to republic, to do everything in their power to urge corporate leaders to remain involved in the fight for democracy, and to reward them when they practice. This responsibility can be discharged most effectively when investment institutions institute the framework for ongoing consideration of this issue—and when they act collectively in defense of the democratic institutions without which prosperity as well as liberty is at risk.

Department four: For Further Discussion

The to a higher place give-and-take sets the stage for an action agenda. To start the discussion, investors need to ask themselves the following questions:

  1. Should threats to U.S. constitutional order as discussed in this paper be classified as a systemic run a risk to markets? And if then, is there a fiduciary duty on the part of investors to place and pursue mitigating steps?
  2. Should corporate boards and principal executives of portfolio companies support efforts to protect the right of all Americans to vote in U.Due south. elections and condemn measures that unfairly restrict those rights?
  3. Should investors build into stewardship platforms a policy of mitigating adventure to U.South. Constitutional integrity?
  4. Should portfolio companies follow responsible business practices by urging organizations to which they belong to cease whatsoever financial or other support for measures that result in voter suppression in the U.South., and to withdraw from such organizations if such efforts fail?
  5. Should portfolio companies end any political contributions associated with elected officials or candidates for elected office who decline to accept the legitimate outcome of United states elections or who support seditious acts?
  6. Should investors regularly monitor financial agents they may apply to ensure that they are aligned both in discussion and deed with our efforts to address the systemic risks to U.S. ramble integrity?

Well-nigh the authors

William A. Galston holds the Ezra G. Zilkha Chair in the Brookings Institution's Governance Studies Plan, where he serves as a Senior Fellow. Prior to January 2006 he was the Saul Stern Professor and Acting Dean at the Schoolhouse of Public Policy, University of Maryland, director of the Institute for Philosophy and Public Policy, founding director of the Center for Information and Enquiry on Civic Learning and Engagement (Circle), and executive director of the National Commission on Borough Renewal. A participant in six presidential campaigns, he served from 1993 to 1995 as Deputy Assistant to President Clinton for Domestic Policy. Galston is the writer of x books and more than 100 articles in the fields of political theory, public policy, and American politics. His most contempo books areAnti-Pluralism: The Populist Threat to Liberal Commonwealth(Yale, 2018),Public Matters (Rowman & Littlefield, 2005), andThe Exercise of Liberal Pluralism (Cambridge, 2004). A winner of the American Political Science Association'due south Hubert H. Humphrey award, he was elected to the American Academy of Arts and Sciences in 2004. He writes a weekly column for the Wall Street Journal.

Elaine C. Kamarck is a Senior Swain in the Governance Studies plan also as the Director of the Middle for Constructive Public Management at the Brookings Institution. She is an expert on American electoral politics and government innovation and reform in the United States, OECD nations, and developing countries. Kamarck is the writer of "Primary Politics: Everything You Need to Know about How America Nominates Its Presidential Candidates" and "Why Presidents Fail And How They Can Succeed Once more." Kamarck is too a Lecturer in Public Policy at the Harvard Kennedy School of Government. She served in the White House from 1993 to 1997, where she created and managed the Clinton Administration's National Performance Review, also known as the "reinventing government initiative." Kamarck conducts inquiry on the American presidency, American politics, the presidential nominating process and government reform and innovation.


The Brookings Institution is a nonprofit organization devoted to contained research and policy solutions. Its mission is to conduct loftier-quality, independent research and, based on that enquiry, to provide innovative, practical recommendations for policymakers and the public. The conclusions and recommendations of any Brookings publication are solely those of its author(s), and practice non reflect the views of the Institution, its management, or its other scholars.

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Source: https://www.brookings.edu/research/is-democracy-failing-and-putting-our-economic-system-at-risk/

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