NABE Midyear plenary session outlines a major threat to U.S. democracy, and how bars can fight it

Nancy Gray is director of communications at the Austin Bar Association.

Perhaps the most terrifying thing to come out of Austin, Texas, since The Texas Chainsaw Massacre was the final plenary session offered at the 2020 National Association of Bar Executives Midyear Meeting, on “Deepfakes, Democracy, and the Courts.”

The plenary was presented by Suzanne Spaulding, senior adviser at the Center for Strategic and International Studies and member of the ABA Standing Committee on Law and National Security, and Elizabeth Rindskopf-Parker, consultant to the CSIS and its Defending Democratic Institutions program. The pair offered a compelling, and yes, terrifying, picture of how our institutions and our democracy are being undermined and dismantled by Russian interference, and the role bar associations can play in countering these attacks.

Spaulding began the session by reviewing the techniques used by the Kremlin in 2016 to influence the outcome of the presidential election. Russia is not the only foreign government to be engaged in such conduct, she said, but it is the most active and aggressive with the specific goal of undermining trust in democracy and our public institutions. In the January 6, 2017, background to “Assessing Russian Activities and Intentions in Recent U.S. Elections,” the U.S. Intelligence Community described  Russia’s long-term goal: “Russian efforts to influence the 2016 U.S. presidential election represent the most recent expression of Moscow’s longstanding desire to undermine the U.S.-led liberal democratic order.”

Russia takes advantage of the weaknesses and flaws in our institutions, Spaulding said. While a patriot might point out these same weaknesses in our institutions for the purpose of improving them and making them stronger, she added, Putin highlights them as irreparable, declaring them broken with no hope of being fixed. This is Russia’s way of getting Americans to despair and disengage.

Those behind these efforts succeeded by using techniques such as the hacking and leaking of emails, cyber tampering with voter registration databases, and utilizing propaganda on social media to generate mistrust in the legitimacy of our elections, Spaulding said. The election system, however, isn’t the only institution under attack. Russia has now turned its sights towards the U.S. justice system. While one area of concern is cyber threats to the courts, the bigger concern is the way in which Russia is influencing the confidence of the public in the fair processes of our court system.

Russia uses official statements from its government leaders, propaganda outlets such as RT (Russia Today), the government television network, and Sputnik News, along with social media to spread certain narratives and challenge the independence and impartiality of the U.S. justice system. These narratives are:

• The justice system tolerates, protects, and covers up crimes committed by immigrants;
• The justice system operationalizes the institutionally racist and corrupt police state;
• The justice system directly supports and enables corporate corruption; and
• The justice system is a tool of the political elite.
  

Russian officials don’t care what side of the political narrative they push, Spaulding believes, as long as they stir discord. Millions of tweets and other social media posts reveal that they play to both sides of the immigration debate and racial justice issues, such as by using both #blacklivesmatter and #bluelivesmatter. They also posit corporate corruption as a tool for the political elite, and they attack judges, as they did with Ninth Circuit U.S. District Judge James L. Robart, claiming he “puts his personal ideological preferences over safety of American citizens.” They have attacked Robert Mueller’s credibility by stating, “Special [P]rosecutor Mueller is a puppet of the establishment … Mueller is a very dependent and highly politicized figure; therefore, there will be no honest and open results from the investigation.”

Federal Bureau of Investigation Director Christopher Wray has repeatedly warned that this continues. In a New York Times article last year, he said, “What has pretty much continued unabated is the use of social media, fake news, propaganda, false personas, etc., to spin us up, pit us against each other, to sow divisiveness and discord, to undermine America’s faith in democracy … That is not just an election‐cycle threat. It is pretty much a 365‐day‐a‐year threat.”

An important role for bars

So, now what do we do? Rindskopf-Parker offered several recommendations for bars and others with an interest in upholding democracy.

Unlike with many other national security threats, while these originate outside the United States, much of the activity is happening here at home. Bar organizations can be the boots on the ground to help combat the attacks, Rindskopf-Parker suggested, outlining four pillars of defense:

1. Increase security  (defend democracy—change your password);
2. Be aware of misinformation and disinformation;
3. Build response mechanisms (defend the courts from attacks—they  have to remain outside of the political process); and
4. Restore and revitalize civics education.

Bars need to have a plan, much like a rapid response crisis plan, on how to deal with threats to the judiciary and how to educate the public, Rindskopf-Parker said. These plans should be in place before the attacks happen. Juvenile justice and grand jury proceedings are particularly vulnerable, she noted, because of the lack of transparency that is necessary in these cases.

Rindskopf-Parker identified two states that are taking the lead on understanding how to defend the courts. In Arizona, a task force is at work and hopes to have a report by the end of 2020. Meanwhile, the California Judges Association has created the Judicial Fairness Coalition. Both are resources and models for the rest of the country on how our organizations can build mechanisms to support the bench if it comes under attack, she said.

Reversing the decline in civics education

In preparing our message to the public, Rindskopf-Parker said, we must understand what they know—and what they do not know. Studies show a horrific lack of understanding by the public about civics and the role of an independent judiciary.

In the 2017 Annenberg Constitution Day Civics Survey, it was found that 37 percent  of those surveyed couldn’t name any guaranteed First Amendment rights. Thirty-two percent couldn’t name any branch of government, and only 26 percent could name all three. In a later survey addressed to teachers of civics education, social studies, and history, the teachers reported that only 15 percent of their students understand the concepts of federalism and separation of powers. A 2011 study revealed that 24 percent of U.S. Millennials consider democracy a very bad or bad way to run the country. And in 2017, 35 percent of Millennials in a survey reported  they were losing faith in American democracy, and only 25 percent were confident in democracy. In 2010, the National Assessment of Educational Progress cancelled its assessments of civics education. In the last assessment for which scores can be found, only 23 percent of students tested attained a proficient score in civics education.

We have, Rindskopf-Parker said, a perfect storm with attacks from abroad, attacks from internal homegrown groups, and a citizenship that is totally unprepared to address and understand the context of these attacks.

How did this happen? In the 1960s, in response to Sputnik, the U.S. quickly doubled down on its efforts to focus on STEM (science, technology, engineering, and mathematics) topics in schools, Rindskopf-Parker said. Later, the model that emerged from the No Child Left Behind Act focused on the “three-R’s” (reading, writing, and arithmetic), and most recently, schools focus on preparing students for the tech industry.

However well-intentioned these educational models are, Rindskopf-Parker said, they have sucked time and attention away from civics education. In the 1960s, three civics courses were taught in American high schools. Now, most states require only one semester, with 10 states having no requirement at all. When a subject is not required and not tested, she noted,  it’s not taught. Consequently, she added, teachers are now unprepared to teach the topic. Florida and Illinois are the only two states that currently have a robust civics education program, Rindskopf-Parker believes.

Judges and bars often provide the only civics education kids get, she added, so law-related education programs have never been more important. This is a national security threat we dare not ignore, Rindskopf-Parker stressed, suggesting that much like the 1958 National Defense Education Act, created in response to the Soviet acceleration of the space race, we need a new national focus on civics education to battle the attack on democracy.

Additional resources

Spaulding and Rindskopf-Parker recommended the following for additional information and suggestions on how to promote civics education and defend against attacks on democracy:

• Center for Strategic and International Studies and its Defending Democratic Institutions program;
• CivXNow, created by retired U.S. Supreme Court  Justice Sandra Day O’Connor; and
• the ABA Division for Public Education.