Invoking the major questions doctrine is the wrong way to enforce nondelegation concerns.
Let me stipulate that Russia tried to interfere with our election. It did so by playing up crude conspiracy theories and disseminating false facts. It is not as clear that it changed a very large number of votes. The kind of people who might be persuaded by such interventions may well be looking for confirmation rather than enlightenment.
But insofar as voters were persuaded by these not so sophisticated lies, the Russian intervention raises questions about the nature of democracy and what it can be expected to accomplish. It is not as if stamping out Russian interference will get rid of false claims and conspiracy theories. Much more plausible falsehoods and conspiracy accusations have been a staple of campaigns since the beginning of the republic. The idea that media gatekeepers ever kept them out is fanciful. And beyond actually false statements, many elections turned on issues that any reasonable person would consider irrelevant with the perspective of a decade or two. Defending two small islands off Taiwan featured prominently in the 1960s campaign, but few could locate them on a map a decade later.
That democratic persuasion consists in no small part of falsehoods, half truths, and irrelevancies suggests that we should entertain only modest expectations for what democracy can deliver. To be sure, democracy can function in what political scientists call a protective role, like like it has played for much of American history. Under this conception, democracy is simply a mechanism that assures that government interventions will not be used to advantage a distinctive class of rulers. Democracy diffuses some power of governance throughout society so that politics will not interfere with sources of real happiness — exchanges within the market and the family. The genius of the United States Constitution was to create additional protections beyond democracy through individual rights and limitations of the power of the national government. State and local democracy then could undertake ambitions beyond that of protective democracy, but if their schemes backfired, people could exit to other places in the large republic.
But the frailties of democratic persuasion raise more serious questions for a more modern conception of democracy, so-called social democracy, particularly when conducted at the national level. Social democracy posits that democracy should be the forum in which we engage in central planning for a better society. But few have the time and many lack the ability to evaluate the complexities of social democratic proposals.
The modern administrative state promises one possible solution to this problem by giving bureaucrats, not the representatives of the voters, responsibility for all but the broadest outlines of social planning. But delegation does not eliminate the problem of democratic evaluation. Any society has a budget line and voters must decide what priorities to pursue in reforming society — itself a complex decision.
And even if the administrative state tempers the problem of democratic evaluation it creates other difficulties, not the least the empowering of class of bureaucrats who have very different views and preferences from the people at large. That empowerment undermines the protective role of democracy, because, unlike representatives, bureaucrats cannot be fired at election time. And the alienation of the people from the bureaucratic class and their enablers also endangers democracy by leading to periodic populist revolts that make democracy even a less reliable barometer of sound policy calculus. Social democracy thus is not only vulnerable to the malevolence of foreign enemies, but the intrinsic limitations of democratic persuasion.