Charting the Way Forward

8 mins read
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Harvard Prof. Levitsky, in this lecture explains that the U.S. is passing through a difficult transition.

Before the Civil Rights and women’s rights movements, power was concentrated in the hands of white men.

Democratic institutions existed, but they largely benefited and protected white men. Now the US is transitioning to a true liberal democracy:

Law enforcement once basically meant putting black men in jail. Now the FBI is also looking at crimes committed by white men—and some people are absolutely horrified at what they see as the FBI violating their personal liberty.

I’ve written about that here. MAGA means take America back to the time when white men ruled supreme and could grab whatever they wanted.

All transitions are hard, particularly this one. From Ziblatt and Levitsky: ethnic majorities rarely give up their dominance without a fight.

From Levitsky’s lecture:

  • In 1994, whites were 74% of the electorate
  • In 2014, they were 57%
  • By 2024, they’re expected to be under 50%

These stats are from 2018:

The numbers have gotten worse for the GOP since last year.

The Democratic Party—the party of urban intellectuals, minority communities, and women—has excellent medium and long term prospects.

The GOP, on the other hand, is in trouble. If those numbers didn’t persuade you, listen to this.

Hofstadter similarly describes what he calls the “paranoid style”—a small impassioned minority on the fringes of the political spectrum who believe unseen satanic forces are trying to destroy something larger in which they belong.

They feel “dispossessed.” Panic over the rapid changes from the 50s and 60s allowed this impassioned minority from the fringes to seize control of the Republican Party.

Ziblatt and Levitsky credit Newt Gingrich with bringing Constitutional Hardball into US politics.

Constitutional Hardball tactics are technically within the rules, but shocking, norm breaking, and destructive (because they put so much stress on democratic institutions.) This definition is from Georgetown law Prof. David Pozen (you can find his article here).

An example of Constitutional Hardball was when Newt Gingrich urged Republicans not to compromise. The problem is that democracy requires compromise. “My way or the highway” is autocracy.

Another example was McConnell’s refusal to consider Obama’s Supreme Court nominee.

One problem with hardball is that it invites retaliation. In the words of Prof. Levitsky, “escalation rarely ends well.”

Levitsky compares our current political upheaval to an earthquake: We’re feeling the shock of the transition, and the rattling of GOP hardball tactics.

The Republicans see their shrinking numbers and they feel desperate —so they are willing to employ institution-breaking and norm-shattering tactics. Trump and pals despise the institutions that they feel are unfairly targeting them, so they’re fine with destroying them.

They think they’re victims because if you think you’re entitled to dominant status and that is being taken from you, you feel victimized. For more on that, see:

We don’t respond to earthquakes by applying more pressure. Instead, we move quickly to strengthen the weakened structures.

Because the Democrats have excellent medium and long term prospects, it’s in their best interests to preserve (not further stress) the institutions.

The earthquake analogy is perfect because people ask me, “What if the GOP destroys our democratic institutions?” (Answer: We then have to do the work to build them back up.)

Moreover, consider this: If Democrats “fight like” Republicans, both parties look the same. If both parties are seen as the same, the GOP wins. Bothsidesism takes over. People turn away from politics in disgust. The easiest way to suppress voters is make them feel disgusted by both parties.

Anyone who watched the impeachment proceedings saw a big difference: One party was ranting, shouting, obstructing, and kicking up dust. The other was rational, calm, and stuck to facts and the law. Anyone would rather support the latter—except those who literally want to destroy the government and democracy.

From Levitsky: Avoiding Constitutional Hardball doesn’t mean Democrats should be passive, acquiescent, or abandon vigorous opposition. Levitsky recommends that Democrats use what Pozen calls Anti-Hardball Reform.

Anti-Hardball Reform means responding in ways that blunts GOP power grabs without putting additional pressure and stress on the democratic institutions.

From Prof. Pozen: Anti-hardball tactics “forestall or foreclose tit-for-tat cycles and lower the temperature. . .”

Another definition: Good government rules that both sides would adopt if they didn’t know the underlying partisan dispute.

Pozen says some amount of hardball is tolerable, and in fact, may be used in the interests of countering extreme measures. The threat of hardball tactics can persuade the other side to compromise.

An example of Constitutional Hardball: Democrats come to power and add 3 new SCOTUS justices. The problem is that this just invites retaliation: When the GOP comes to power, they’ll add 3 more.

Anti-Hardball Reform: Increase the number of SCOTUS justices over, say, the next 16 years (2 after each presidential election) on the theory that we’ve had 9 justices since the US population was a small fraction of what we have now, and other branches were equally small.

The Anti-Hardball Reform strengthens government and spreads the appointments over the next 4 presidencies, so whoever wins those elections selects the justices. It’s a good government rule that the Democrats would agree to if they were out of power and the GOP suggested it.

Another anti-hardball reform solution: Respond to GOP voter suppression and purges by mobilizing volunteers to drive people to polls and help people re-register. The Wisconsin Democrats are doing a fabulous job with this. (They could use help!)

The way forward:

  • Use anti-hardball techniques to blunt GOP tactics
  • Work on the 2020 election with the goal of improving on the 2018 results, which would mean a landslide electoral defeat for the GOP
  • Begin the work of repairing the damage to our institutions.

Lots of people are urging Democrats to adopt Constitutional Hardball tactics. Some genuinely want to save democracy. They feel angry—and simply have a different opinion about how to go about it.

I dare suggest that others are not actually interested in saving democracy.

The message: “Come on, Democrats, hit back harder!” could come from bots who know that a slugfest will destroy what’s left of democratic institutions. Remember: The winner isn’t the side that hits hardest. The winner is the side that saves democracy.

Originally posted on Musing about Law, Books, and Politics.
Re-posted with permission.


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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and CNN.com. Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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