[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a five-part symposium on the state of US constitutionalism after Trump. The introduction to the symposium can be found here.]
—Kim Lane Scheppele, Princeton University
American democracy looked strong in the 2020 election. Record numbers of Americans turned out to vote. Election security remained intact, even in the face of foreign threats and a pandemic. Public engagement in politics reached an all-time high. America’s election administration system is creaky, decentralized and altogether too partisan. But election administrators played it straight, counted the votes, certified the results, and held strong against record attempts at intimidation.
The outcome was mixed. The reality-based candidate won the presidency, though the candidate who lives in a fake news world of his own creation garnered more votes than any other presidential candidate in history, save for 2020’s winner. The fact that so many Republican candidates “down ticket” did well showed that many voters split their vote across parties, something unexpected when party affiliation is now widely seen as a marker of personal identity. But the unexpectedly rosy result for Republicans means that they did not pay a steep price for four years of norm-breaking and assaults on the Constitution. They were not forced to reckon with the consequences of what they have wrought.
In the end, the Democrats (just barely) pulled off a “hat trick” of electoral victories at national level – winning the White House, the House of Representatives and the Senate despite the structural bias in the rules that favor Republicans. Because of that bias, substantial victories for Democrats in the polls turned into small margins in the halls of Congress, which means that Democrats will have to tack to the center and give up hope of a major structural fix to America’s broken politics. That said, prospects of government gridlock and shutdown are reduced. Government may actually function. And there are grown-ups in charge who believe that they have a responsibility to govern and to govern for all, and not just play to the cameras from the Oval Office. The incoming administration promises restore dignity and decency in the place of hatred and lies. This is cause for major celebration, however narrow and fragile – and still contested – the victory.
But despite the fact that the election prevented democratic collapse, the 2020 American election also showed that American democracy is deeply vulnerable. The country no longer has a choice of parties that reliably agree to govern within constitutional guardrails. In particular, the Republican Party is deeply divided in its commitment to constitutional democracy. On one hand, a nationalist and anti-democratic Trump wing would rather burn down the House (and the Senate) than accept the peaceful rotation of power. It is not clear that American democracy could have survived another term of Trump. On the other hand, the (barely visible and beaten down) traditional conservative party that plays to a combination of business interests and social conservatism might not be dangerous if it could separate itself from the rest. But the Trump wing has been so dominant and destructive that it is not clear that traditional conservatives would have much of a party left if it tried to purge the rest. And even if it remains united, the Republican Party has long relied on voter suppression to engineer victories. The traditional conservatives might be able to wrest control of the party away from the Trump faction, but four years of complicity with an administration determined both to obliterate norms and to treat the political opposition as the enemy stains them too. The Republican Party has become the party that opposes constitutional democracy – and it remains a danger unless it can be born again.
This election put on show for all to see a Republican national campaign that had no party platform, but was instead driven by Trump’s personalistic agenda of hatred and lies, followed by an attempt to overturn the results of the election, first by fake legalism, then by real intimidation, and finally by insurrection. The worst of the abuses may be attributable to Trump and his most extreme followers, but other Republicans did not stop them from trying to take down American democracy in the process. Even after Trump unleashed violence to prevent the transfer of power, not enough Republicans broke with him to prevent him from hanging onto all of the powers of his office in his last few weeks. Republican Party is no longer fit to govern the country if it cannot govern itself.
In my study of why democracies fail, I have learned that virtually all countries that have experienced constitutional collapse experienced a collapse of their party systems first. Autocrats come to power when it is time for a normal democratic rotation from one party to another and voters are given toxic choices. Toxic choices are offered when someone with the aspirations of an autocrat breaks through the guardrails of the organized political party system to appear on the political stage as a candidate in democrat’s clothing. When voters vote to switch parties at that point, they may unwittingly usher in the autocrat.
Having ushered in an aspirational autocrat in 2016, Americans might be tempted to think that the danger is past. But that would be premature. A democracy is not safe if the major political parties that can be expected to rotate power include one party committed to protecting the Constitution and another party intent on destroying it. The Democratic Party will not govern forever; no constitutionalist should wish that it will. Rotation of power is the essence of democratic government. And if the only party to which power could rotate isn’t reliably committed to constitutional-democratic government, then we’re in a situation like Germany in 1932. You can’t run a democracy if all of the democrats are in one political party. When the moment comes to rotate power to the anti-democratic party, all bets are off for the maintenance of constitutional government.
Of course, the Biden government needs to do urgent things apart from worrying about the fate of the Republican Party. The Biden government first and foremost must fight the virus. It must rebuild the federal agencies and departments that, like the Capitol building itself, has been invaded by forces hostile to constitutional government that have left traces everywhere. It must ensure that Black and Brown people feel and are safe in their own country. It must restore a sane foreign policy in which the US is a reliable ally and a promoter of constitutional and democratic values in an age of constitutional deconstruction. It must restore decency and dignity and civility. And more.
But the ticking time bomb in America’s future is the future of the Republican Party.
Comparative analysis can focus our analysis on what matters. The good news is that voters in established democracies don’t in general want to hand power to those who want to upend democracy. The countries in which constitutional democracy has failed are not countries in which constitutional and democratic values have lost their appeal. But the bad news is that voters trust parties to have vetted the choices put before the electorate to guarantee that the choices are safe. If the parties have failed to do their jobs, that trust is misplaced.
When Hillary Clinton lost to Donald Trump, we tend to forget that it would have been surprising if she had won against a generic Republican. Only once in US post-war history had a sitting two-term president been able to hand off power to his same-party successor (Reagan to Bush Sr. and then Bush Sr. lost his reelection bid). After a party has been in power for two terms, American voters generally then vote the other party in. It’s just that, when it was the Republicans’ turn in 2016, their party was not strong enough to control the vetting process. Instead, a dozen or more candidates competed for the party nomination in 2016 and party leaders did not weed the field so that a party regular would win the nomination. In the end, an outsider who had barely been recognized as a member of the party was able to cobble together enough plurality primaries to capture the nomination. It turns out that this candidate was the autocrat, who snuck by the party leaders who should have been able to prevent toxic choices from being put to voters. But the gatekeepers were overrun.
How did other countries get into trouble? Viktor Orbán won in 2010 because all of the other parties save his own were either more dangerous or in disarray that year. The economy had fallen apart on the incumbent Socialists’ watch. But even if that hadn’t happened, the Socialists had in power for eight years, so it would have been time to give another party a chance to form a government in any event. The liberal party (SzDSz) collapsed and didn’t even put up a national slate. The only other party seriously in contention was Jobbik, a far-right neo-Nazi party that won nearly 17% of the vote. A new vaguely liberal, vaguely green but mostly vague party of untested young people (LMP) burst on the scene and got 7.5% of the vote – impressive for a party that came from nowhere with no one experienced in politics anywhere to be seen. Weren’t most people at the time relieved that Orbán’s Fidesz got 53% of the vote instead of splitting the conservative vote with the neo-Nazis?
The Fidesz victory in 2010 looked like a safe vote; Orbán had been in power once before and Hungarian democracy had not appeared in danger. During his campaign, he never once mentioned a constitutional revolution, which he launched as soon as he came to power. Instead, 2010 was an election in which voters eschewed the untested (LMP), failed (Socialist) and dangerous (Jobbik) choices to vote for a party whose normal turn was up. Most had no idea that Fidesz had ceased to be a party committed to democratic norms but instead was a vehicle for bringing Orbán into the position of dictator.
Or take Hugo Chávez’s original victory in 1998. Chávez’s Fifth Republic Movement Party (more a social movement than a party) was on the ballot for the first time. Chávez’s main competitor also ran with the backing of a social movement without the imprimatur of a known party. In fact, by 1998, all of the traditional parties had been in slow-motion collapse for years and had practically vanished from the scene. Voters were in a real sense choosing between individuals who propelled themselves to the front ranks of social campaigns, not between parties that stood for a well-honed set of positions or that had the power to vet candidates for their dangerousness to constitutional democracy. The voters voted to rotate power in 1998, but the person who won had no intention of maintaining constitutional democracy. Alert voters might have been suspicious of Chávez, who after all had tried to lead a coup the previous decade. But it also wasn’t crazy to believe that he had turned to democratic politics sincerely and in fact most of his support came from voters with strong support for democratic values. His campaign speeches didn’t give his plans away. Typical voters would not have known that Chávez would take steps to lock in his own power forever.
I think you can tell a similar story about Modi in India (when BJP solidified its national standing after the Congress Party had been in power for too long and nearly collapsed), or Netanyahu in Israel (after parties of the left had all but disappeared so electoral competition narrowed), or even Brexit (which started as a fight within the Tory Party and ended with UK divorcing the EU with other political parties too weak and disorganized to provide alternatives). PiS, Jaroslav Kaczynski’s party in Poland, only won in 2015 after the party leaders reassured voters that the evidently autocratic Kaczynski would never play a major role. But they lied. Who else should voters have supported? The main alternative, Civic Platform, had been in power so long that even some its own former supporters peeled off to vote for an alternative liberal party, thus fatally splitting the opposition vote. In short, there’s almost always a story about dysfunctions in the party system that precedes the collapse of democracy into autocracy.
And there’s another lesson to be learned from comparison. In most cases when the autocrat comes to power and overthrows the democratic system, the autocrat doesn’t usually do serious damage on the first round. Orbán and Kaczynski crashed their democracies the second time they came to power. Chávez was not the first president who had won as the head of a social movement – but the second. The Tories were in and out of government several times before Brexit caught up with them and turned parliamentary government into an afterthought of executive power; Netanyahu became increasingly more dangerous to constitutional-democratic values the longer he stayed in office. Putin and Erdogan governed first as democratic reformers before, after at least one term in power when it seemed they would strengthen their democracies, they turned to democratic destruction. In short, established democracies aren’t knocked over with the first blow. As with the coronavirus that we are all living through at the moment, the second wave is worse.
I could go on (and readers of this blog should chime in with examples and counter-examples). But I think that the evidence from backsliding democracies show that the most important thing one can do to shore up a democratic government’s future is to strengthen parties so that there is healthy competition and so that one doesn’t have to fear autocratic consolidation if any of the parties wins.
Given what we know about the dangers of democratic backsliding, then, I think that one of the most urgent tasks of rebuilding American democracy between now and the next national election in two years requires a radical renovation of the Republican Party (or a successor party) so that it is no longer an anti-democratic and anti-constitutional party. Otherwise, US democracy will be in danger as long as almost all of the constitutional democrats are in only one of the political parties.
Suggested citation: Kim Lane Scheppele, Symposium on The Legacies of Trumpism and Constitutional Democracy in the United States – The Life of the Party, Int’l J. Const. L. Blog, Jan. 23, 2021, at: http://www.iconnectblog.com/2021/01/symposium-on-the-legacies-of-trumpism-and-constitutional-democracy-in-the-united-states-part-iv-the-life-of-the-party/