19 May 2017 — 0708 mdt
Our democracy cannot survive many more
elections as ugly as Gianforte v. Quist
The special congressional election that ends on 25 May has become Montana’s most expensive congressional election, and possibly its dirtiest. Some of the right wing attacks on Rob Quist are so ugly they qualify as depraved, and liberals have lowered themselves to suggesting that Greg Gianforte may be in cahoots with Russia and is guilty of carelessness that gives aid and comfort to the terrorists of ISIS. In my judgment, the GOP’s excesses have been far worse than the Democrat's.
Politics has never been beanbag, but the current level of viciousness has few historical precedents, and if continued will erode, and erode rather quickly, our ability to govern ourselves. What’s kosher in a civil society society is defined not just by a constitutional structure and law, but also by social and political norms, by which I mean generally accepted informal boundaries on what is legitimate in political discourse and governing.
Yale law professor Jack Balkin addressed that earlier this week in a must read essay, Constitutional Rot and Constitutional Crisis. Here’s an extensive excerpt that should sober even the most reckless among us:
What is constitutional rot? Democratic constitutions depend on more than obedience to law. They depend on well-functioning institutions that balance and check power and ambition. These include not only public institutions but institutions of civil society like the press.
Next, democracies depend on the public’s trust that government officials will exercise power in the public interest and not for their own personal benefit or for the benefit of private interests and cronies.
Democracies also depend on forbearance on the part of public officials in their assertions of power, and obedience to norms of fair political competition. These norms prevent ambitious politicians from overreaching and undermining public trust. These norms help to promote cooperation between political opponents and factions even when they disagree strongly about how to govern the country. Finally, these norms prevent politicians from privileging short term political gains over long term injuries to the health of the constitutional system.
When politicians disregard norms of fair political competition, undermine public trust, and repeatedly overreach by using constitutional hardball to rig the system in their favor, they cause the system of democratic (and republican) constitutionalism to decay. This is the phenomenon of constitutional rot.
The idea of constitutional rot is very old. The political theory of republicanism familiar to Constitution’s founders asserted that republics were delicate institutions that were always susceptible to decay and corruption over time. Time was the great enemy of republics, because ever-changing circumstances, and the driving force of people’s ambitions and desire for power would open the door to—if not encourage—multiple forms of institutional corruption. In modern democratic republics, this institutional corruption is a version of constitutional rot.
II. The Dangers of Constitutional Rot
Constitutional rot creates two serious risks to democratic politics. First, by playing too much hardball, demonizing their opposition, and attempting to crush those who stand in their way, political actors risk increasing and widening cycles of retribution from their opponents. This may lead to deadlock and a political system that is increasingly unable to govern effectively.
Second, undermining or destroying norms of political fair play and using hardball tactics to preempt political competition may produce a gradual descent into authoritarian or autocratic politics. Such states may preserve the empty form of representative democracy—they may have written constitutions and regular elections; and they may adhere for the most part to the rule of law formalities. But power is increasingly concentrated and unaccountable; the press, civil society, political opponents, civil servants and the judiciary no longer serve as independent checks on the power of the people in charge. Indeed, political leaders may systematically seek to weaken or co-opt each of these possible sources of opposition. These features of constitutional rot are likely to lead to increasing corruption, overreaching, and suppression of basic liberties. Regimes that slide into autocracy or authoritarianism may not suffer constitutional crises in the sense that they are politically stable and successfully avoid civil unrest or civil war. But they have failed as democratic constitutional systems; increasingly they are democracies in name only.
Obviously these two risks—deadlock and descent into autocracy—are related. A system that has become so deadlocked that politics seems futile may lead to the election of demagogues and authoritarian minded politicians who undermine democratic norms and lead a nation toward autocracy.
Our democracy, and the freedoms and prosperities that depend on it, cannot endure much more coarsening and cheapening of our political discourse. It’s not just politicians and elected officials who are conducting themselves unwisely. Many voters have become so angry they are not thinking clearly about the consequences of casting protest votes for demagogues, zealots and fools. We are very close to sinking into the abyss that consumed 1930s Europe and led to catastrophic war.