*Published with the generous permission of Teri Kanefield. Read all of her writing here.
By Teri Kanefield
This week, I will address these questions:
My method will involve a journey through the work and writings of the following:
I will use, as an example of how to do democracy right, Biden’s response to what we might call the Garland Hecklers.
How Democracies Die, by Steven Levitsky and Daniel Ziblatt (2018)
Levitsky, in this lecture, describes what we are experiencing as a “political earthquake” as the United States transitions from a democracy in which democratic institutions almost entirely benefited white men to a multi-racial and multi-cultural democracy. We’re feeling the shocks and tremors of the transition and the rattling of GOP hardball tactics.
As long as the Republican Party clings to the policies that cater to the desires of a shrinking portion of the electorate, the long-term prospects of the Republican Party are not good. In contrast, the Democratic Party—the party of urban intellectuals, minority communities, and women—is expanding and has excellent medium and long-term prospects.
From Levitsky: We don’t respond to earthquakes by applying more pressure to weakened structures. Instead, we move quickly to strengthen the weakened structures to prevent them from collapsing further.
Because the Democrats have excellent medium and long term prospects, it’s in their best interests to preserve (not further stress) the institutions.
By the time Ziblatt and Levitsky were writing How Democracies Die, the mantra that “Democrats need to fight like Republicans” was so widely repeated on left-leaning social media and by left-leaning political commentators that the authors, in their book, addressed it:
In the wake of the 2016 election, many progressive opinion makers concluded that Democrats needed to “fight like Republicans.” If Republicans were going to break the rules, the argument went, Democrats had no choice but to respond in kind. Acting with self-restraint and civility while the other side abandoned forbearance would be like a boxer entering the ring with a hand tied behind his back. When confronted with a bully who is willing to use any means necessary to win, those who play by the rules risk playing the sucker. (p. 213).
Ziblatt and Levitsky call the approach of fighting like Republicans “misguided.” Copying authoritarian tactics plays into the hands of would-be authoritarians and weakens democratic institutions.
They stress that this doesn’t mean Democrats should be passive, acquiescent, or abandon vigorous opposition. Instead, Democrats should use what Georgetown Law professor David Pozen calls Anti-Hardball Reform.
It turns out that most voters don’t like being told they can’t vote or their votes shouldn’t count. Despite voter suppression attempts, 2020 saw a spike in voter turnout among Democrats.
Pozen, in a piece called Hardball and/as Anti-Hardball, suggests what he calls “anti-hardball” responses as a way to blunt Republican power grabs without putting additional pressure and stress on the democratic institutions.
An anti-hardball tactic is a good-government rule that the party creating it would agree to if the other side suggested it. Anti-hardball tactics seek to blunt norm-breaking power grabs without further stressing the institutions and without inviting retaliation.
Anti-hardball tactics “forestall or foreclose tit-for-tat cycles and lower the temperature.”
As an example, Pozen suggests that voters should respond to GOP voter suppression and voter roll purges by mobilizing volunteers to re-register voters and drive people to polls. Kamala Harris, at a fundraiser held remotely on August 12, 2020, said something similar. Someone asked her the best way to respond to the widespread voter intimidation tactics being used in certain states. She said, “I view it as a challenge,” and then added that Americans are “strong” enough to go around whatever barriers the opposing party erects.
In this video that went viral on Tiktok, Belinda Varnado explains how she uses anti-hardball tactics to blunt Republican efforts to discourage her from voting. (I am having trouble linking to the original video, but this link should work.)
I was so impressed with How Democracies Die that I looked for other works by the same authors. That was how I learned that there is a thing called competitive authoritarianism.
Because the slide from a democracy to an autocracy often happens gradually, the world has seen a rise in hybrid political regimes that combine aspects of authoritarianism with aspects of democratic governance.
In a competitive authoritarian government, formal democratic institutions are widely viewed as the principal means of obtaining and exercising political authority, but because incumbents so often violate the rules and norms of democracy that these regimes fail to meet the minimum standards for democracy.
(Competitive authoritarianism is different from a facade democracy, which has elections and the trappings of democracy, but elections have no meaning: Regardless of how people vote, the “results” are determined by the government.)
For a government to be democratic, it must meet these four criteria:
A democratic government can at times violate one or more of these four, but (to remain a democracy) the violations cannot be systematic enough to entirely diminish the power of opposing political parties. A government classified as competitive authoritarian, however, violates these four often enough to create an uneven playing field between the government and opposition to the government.
Competitive authoritarian regimes can come about in two ways: An autocratic government can move toward a democratic one and transition into a competitive authoritarian regime, or a democratic government can backslide into competitive authoritarianism.
While democracies can be unstable and can backslide, given modern communications and media, a totalitarian government is difficult to maintain.
For what follows I will also draw on conclusions from Prof. Dannagal Goldwaithe Young’s book, Wrong: How Media, Politics, and Identity Drive our Appetite for Misinformation, which I talked about at length here.
According to the European think tank International IDEA, the United States was labeled a backsliding democracy in 2021. The cause of the backslide was Trump’s refusal to admit he lost the election, the refusal of his supporters to admit or believe that he lost, and the attack on the capitol resulting from the refusal of Trump and his supporters to admit that he lost the election.
Susan Hyde, a professor of political science at the University of California, Berkeley, responded to the finding that America is a backsliding democracy by saying the outlook isn’t all bleak for American Democracy.
“We’ve seen increasing levels of electoral participation in the U.S., particularly in the last elections.”
“And we saw a 7% increase of voter turnout, which marks the highest turnout in any federal election in the U.S. since at least 1980. So that’s one very positive development — that there is more political engagement and more participation in elections.”
“There were also more women appointed to Congress than ever before. . . “We’ve seen a 50% increase of women’s representation compared to a decade ago, the highest percentage in U.S. history now with 27% of members of Congress being women,” Silva-Leander said. . . . “It’s still low compared to many other countries, but it’s an increase compared to where the U.S. was a decade ago.“
Professor Hyde also said, “The U.S. is most effective at promoting democracy when it admits that democracy requires maintenance and is an ongoing struggle.”
The Garland Hecklers
This brings me to what we might call the Garland Hecklers who promoted a version of the ‘Democrats should fight like Republicans’ mantra. I am using this example because I’ve already chronicled the progression of the Garland Hecklers, including debunking their claims.
The Garland Hecklers were a vocal and highly visible group on the left side of the political spectrum who heckled Garland all through 2021 and into 2022 claiming, among other things, that he was “deliberately slow walking” the Trump investigations. Some demanded that Garland announce that he was investigating Trump. Failing that, they demanded an “overt action” to show that Garland was “going after” Trump. (For citations, see this post.)
Some insisted that an extensive evidence-gathering investigation was not necessary. Some even claimed that Trump should have been “arrested” within months of the January 6 attack. One well-known TV lawyer wanted Garland to “flip some tables” and behave the way Republicans would have behaved. He cited examples of Republicans defying norms and playing hardball by using prosecutors to do the bidding of the president.
(If you agree with the above statements, first read this post and then click here and start reading for why you fell for this misinformation.)
Prosecutorial independence is one of our democratic institutions. In an autocratic government, the autocrat decides who should be investigated and prosecuted. In an era of mob rule (lynchings) the mob decides. The way our government is structured, an independent prosecutor decides by following the rules and guidelines in place.
Garland explained repeatedly that what the hecklers were demanding was contrary to the established norms of how investigations are conducted and that it was important to follow the rules. (For an example of Garland’s response, click here.)
In response, the hecklers mocked his words as “weak.” (Citations here.)
Note: Not all the lawyers who jumped onto the Garland Heckling bandwagon were advocating rule breaking and norm busting. Many can be described as reflectors: They were simply reflecting back and amplifying what others were saying. (For more on legal pundits who act as reflectors, see this post.)
Both Garland and Biden ignored the hecklers. Given what I’ve written thus far, it should be obvious why, but let’s march through a few reasons for fun. (This is fun, isn’t it?) Besides, exploring other reasons gives me the excuse to talk about another interesting book.
Reason #1: Giving in to the Garland Hecklers would have further deteriorated the DOJ
We know that Biden read How Democracies Die. It was reported that, in 2018, Biden — who generally reads biographies — “became obsessed with two books: How Democracies Die by Steven Levitsky and Daniel Ziblatt, and “White Working Class: Overcoming Class Cluelessness in America,” by Joan C. Williams. “He carried both everywhere, scrawling notes on the pages and pulling out well-worn copies to share passages.”
When Biden introduced his leadership team for the Justice Department, including Judge Merrick Garland as his choice to be U.S. attorney general, he said, “We need to restore the honor, the integrity, the independence of the Department of Justice that has been so badly damaged.” By “badly damaged,” he was, of course, referring to the way Trump had tried to weaponize the Justice Department to do his bidding.
The way to restore the integrity of the department is to follow the rules and norms. This means conducting the investigation the way the DOJ traditionally investigates complex crimes, which in turn means, among other things, not announcing the targets or subjects of investigations. This protects the civil rights of people being investigated and protects the integrity of the investigation and insures that all people under investigation are treated the same.
Reason #2: Giving in to the hecklers would have meant making the same mistake that the Republicans made: Biden would have been catering to a small portion of the population while alienating the majority.
Yanna Krupnikov and John Barry Ryan’s book, in The Other Divide: Polarization and Disengagement in American Politics, offers this insight: The biggest divide in America isn’t a partisan divide between Democrats and Republicans. The divide is in how engaged Americans are with politics.
The way to destroy democracy is by breaking norms and the way to save an ailing democracy (or rescue an autocracy) is with more democracy.