Gerrymandering and minority rule, not populism, threatens democracy

There is a very real threat to liberal democracy in Trump’s America, but it has nothing to do with populism. In fact, populism — an insistence that government authority reflect the will of the people — could be a big part of the solution to the current crisis.

Trump looks and sounds like a populist, a leader who whips up his supporters into chanting anti-democratic slogans like, “Lock her up!” But behind the horrible spectacle is a very different threat: the tyranny of an unaccountability minority.

The most egregious examples are playing out right now in states ranging from North Carolina to Michigan to Wisconsin, where the GOP increasingly has an answer to the problem of what you do if you lose elections — ignore the outcome and just change the rules to avoid giving up power. Even more alarmingly, in both of the aforementioned Midwestern states, the GOP has been confirmed in its legislative majorities despite large popular vote losses, due to gerrymandering.

Trump’s governing agenda, meanwhile, has been an unpopular set of initiatives supported by members of Congress who believe themselves, often correctly, to be insulated from popular will by electoral maps. Trump’s greatest policy impact is almost certainly coming from lifetime appointments to the federal judiciary, which will help further entrench conservative policies in places where it is beyond political control.

Democrats took the House in a blue wave, but their ability to change policy is limited. The resistance to Trump — the largest and most powerful social movement in generations — needs to enter a more radical stage that goes beyond electoral advocacy to include civil disobedience and direct action.

American political history is a story of the fight to live up to our founding ideals. Civil rights advocates registered voters and encouraged people to go to the polls, but given the fundamental repressive reality of Jim Crow, they employed acts of civil disobedience from sit-ins to marches to boycotts that shut down commerce. They made life uncomfortable for the ruling Southern class and forced institutional change.

Now the resistance is going to have to find opportunities to do something similar, and make the rolling crisis Trump and Republicans have unleashed on American democracy something that’s discomfiting in tangible ways for the business executives and economic elites who are the real beneficiaries of Trump’s politics.

There has always been more to democratic self-government than “majority rules,” but the notion of will of the people is a powerful one, one that asserts democratic accountability as the core to a free society. The anti-Trump resistance is bewitched by the specter of populist autocracy. But they need to deploy the rhetorical and organizational tools of a populist movement.

The menace of populist authoritarianism

The specter of majoritarian tyranny has long stalked Western political thought. The founding generation of the American Republic was deeply troubled by the notion of a charismatic demagogue who might gain the allegiance of the people and use the legitimacy they bestowed upon him to undermine the rule of law and the liberal order.

That’s why they devised a system of government that not only featured separation of powers between branches but also eschewed the direct election of either the president or the US Senate.

Their fears were realized shortly after the Constitution’s promulgation when the charismatic young general Napoleon Bonaparte seized power in a coup d’état that he followed up with a quick plebiscite to demonstrate his popular support. Plebiscitary dictatorships of this kind became an entrenched aspect of the political scene in later decades.

In today’s world, a number of leaders broadly fit the model of Fareed Zakaria’s mid-1990s warning about the rise of “illiberal democracy.” From Orbán in Hungary to Duterte in the Philippines to Erdogan in Turkey, there are leaders who ride to power on a wave of genuine popular support and then wield that popularity to trample on the institutional constraints on their power. Brazil’s newly elected president, Jair Bolsonaro, has not yet gone down this path, but his track record of statements praising Brazil’s former military dictators unquestionably raises the prospect that he will.

Faced with the threat of populist authoritarianism, the appropriate response really is to retreat to institutionalism and legalism as defenses of the liberal order against the passing madness of the crowd. The title of Yascha Mounk’s Trump-era book The People vs. Democracy: Why Our Freedom is in Danger and How to Save It captures the spirit of this well.

But while that may describe the situation in Europe or Brazil, it is most definitively not what is happening in the United States. Here, the forces curbing democracy do not have popular support. They are relying, instead, precisely on their control of institutions and constituted legal authority. They do so with the enthusiastic blessing of the Chamber of Commerce and the bulk of the business community.

Populist authoritarianism, in short, is not a phantom, and it’s absolutely true that the practice of durable democratic self-government has always involved more than majority will or occasional elections. But critically, even though Trump strongly echoes many of these populist authoritarians in his personal style, the actual crisis of democracy playing out in the United States has essentially nothing to do with this.

Establishment Republicans are leading the charge against democracy

While populist autocracy is a real phenomenon in global politics, it happens to be the No. 1 problem the authors of the US Constitution had in mind when designing our system of government. That system, for all its considerable flaws, is quite robust to resisting efforts to create a personalist dictatorship.

The Senate’s large “advise and consent” role is particularly critical. It’s fairly clear from Trump’s public statements and his conduct vis-à-vis the Department of Justice that he would like to staff both the executive branch and the judiciary with personal loyalists who have few if any ideological commitments. But he can’t actually accomplish this.

To fill posts on a permanent basis, Trump needs a working majority in the Senate, and that means appointing slates of ideologically reliable conservative Republicans. Trump does try to find and exploit loopholes in this system — hence acting Attorney General Matthew Whitaker — but by and large, “the system works.” Trump is delivering appointments to both judicial and regulatory agencies drawn from the same basic Federalist Society and Heritage Foundation lists that anyone plugged into Republican Party establishment institutions would deliver.

The problem is that those institutions themselves are deeply hostile to democracy:

  • When Democrats won the North Carolina governor’s mansion in 2016, the state GOP used the lame-duck legislative session to strip the governor’s office of powers.
  • When Democrats won the Wisconsin governor’s mansion in 2018, the state GOP rolled out the same playbook — this time expanding the power-stripping to the attorney general’s office, which Democrats also won.
  • They are now doing the same thing in Michigan, where they are also engaging in shenanigans to avoid implementing a minimum wage increase that the legislature passed earlier in the year specifically to prevent a minimum wage increase from appearing as a ballot initiative.
  • Meanwhile, there appears to have been systematic election fraud committed on behalf of the Republican candidate in a House election in North Carolina, and zero national figures in the GOP have anything to say about it. They’ve used hysteria about the basically nonexistent problem of ineligible voters trying to impersonate eligible voters to enact a series of voter suppression laws in states all around the country.

Of course, interbranch conflict laced with partisanship is not new in America. But the typical remedy for a legislature acting to defy popular will would be to mobilize the public backlash to their unpopular actions and beat them at the ballot box. But Republicans already lost the popular vote for state legislature in both Wisconsin and Michigan, and they nonetheless won majorities of seats because of gerrymandering. In North Carolina, the GOP won a narrow majority of votes but has carried a larger majority of seats thanks again to gerrymandering.

Reformers were once optimistic that the Supreme Court might act to curtail these kinds of partisan gerrymanders, but in a key case last year, former swing Justice Kennedy sided with the four more conservative justices to decline to act. Then Kennedy retired in a manner timed to ensure that he’d be replaced by an even more conservative justice.

Meanwhile, following Democrat Doug Jones’s victory in the 2017 Alabama special Senate election, Senate Majority Leader Mitch McConnell basically gave up on trying to advance a legislative agenda since he knew House Republicans’ ideas were too unpopular to be viable in a narrow Senate.

Instead, he focused on confirming as many Federalist Society judges as possible. And with the House now in Democratic control, this trend will only continue. Once installed on the court, Republican appointees will rule reliably in favor of business interests in litigation against labor groups, consumer plaintiffs, or regulatory agencies while greenlighting the mix of gerrymandering, vote suppression, and procedural hardball that has entrenched Republican control over the preponderance of American state governments.

Trump is, of course, a big part of this story. If Hillary Clinton were in the White House, things would be going differently. But this is not a personalistic story about Trump at all. The attacks on democracy are consensus views in the institutional Republican Party and the larger conservative movement. The trouble comes not from a populist demagogue trampling on institutional constraint but from countermajoritarian institutions being deployed to stymie popular will.

A countermajoritarian crisis

The backdrop to this entire affair is that Trump got elected to the White House after losing the popular vote 46-48. That made him the second Republican presidential candidate in recent history to secure the White House thanks to an Electoral College quirk, rather than support among the mass public.

House gerrymandering was not enough to save the GOP majority in 2018, but the extent to which gerrymandering “mattered” remains striking:

  • In 2010, Republicans won 51.7 percent of the vote and got 242 seats.
  • In 2014, Republicans won 51.2 percent of the vote and got 247 seats.
  • In 2018, Democrats won 53.4 percent of the vote and got 235 seats.

It’s not, in other words, that gerrymandering makes it impossible for Democrats to win. But it puts a consistent skew on the political system. Narrow majorities of popular support translate into big majorities of seats for Republicans, while a larger majority of votes translates into a narrower majority of seats for Democrats.

In the Senate, things are much worse, and Democrats would need to win an enormous landslide of votes to secure even the barest majority of seats.

None of these individual circumstances are, on their own, unprecedented in American history. A 2-point edge here in the Electoral College, a Supreme Court majority that can advance a policy agenda while insulated from popular backlash there, a skew in Senate geography here, a helpful gerrymander or two — these are all the kinds of things that happen under the American constitutional system. But the 21st century has unfolded — in part by coincidence and in part by design — in a way that has lined them all up in a single direction.

And the basic pattern continues. The most procedurally outrageous aspect of the lame-duck Wisconsin GOP power grab is the post-election limitation of the powers of the governor’s office. But lawmakers are also adopting changes to voting rules design to limit participation and thus help Republicans win in the future. Florida’s Republican-held state legislature, meanwhile, is currently hard at work on strategies to undermine a recently passed ballot initiative that is supposed to restore voting rights to felons.

This is an important matter for the state GOP because implementing the felon enfranchisement law may have been enough to reverse the result of the 2018 Senate race and possibly the gubernatorial election as well.

The steady erection of a system of minority rule that Republicans are implementing is not as dramatic as a populist putsch. But it’s actually happening before our eyes. And it’s led not by the rabble-rousing president or the unwashed masses who thrill to his rallies, but by the elite network of donors, operatives, and politicians who run the Republican Party and the conservative movement.

Populism is the answer

The truth about America is that rigged elections are not new.

For nearly a century after the collapse of Reconstruction, the political order in the Jim Crow South was maintained by the systematic disenfranchisement of the region’s large African-American population.

Electoral politics was certainly an important part of the process that led to that system’s demise, but it was only a part. Direct action and civil disobedience — not just marches and protests, but systematic efforts to make life difficult for Southern institutions and power structures — were famously integral to forcing change.

The wave of sit-ins that struck Southern branches of national chains in 1960, for example, sought to force both store employees and local police to engage in the costly hassle of actually enforcing unjust laws — massively raising the cost of segregation and inducing executives in the home office to rethink their commitments. A nonviolent 25-day occupation of the Department of Health, Education, and Welfare office in San Francisco in 1977 helped force the hand of then-HEW Secretary Joseph Califano to finally promulgate long-promised, long-delayed regulations protecting the rights of Americans with disabilities.

Across 1987 and 1988, ACT UP activists disrupted everything from Broadway plays to the New York Stock Exchange to the main Manhattan post office, eventually forcing a one-day shutdown of the Food and Drug Administration and successfully pressuring both the private sector and the government to cut prices and boost availability of HIV treatments.

This month, as Republicans in Wisconsin and Michigan were working to undo the people’s will as expressed at regularly scheduled elections, the elder statespeople of the Democratic Party were gathered in Washington for the funeral of George H.W. Bush — a funeral that, as such funerals do, served as a bipartisan sanctification of the American political system. In its bipartisanship and dignity, the funeral (like John McCain’s funeral before it) was widely read in the press as a rebuke of Trump’s crassness and outlandish behavior. And it certainly was that.

The face of anti-democratic rule in America is President George W. Bush appointing Supreme Court justices who handed down a Citizens United ruling whose substance would have been far too unpopular to enact legislatively. It’s the flood of money unleashed by Citizens United increasing the average GOP share of seats in state legislatures by 5 percentage points. It’s GOP state legislatures using the conjunction of that bonanza with the 2010 census to redraw maps in a way that lets them continue to hold power with a minority of votes. And it’s gerrymandered, minoritarian legislatures restricting the voting franchise and aggrandizing their power over popularly elected statewide officials.

But there’s an impulse to rebuke the Trump-specific aspects of the contemporary political crisis while bolstering the overall legitimacy of the American political order, and it’s counterproductive to the actual crisis facing American democracy.

Because this process is being carried out in accordance with the law and the institutional order, the appropriate response is extra-institutional and extralegal appeals to the sovereign authority of the people. That, in turn, requires popular mobilization not just with appeals to abstract democratic “norms” but in showing who benefits from minority rule (rich people) and why (to advance their material interests).

In a word, it needs to be defeated with populism.

Not the populism of lawlessness and oppression of cultural minority groups, but a populism that is self-confident enough to proclaim that the will and interests of the majority has a special claim to political legitimacy. A claim over and above the formalism of what’s “allowed” in a world of gerrymandering and lifetime political appointments.

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