As Scott notes, the Wisconsin Republican legislature is on the brink of engaging in an “abuse of power” that underscores how “extreme gerrymandering” of the kind found in Wisconsin, North Carolina, and Ohio “is destructive of democracy.” After all it “is essentially impossible for Republicans to lose the assembly under the current rules no matter how badly they get outvoted there’s no reason not to prevent the people who actually get popular majorities from governing.” Jonathan Bernstein calls this “constitutional hardball”:
That’s when political parties pass laws or take other actions that violate norms in ways that really undermine democracy – something that turns out to be quite possible in our system, because many of our ground rules are actually only norms that, until recently, everyone mostly abided by.
Both parties have engaged in this kind of behavior, of course, but Republicans have done so far more often over the past two decades. And now they’re at it again.
This time, what they’re attempting to do – in Wisconsin and Michigan, just as they did in North Carolina previously – is to change laws after losing an election so that the winners lose their ability to govern. In Wisconsin, where a new Democratic governor and attorney general were elected last month, the Republican-majority legislature is trying to pass laws that would strip both offices of some of their powers.
As Donald Moynihan says, “Politicians who change the rules of the game because they don’t like the outcomes are a danger to democracy.” It’s one thing for legislators on their way out to use a lame-duck session to nail down a few more policy gains if they have the votes to do so (and assuming that such sessions are regularly held in the state). It’s another to negate the results of an election by stripping the winner’s rightful powers. As Kevin Drum puts it, “Republicans are no longer committed to that whole peaceful transfer of power thing.”
“Constitutional hardball” is too polite a term for how the Republican party uses voter suppression and gerrymandering to rig the electorate in its favor, and when even that fails does its best to invalidate the results. All of this amounts to incremental steps toward electoral authoritarianism. It is clear that, if the opportunity presented itself, the current Republican party would be perfectly happy for the United States to become a full-on hybrid regime. Its behavior in the face of the Trump presidency is merely the final proof that the party cannot be trusted to ever put the fate of democratic institutions before its own power.
Who will stop them? Clearly not the Supreme Court, which has aided and abetted voter suppression. Liberal and left-wing voters who sat out 2016 missed their opportunity to help secure a more democratic future for the country. The game may, in fact, be over. As the Senate becomes even more malapportioned, and the Federalist Society takeover of the judiciary reaches its completion, it will prove harder and harder not only to enhance American democracy, but to simply preserve the substantial gains in representative democracy achieved by progressives before World War II and by civil rights activists during the Cold War.
Bernstein points out that the “problem with constitutional hardball – the thing that makes it so insidious – is that once one side does it, the other has a terrible choice: Match their opponents, violation for violation, even though it could destroy the polity. Or refuse to match them, and thereby give them permanent advantages.” I agree, but I’m not sure that there’s much of a dilemma anymore. The choice is between eroding procedural norms that Republicans view as disposable anyway, or preserving genuine representative democracy.
This means, in practice, that we need to treat the outcome of 2020 as if American democracy depends on it, twice over: once in terms of defeating Trumpism and once in terms of reversing general Republican democratic backsliding. If Democrats do succeed in achieving unified control of the legislative and executive branch at the national level, they may well need to end the Senate’s legislative filibuster in order to expand the size of the judiciary—and follow up with serious attention to judicial reform—while strongly asserting Congress’s 14th amendment power to prevent authoritarian backsliding in the states. The test is not whether these actions strain procedural norms; it’s whether they make the country more of a liberal democracy.
Of course, the outcome of the 2020 election may also determine whether humanity to successfully mitigates catastrophic climate change, but that’s a discussion for another time.