In Michigan and Wisconsin, lame duck Republican-majority legislatures are enacting laws to limit the powers of incoming Democratic governors. Two years ago in North Carolina, the same happened. These moves are particularly striking examples of recent aggressive Republican procedural hardball. Whatever the right rules are for the separation of powers, they should apply to both parties and not be changed opportunistically.
.. Should they go tit-for-tat and escalate procedural shenanigans, rules-stretching and rules-breaking? Or should they strive, leading by good example, to maintain a system of norms that have provided political stability in the hopes that a more moderate, reasonable Republican Party will re-emerge?
.. Retaliating in kind could aggravate already deep polarization and wreck what’s left of our political norms. Restraint, on the other hand, would establish new norms that establish electoral disadvantages for Democrats and embolden Republicans.
.. There is a better option, and it also happens to be the best option. Democrats can use the Republican hardball against them by weaving together the Michigan, Wisconsin and North Carolina cases into a larger story to take to voters in 2020: the indictment of Republican attacks on democracy accompanied by an aggressive reform agenda for strengthening constitutional norms and democratic procedures.
.. But a very clear narrative or popular revulsion — or both — can change that. Examples are found in the Progressive Era around the turn of the 20th century and again in the immediate aftermath of Watergate, when procedural reform gained traction, for better or for worse, and both term limits and campaign finance reform had moments of widespread popular enthusiasm. There’s good reason to think that the next two years offer the opportunity to create such a corruption narrative and to take advantage of what’s likely to be growing revulsion.
.. President Trump’s administration has made this job easier: The midterm election results showed that its scandals and disgrace have already focused voters’ attention. That’s not the time for retaliation and escalation. It’s the time offer prescriptions for rebuilding the rules that accompany a diagnosis that helps voters make sense of how badly wrong things have gone. Democrats can try to punish Republicans at the ballot box by trying to strengthen rather than weaken democratic norms.
The obvious place to begin is with the White House itself. Proposals to
- require presidential candidates to disclose their tax returns,
- give teeth to the Emoluments Clause,
- strengthen anti-nepotism rules that should keep unqualified family members out of sensitive offices,
- extend conflict-of-interest rules to include the president, and
- turn blind trust norms into binding rules
won’t be hard to understand under Mr. Trump. They will reinforce voters’ distrust of the president while also offering ways to prevent his abuses from becoming standard practice.
.. Republican procedural abuses at the state level precede the Trump administration, but they can fairly be connected to it. Most important is disenfranchisement. Democrats should emphasize the sustained nationwide Republican effort to limit access to the ballot and offer proposals to
- restore the Voting Rights Act,
- end felon disenfranchisement,
- undo restrictive voter identification rules,
- ease registration,
- protect early voting and
- ensure that voting places are more widely and evenly distributed.
Not only has Mr. Trump been on the wrong side of those issues, encouraging state crackdowns on imagined millions of noncitizen voters; but voting restrictions in narrowly won Midwestern states got him closer to the White House in the first place... Other proposals, from statehood for the District of Columbia to gerrymandering reform, then make sense as part of the same effort to strengthen representation and fair democratic practice.
.. This is also the best approach for Democrats in the short term because they’re not in a strong position to retaliate even if an angry activist base wants them to. Despite some losses last month, Republicans remain in control of more governor’s seats and more state legislatures. More important, making things worse right now really is the wrong thing to do. If Democrats follow a course of unrestrained but legal tactics, we could find ourselves embroiled in even more severe dysfunction and a constitutional crisis. Tit for tat is sometimes necessary to enforce norms, but escalation in an already seriously polarized environment is dangerous.
.. If Democrats can offer a unifying indictment tying Republican attacks on democratic norms to Trump administration abuses, along with a coherent package of serious proposals to restore procedural fairness, voters will have a way of making sense of new examples of Republican sharp dealing.
.. Proposals to shorten lame duck legislative sessions and to constrain their authority, for example, would reinforce the idea that Republicans have been the party of procedural abuses and unfairness while still setting forth a good neutral rule.
.. This is the alternative to doing nothing or making things worse: seek to punish Republicans in 2020 by offering a vision of how to make things better.
With Democrats set to take over top statewide offices next year, Michigan Republicans are considering proposals that would allow the Legislature to intervene in legal battles and shift oversight of the state’s campaign finance law to a new commission.
The lame-duck power plays would limit the power of Gov.-elect Gretchen Whitmer, Attorney General Dana Nessel and Secretary of State Jocelyn Benson. Democrats have not held all three posts since 1990.
A House bill introduced Thursday by state Rep. Rob VerHeulen, R-Walker, and quickly praised by Republican leaders seeks to guarantee the GOP-led Legislature could intervene in legal battles involving state laws that Democrats may be hesitant to defend.
A separate proposal from Sen. Dave Robertson, R-Grand Blanc, would shift oversight of the Michigan Campaign Finance Act from the Secretary of State’s Office to a newly proposed “fair political practices commission.”
Verheulen denied his bill would supplant the authority of the attorney general, though it likely would give the Legislature a voice in ensuring the rationales for laws the House and Senate passed get defended in court.
“More and more public policy arguments are being made in the courts rather than in the legislative chambers, and I think there may be occasions where the House or the Senate or both want to simply express their view before the court,” said VerHeulen.
Nessel, in her winning campaign for attorney general, said she may not defend state laws she views as unconstitutional, including a 2015 law that allows faith-based adoption agencies to decline working with gay residents. Same-sex couples have sued the state over the law, and the litigation remains in court.
.. “Those legislators pushing this law should be reminded that the people elect their attorneys general and their governors and such a proposal — should it pass — would have a dramatic and disastrous impact on the state of Michigan and its residents for years to come,” Rossman-McKinney said.
Benson will be the state’s first Democratic secretary of state since 1994, but Robertson’s proposal would strip her office of a key responsibility by creating a new commission to oversee campaign finance laws.
.. “Legislative Republicans are now trying to thwart the will of the voters with bills that ignore their voices, (defy) history and will make Michigan a national punch line by effectively ending enforcement of the campaign finance laws they are required to abide by,” Boyd said in a statement. “It’s shameful.”
A longstanding Michigan law gives the attorney general the authority to intervene in any civil or criminal case “when in his own judgment the interests of the state require it” but does not give special privileges to legislators, who can ask judges to intervene in cases but are not guaranteed the right.
.. Republicans have controlled the offices of secretary of state and attorney general since the 2002 election. Democrats last held the governor’s office in 2010 under Jennifer Granholm.
When Democrats Whitmer, Nessel and Jocelyn Benson take office on Jan. 1, 2019, it will mark the first time in 28 years that Democrats have controlled the offices of governor, attorney and secretary of state at the same time.
Only Trump’s flamboyant awfulness stands in the way of his party’s power grab.
Donald Trump, it turns out, may have been the best thing that could have happened to American democracy.
No, I haven’t lost my mind. Individual-1 is clearly a wannabe dictator who has contempt for the rule of law, not to mention being corrupt and probably in the pocket of foreign powers. But he’s also lazy, undisciplined, self-absorbed and inept. And since the threat to democracy is much broader and deeper than one man, we’re actually fortunate that the forces menacing America have such a ludicrous person as their public face.
.. If you want to understand what’s happening to our country, the book you really need to read is “How Democracies Die,” by Steven Levitsky and Daniel Ziblatt. As the authors — professors of government at Harvard — point out, in recent decades a number of nominally democratic nations have become de facto authoritarian, one-party states. Yet none of them have had classic military coups, with tanks in the street.
.. What we’ve seen instead are coups of a subtler form:
- takeovers or intimidation of the news media,
- rigged elections that disenfranchise opposing voters,
- new rules of the game that give the ruling party overwhelming control even if it loses the popular vote,
- corrupted courts.
.. The classic example is Hungary, where Fidesz, the white nationalist governing party, has effectively
- taken over the bulk of the media;
- destroyed the independence of the judiciary;
- rigged voting to enfranchise supporters and disenfranchise opponents;
- gerrymandered electoral districts in its favor; and
- altered the rules so that a minority in the popular vote translates into a supermajority in the legislature.
Does a lot of this sound familiar? It should. You see, Republicans have been adopting similar tactics — not at the federal level (yet), but in states they control... the states, which Justice Louis Brandeis famously pronounced the laboratories of democracy, “are in danger of becoming laboratories of authoritarianism as those in power rewrite electoral rules, redraw constituencies and even rescind voting rights to ensure that they do not lose.”
.. Thus, voter purges and deliberate restriction of minority access to the polls have become standard practice in much of America. Would Brian Kemp, the governor-elect of Georgia — who oversaw his own election as secretary of state — have won without these tactics? Almost certainly not.
.. you get a lot less reassured if you look at what happened at the state level, where votes often weren’t reflected in terms of control of state legislatures.
Let’s talk, in particular, about what’s happening in Wisconsin.
.. Having lost every statewide office in Wisconsin last month, Republicans are using the lame-duck legislative session to drastically curtail these offices’ power, effectively keeping rule over the state in the hands of the G.O.P.-controlled Legislature.
.. What has gotten less emphasis is the fact that G.O.P. legislative control is also undemocratic. Last month Democratic candidates received 54 percent of the votes in State Assembly elections — but they ended up with only 37 percent of the seats.
.. In other words, Wisconsin is turning into Hungary on the Great Lakes, a state that may hold elections, but where elections don’t matter, because the ruling party retains control no matter what voters do.
.. As far as I can tell, not a single prominent Republican in Washington has condemned
- the power grab in Wisconsin,
- the similar grab in Michigan, or even
- what looks like outright electoral fraud in North Carolina.
.. Elected Republicans don’t just increasingly share the values of white nationalist parties like Fidesz or Poland’s Law and Justice; they also share those parties’ contempt for democracy. The G.O.P. is an authoritarian party in waiting.
.. Which is why we should be grateful for Trump. If he weren’t so flamboyantly awful, Democrats might have won the House popular vote by only 4 or 5 points, not 8.6 points.
.. And in that case, Republicans might have maintained control — and we’d be well along the path to permanent one-party rule.
Instead, we’re heading for a period of divided government, in which the opposition party has both the power to block legislation and, perhaps even more important, the ability to conduct investigations backed by subpoena power into Trump administration malfeasance.
.. But this may be no more than a respite. For whatever may happen to Donald Trump, his party has turned its back on democracy. And that should terrify you.
.. The fact is that the G.O.P., as currently constituted, is willing to do whatever it takes to seize and hold power. And as long as that remains true, and Republicans remain politically competitive, we will be one election away from losing democracy in America.
You may not have noticed this when it happened, but North Carolina elected a Democratic governor in 2016. It was a close race, and Republicans demanded multiple recounts, but eventually they conceded and Roy Cooper was declared the winner.
But that didn’t mean everything was over. After all, there was another month left in which lame duck Republican Pat McRory was still governor and the Republican legislature was still running things. So they did something unique: they passed a series of bills that stripped the governor of some of his powers. Cooper sued after he took office, of course, and the whole mess is currently working its way through the courts. Still, as corrupt as this was, at least it was just North Carolina, which has a recent history of anti-democratic actions barely matched since the end of Reconstruction.
.. In the same way that voter ID bills spread throughout red states after the first one produced light bulbs all over GOP-land, the same thing is happening here. Republicans who lost reelection bids in November are casting their eyes toward North Carolina and thinking that those Tarheels had a pretty good idea. Here’s Michigan:
.. The incoming Democrats had promised a crackdown on dark money contributions, and this is an obvious attempt to stop them. The new commission would be split evenly between Republicans and Democrats, which would halt campaign finance reform in its tracks. And if Michigan can do it, you know that Scott Walker must be looking on from Wisconsin wondering if he can do the same thing.
.. And so the red splotch expands, as Republicans desperately try to thwart democracy and the usual peaceful transfer of power. Will our courts let them get away with this? Stay tuned.