Democratic Norms Are Under Attack, and Not Just by Trump

Like the president, state politicians are playing by new rules and openly trying to undermine critics who threaten their power -- whether they're lawmakers, reporters or voters.
by | May 18, 2017
In February, a plane flew a protest banner above the South Dakota Capitol as lawmakers inside approved legislation to sweep away new ethics regulations that voters had approved just three months earlier. (AP)

Shortly after last year’s election, Andrew Reynolds made a startling assertion. The University of North Carolina political scientist, who had helped devise a formula for measuring the vitality of democracies, wrote a newspaper column claiming his state’s restrictions on voting and its unwillingness to follow established rules “means our state government can no longer be classified as a full democracy.”

Reynolds’ column was widely shared and reprinted by several national outlets, mostly but not exclusively liberal. He received some pushback. But the North Carolina legislature seems to be on a mission to prove him right.

Immediately after last November’s election, in which Democrat Roy Cooper unseated GOP Gov. Pat McCrory, the Republican-controlled legislature used a lame-duck session to strip the governor’s office of a number of key powers, including authority over some appointments. That effort has been held up in court, but legislators keep coming up with new variations. After the election -- which also cost conservatives their majority on the state Supreme Court -- it was widely reported that the GOP-dominated legislature would pack the court, adding two seats to create a new majority before Cooper could take office. But while they didn’t pack the Supreme Court, North Carolina legislators did tamper this year with the main appellate court, reducing its membership by three in order to prevent Cooper from appointing replacements for retiring Republican judges.

Republicans, who hold supermajorities in both legislative chambers in North Carolina, have done little to hide their partisan motivations in such maneuvers. They will tell you that Cooper, as a legislator, also voted for structural changes that helped his party. But nothing like what’s going on now. Today’s GOP legislators have unapologetically pushed their authority to the max. They’ve moved to change rules governing local elections, control of election boards and the order in which candidates appear on ballots, all in ways designed to disadvantage Democrats. “It’s straight up political,” Republican state Sen. Jeff Tarte said back in March, when he introduced legislation to alter local judicial elections in ways that would help his own party.

 

Before North Carolina’s Roy Cooper was sworn in as governor in January, legislators had stripped away several powers from his office. (AP)

 

North Carolina may be ground zero in terms of legislative assaults on other branches and institutional norms, but it’s not unique. All around the country, longstanding norms of political fair play are being tossed aside. Lawmakers are moving openly to undermine critics or opponents who threaten their power. They’ve filed dozens of bills to weaken state courts and to shield themselves from other forms of accountability, undermining ethics agencies and cordoning off access to public records. Legislatures and state agencies keep putting up roadblocks against reporters, up to and including expulsion from legislative chambers. On May 9 -- the same day that President Trump fired FBI Director James Comey -- a reporter was arrested at the West Virginia Capitol for causing a disturbance by yelling questions about health care to Tom Price, the federal Health and Human Services director. The reporter was charged with “willful disruption of state government processes.”

Legislators also are striking out at ordinary citizens who seek to challenge their power, passing new laws to criminalize protest, enacting fresh restrictions on access to the ballot for initiatives and going so far as to overturn laws that voters have already approved. “Lawmakers in many states no longer feel constrained in the same ways that their predecessors did,” says Peverill Squire, an expert on legislatures at the University of Missouri. “They are more willing to challenge the other branches of state government, as well as the federal and local governments, and even their own constituents.”

That’s what makes the situation in the states different from the one in Washington. There is clearly an erosion of norms in the federal government, with Trump showing disdain for courts and legal and congressional investigators. But in state politics, there’s no single person acting like an authoritarian. Instead, institutions that themselves embody the most deeply entrenched democratic traditions are seeing the erosion of those traditions. States are learning what the tyranny of the majority is all about.

Many legislators act as if they view the other branches as separate but not equal. They do not shy from claiming they know best and deserve deference because they are the most representative part of government. “The legislative branch of government is closer to the people of our state than I believe the executive branch is,” state Rep. Justin Burr, who sponsored some of the legislation to strip Cooper of his powers, told The Hill in March. “We come from 170 districts all over North Carolina.”

Legislative control is split between the parties in only a handful of states. In many more, one party enjoys supermajority control, and gubernatorial vetoes can be little more than an exercise in extra paperwork. Courts are standing up to legislators, but find themselves under siege as a result. And voters often have little choice at the polls. Put aside the question of how effectively legislators are able to select their own constituents through gerrymandering, or whether voter identification laws are meant to suppress Democratic turnout, as Democrats claim. The reality is that most legislators don’t have to worry about voters much at all.

Last November, 42 percent of all state legislative seats went uncontested by one party or the other. (In North Carolina, the figure was 45 percent.) Those numbers are in line with other recent election cycles. And, despite the fear legislators seem to have about potential opposition if they break with party orthodoxy, few ever actually see a primary opponent. Just under 80 percent of the incumbents running again last year had no primary contest. All told, a third of legislators were re-elected through the simple act of showing up, facing no opposition in primaries or the general election. Among those who drew an opponent, the vast majority had no real contest.

All of this has emboldened legislators. What’s more, with parties separated into warring camps, the desire to entrench power has grown. Power grabs can be justified as preventing the other side from pursuing its evil ways. “When you view the other side as the enemy, you increasingly feel that the ends justify any means,” says Lee Drutman, a senior fellow in political reform at New America, a think tank in Washington.

With Republicans controlling two-thirds of the nation’s legislative chambers, they are doing most of the power grabbing these days. But Democrats are not guiltless. The new three-seat Democratic majority in the Nevada Senate this year changed chamber rules to prevent GOP Lt. Gov. Mark Hutchison from casting tie-breaking votes. In February, California’s Democratic Senate majority voted to remove Republican Janet Nguyen from the floor for giving a speech defending the Vietnam War. (She eventually got an apology from Senate President Pro Tempore Kevin de León.)

Even in the limited number of districts that are competitive, there’s a problem holding politicians responsible for such moves. Many voters now are as set in their partisan loyalties as officeholders. If Republicans won’t consider voting for any Democrat, that leaves them with little leverage over GOP legislators. Their votes can be taken for granted, regardless of what actions a GOP-dominated legislature might take. Vice versa for Democrats, of course -- even more so under Trump. Voters in either party are apt to cheer any perceived victories for their side rather than complaining that the system of checks and balances they vaguely remember from school is being violated. “Not only political elites but the general public thinks of themselves as part of a team,” says Paul Nolette, a Marquette University political scientist. “They’re rooting for their team, even if there’s some cheating going on.”

The rise of partisan suspicion creates an arms race mentality, or what Drutman describes as a “doom loop.” The urge is to press every advantage before the other side can take control again. Actions that are corrosive to institutions invite reciprocal actions by the other party once the majority changes hands (and triggers a disingenuous dance of politicians suddenly reversing themselves on a given issue or process, depending on whether they’re newly in the minority or majority). “A Republican legislator would say the majority rules, we’re following procedures, we’re doing what Democrats used to do when they were in the majority,” says Ferrel Guillory, who teaches public policy at the University of North Carolina. “On the ground, it has the feel of a majority that feels that now is its time, its time is limited and they’re going to do everything they can do while they’ve got power to do it.”

At the same time, the line of defense protecting institutional norms is weakened when respect for institutions themselves has been badly eroded. Polling numbers exploring trust in government keeps plumbing new depths. The media, ostensibly tasked with being the watchdog, faces similarly bleak numbers when it comes to trust.

For all these reasons, the idea of defending procedural fairness doesn’t make for much of a rallying cry, even in a year when other kinds of protests are very much in vogue. People will march for women’s rights and for science and against climate change and certainly against Trump, but there are no marches on behalf of the democratic process itself. Fights over rules and procedures matter intrinsically to officeholders, but are yawn-inducing for the public. “Nobody goes to the barricades for norm-breaking,” Nolette says. “People care about abortion and health care, but they don’t care that nobody has used this particular mechanism before to strip a governor or attorney general of his power."

 

California Senate Democrats removed Republican Janet Nguyen from the floor for giving a speech defending the Vietnam War. (AP)

 

It’s hard to quantify whether norm-breaking has gotten worse. There aren’t any widely accepted definitions that would document how many traditional norms have been broken this year, and how that would compare with a decade ago, or two decades ago. Clearly some of the ways that legislators seek to entrench their power are eternal. Redistricting has been all about preserving and expanding majority power since the earliest days of the republic. Undercutting or underfunding ethics enforcement is also a time-honored tradition.

In the 1960s and early 1970s, a majority of states passed laws to crack down on civil rights and anti-war protesters. As long ago as 1990, a book called Politics by Other Means, by Benjamin Ginsberg and Martin Shefter, argued that elections were becoming irrelevant, with political institutions mired in perennial trench warfare and important decisions being made by unelected actors, including special prosecutors. “What we should ask ourselves,” one reviewer of the book wrote, “is whether America is about to end its experiment with electoral democracy.”

So the assault on fair play isn’t a new idea. Nevertheless, it seems clear to most observers that something new is going on. Maybe it’s a difference in kind, or maybe there really is more openness about bending the rules to suit partisan purposes. Legislators have often been known, for example, to challenge ballot measures in court, or redirect or withhold funds that voters have approved. That still happens. But South Dakota took this tactic one step further this year. The state legislature kicked off its session by overturning a law (an ethics package, no less) that voters had just enacted at the ballot box in November. “Now legislators are picking and choosing what part of the voters’ will they’re going to accept,” says Justine Sarver, executive director of the Ballot Initiative Strategy Center, “and that’s just not how democracy works.”

In a similar way, it’s become a familiar practice for legislatures to restrict the authority of cities and counties to set their own policy courses on matters such as property taxes, minimum-wage levels, immigrant protections and gay rights. What’s less well known is that states stand ready to interfere not just with policy but process at the local level. In October, California’s Democratic-dominated legislature changed the redistricting process for seats on the Los Angeles County Board of Supervisors, in a clear maneuver to elect more Democrats. This year, legislation has been introduced to do the same thing in San Diego County.

In April, Indiana passed a law creating a merit selection process for judges in Marion County, which includes Indianapolis. That sounds like a responsible thing to do, but in this case it had the effect of disenfranchising the county’s large populations of Democrats and African-Americans. The judges will now be chosen by Republican Gov. Eric Holcomb, rather than by voters in the county. While North Carolina legislators were pursuing their “straight up political” strategy to make local judicial races partisan, Tennessee’s Republican-controlled legislature passed a bill in March making local judicial races nonpartisan -- but only in the state’s Democratic strongholds.

 

The Tennessee state Capitol (David Kidd)

 

Legislative respect for the independence or neutrality of courts sometimes appears to be withering away altogether. North Carolina’s legislature may have backed off from packing the state Supreme Court, but legislatures in Arizona and Georgia approved exactly that change last year. This year, legislators in 15 states introduced more than 40 bills that sought to constrain the judiciary, according to a new study from New York University’s Brennan Center for Justice. These bills included a wide range of approaches, from changing the ways judges are selected to limiting their terms. The bills reflected a desire on the part of legislators to increase their influence over the courts, entrenching partisan power or punishing courts that had issued rulings they didn’t like. “These sorts of attacks matter, even if they don’t get passed into law,” says Michael Nelson, a political scientist at Penn State University. “They can affect the sort of cases judges choose to hear, or it might make them more deferential overall.”

The voting public pays little attention to state courts, making them ripe fodder for tinkering and interference. Julio Gonzalez, a Republican member of the Florida House, introduced a bill to allow the legislature to override judicial rulings. He explained it by claiming that under the existing rules, there is nothing the legislature can do to push back against the power of the court. “That’s not a check and a balance,” Gonzalez says. “That’s not a dialogue. It’s a monologue from the judiciary to everybody else.”

In fact, it is a check and balance. Judges are supposed to be the umpires. In turn, legislators can impeach judges they think have gotten out of control. They can also pass new laws in response to judicial opinions. But one of the reasons courts exist is to have an institution separate from the political branches to determine whether new laws violate the state or federal constitutions. The point of separating powers is to ensure that the people who pass the laws are not deciding for themselves whether their products pass constitutional muster. “If legislatures can just overrule courts anytime they want, why even have a court system?” asks Billy Corriher, who focuses on state courts at the Center for American Progress, a liberal think tank in Washington. “They’re trying to minimize the powers of other branches of government, so the legislature reigns supreme.”

Despite all their blustering and their transparent power grabs this year, legislators can’t get away with doing anything they want. If lawmakers venture too far, a gubernatorial veto can often still be sustained, even in a state where one party has what looks like a “veto-proof” majority. Courts have not lost the power to make legislators behave. And public opinion still matters. Four months after Oklahoma voters approved a pair of ballot measures on criminal justice issues, the state House voted to overturn them, but public outrage convinced the legislature to back away from final passage. “When voters notice these things and really speak out, they still have the ability to stop some of these actions,” says Gene Perry, policy director of the nonpartisan Oklahoma Policy Institute.

But legislators are tired of hearing from the public. Or so it seems, when bills have been introduced in many states to increase criminal penalties for protesting and to give law enforcement agencies more authority to break up demonstrations. Four anti-protest bills were signed into law in February in North Dakota alone. Just last month, Oklahoma enacted legislation to deter protests around “critical infrastructure,” which primarily means oil and gas pipelines. Protesters are now subject to fines of up to $100,000 and prison terms of up to 10 years. Even the people who offer them rides or housing now face legal liability. Earlier, the legislature made it a crime to compensate protesters.

The public may be willing to protest pipelines, but whether it will take to the streets to preserve the right to take to the streets is another question. This is a moment when institutions and norms are in decline at all levels of the political system. The willingness of federal politicians to abandon existing norms -- with the president openly questioning the authority of courts and the U.S. Senate holding open a Supreme Court seat for a year, to cite only two examples -- may have an unfortunate trickle-down effect, suggests Alicia Bannon, a senior counsel at the Brennan Center. “We’re just seeing generally that these unwritten rules that have lasted for many years,” Bannon says, “are breaking down and are under threat.”

*This appears in the June issue of the print magazine, which will be available online at the end of the month.

*CORRECTION: A previous version of this mistakenly credited the photo of the Tennessee state Capitol to AP.