More on this book
Community
Kindle Notes & Highlights
Second, loyal democrats sever all ties—public and private—with allied groups that engage in antidemocratic behavior.
Third, loyal democrats unambiguously condemn political violence and other antidemocratic behavior, even when it is committed by allies or ideologically proximate groups.
Semi-loyal democrats, by contrast, deny or downplay their allies’ violent or antidemocratic acts. They may blame violence on “false flag” operations. They may minimize the importance of antidemocratic behavior, deflect criticism by drawing attention to similar (or worse) behavior by the other side, or otherwise justify or condone the acts.
Finally, when necessary, loyal democrats join forces with rival pro-democratic parties to isolate and defeat antidemocratic extremists.
Semi-loyal democrats, by contrast, refuse to work with ideological rivals even when democracy is on the line.
leaders of that party who denounce or break ties with those extremists often run a substantial political risk. Loyal democrats do it anyway. And they help preserve democracy in the process.
Spain’s first democracy (1931–36) had collapsed amid polarization and civil war. The semi-loyal behavior of both the major center-left and center-right parties contributed to that collapse. In 1934, socialists and communists—fearing fascism—had launched an armed insurrection to prevent conservatives from joining the government. Nevertheless, mainstream center-left politicians tolerated and later forged an electoral coalition with them. And likewise, when military officials—fearing communism—plotted to overthrow the Republican government in 1936, mainstream conservative politicians backed them,
...more
Spanish democracy was finally restored in 1976 after four decades of authoritarianism under Francisco Franco.
Nearly as important, though, was the reaction of Spain’s politicians. The entire spectrum of parties, from the left-wing communists to the right-wing ex-franquistas, denounced the coup.
Politically isolated, the coup leaders were arrested, tried, and eventually sentenced to thirty years in prison. After that, coups became unthinkable in Spain, and democracy took root.
For one, semi-loyalty protects antidemocratic forces. When violent extremists enjoy the tacit support of a mainstream party, they are more likely to be shielded from legal prosecution or expulsion from public office.
recommended as ‘good 6 February men.’ ” In addition to protecting antidemocratic extremists, semi-loyal behavior legitimizes their ideas. In a healthy democracy, antidemocratic extremists are treated as pariahs. They are shunned by the media.
the reformist Popular Front government, which took office in 1936 and was led by Léon Blum, a Jewish socialist, in apocalyptic terms, describing it as Stalinist. The slogan “Better Hitler than Blum” became popular on the right. French conservatives had traditionally defined themselves as nationalists, and many of them loathed Germany. But by 1940, their fear of communism, Soviet infiltration, and social change at home had led them to acquiesce to the Nazis.
When politicians from across the spectrum repudiate violent or antidemocratic behavior, it often isolates extremists, blunting their momentum and deterring others.
antidemocratic behavior has been lowered. The deterrent effect evaporates. Semi-loyalty doesn’t just normalize antidemocratic forces; it encourages—and may even radicalize—them. This is the banality of authoritarianism. Many of the politicians who preside over a democracy’s collapse are just ambitious careerists trying to stay in office or perhaps win a higher one. They do not oppose democracy out of deep-seated principle but are merely indifferent to it. They tolerate or condone antidemocratic extremism because it is the path of least resistance. These politicians often tell themselves they
...more
Mainstream politicians can help kill a democracy by enabling antidemocratic extremism. But they can also undermine it another way: through constitutional hardball—behavior that broadly conforms to the letter of the law but deliberately undermines its spirit.
EXPLOITING GAPS No rule or set of rules covers all contingencies. There are always circumstances that are not explicitly covered by existing laws and procedures. If a behavior is not explicitly prohibited, that behavior—no matter how inappropriate—often becomes permissible.
violate norms with impunity. Politicians routinely exploit gaps in the rules, often in ways that weaken democracy. One example is the U.S. Senate’s 2016 refusal to allow President Barack Obama to appoint a new Supreme Court justice in the wake of Justice Antonin Scalia’s death.
Historically, the Senate used its power of “advice and consent” with forbearance. Most qualified nominees were promptly approved, even when the president’s party did not control the Senate.
In March 2016, however, when President Obama nominated Merrick Garland—a highly qualified and moderate judge—for the court, Senate Republicans refused to hold hearings on the grounds that it was an election year. Denying the president’s ability to fill a Supreme Court vacancy clearly violated the spirit of the Constitution. It allowed Senate Republicans to steal a Supreme Court seat (Donald Trump filled the seat with Neil Gorsuch in 2017). But because the Constitution does not specify when the Senate must take up presidential court nominees, the theft was entirely legal.
2. EXCESSIVE OR UNDUE USE OF THE LAW Some rules are designed to be used sparingly, or only under exceptional circumstances. These are rules that require forbearance, or self-restraint, in the exercise of legal prerogatives. Take presidential pardons.
Or consider impeachment. In presidential democracies, constitutions usually empower legislatures to remove elected presidents, with the understanding that such measures should be undertaken only under exceptional circumstances.
But the power to remove presidents may be used excessively. Consider Peru. According to Article 113 of the Peruvian constitution, the presidency becomes “vacated” if the president dies, resigns, or is deemed by two-thirds of Congress to be in a state of “permanent physical or moral incapacity.” The constitution does not define “moral incapacity.”
In recent years, however, amid escalating conflict between presidents and Congress, Peruvian legislators began to use “moral incapacity” to cover anything they deemed “ethically objectionable.”
An egregious example of undue use of the law to remove an elected leader comes from Thailand, where the prime minister, Samak Sundaravej, an ally of the exiled former prime minister Thaksin Shinawatra, was removed from office on a technicality in 2008.
Undue use of constitutional provisions can kill a democracy. Most democratic constitutions, for example, allow governments to declare a state of emergency, during which basic rights are suspended. In healthy democracies, such provisions are governed by norms of forbearance:
But autocratic-minded leaders are sometimes tempted to abuse the emergency powers afforded to them by the constitution.
But on the evening of June 25, 1975, Gandhi persuaded India’s ceremonial president, Fakhruddin Ali Ahmed, to sign a declaration of emergency, suspending constitutional rights. Within hours, police were knocking on opposition leaders’ doors and arresting them. By dawn, 676 politicians—including Narayan and the leaders of all major opposition parties—were in jail. Dusting off laws such as the Maintenance of Internal Security Act, which had previously been used against smugglers, the government arrested more than 110,000 critics in 1975 and 1976. It also imposed strict media censorship. With the
...more
3. SELECTIVE ENFORCEMENT Governments can punish their rivals not only by skirting the law but also by applying it. Wherever nonenforcement of the law is the norm—where people routinely cheat on their taxes, businesses routinely flout health, safety, or environmental regulations, and well-placed public officials routinely use their influence to do favors for friends and family members—enforcement can be a form of constitutional hardball.
As the Peruvian dictator Óscar Benavides (1933–39) reportedly once said, “For my friends, everything. For my enemies, the law.”
Under President Boris Yeltsin, the government largely turned a blind eye to this lawbreaking—by friend and foe alike. Putin was different. In July 2000, just two months after taking office, he summoned twenty-one of Russia’s leading oligarchs to a meeting at the Kremlin. He told them that if they stayed out of politics, he would not question how they had amassed their fortunes.
Most of the oligarchs got the message. Those who did not, like Boris Berezovsky, whose television station aired critical coverage of the government, were punished. Berezovsky was stripped of his media assets and forced into exile to avoid charges of fraud and embezzlement. When Mikhail Khodorkovsky, owner of the Yukos oil company and Russia’s richest man, continued to criticize Putin and finance opposition parties, he was arrested and charged with tax evasion, fraud, embezzlement, money laundering, and other crimes.
LAWFARE Finally, politicians may design new laws that, while seemingly impartial, are crafted to target opponents.
Most twenty-first-century autocracies are built via constitutional hardball. Democratic backsliding occurs gradually, through a series of reasonable-looking measures: new laws that are ostensibly designed to clean up elections, combat corruption, or create a more efficient judiciary; court rulings that reinterpret existing laws; long-dormant laws that are conveniently rediscovered. Because the measures are couched in legality, it may appear as if little has changed. No blood has been shed. No one has been arrested or sent into exile. Parliament remains open. So criticism of the government’s
...more
The model for building an autocracy via constitutional hardball is Viktor Orbán’s Hungary.
After losing the 2002 election, however, Fidesz moved in a sharply conservative, ethno-nationalist direction.
But as Orbán once said, “In politics everything is possible.” Fidesz’s assault on democracy was made possible by a scandal that weakened the rival Hungarian Socialist Party: a socialist prime minister was caught on tape admitting that he had lied to voters about the state of the economy.
The size of the party’s victory was inflated by Hungary’s “first past the post” election system, which turned 53 percent of the vote into a two-thirds parliamentary majority. That was enough for Fidesz to single-handedly rewrite the constitution. Which it did, almost immediately.
A total of 274 judges were forced out. Although the law was later repealed under pressure from the European Union, many of the retired judges did not return to their posts. By 2013, the judiciary had been captured and transformed into a “puppet of the government.”
Orbán also used “legal” means to capture the media. In most European democracies, public television is an important—and independent—news source (think of the BBC, for example). This was the spirit of the law in Hungary prior to 2010,
Under Orbán, however, public television became the government’s propaganda arm. As part of a “restructuring” process, Fidesz officials sacked more than a thousand public media employees, including dozens of respected professional journalists and editors. The positions were filled by political loyalists, and public media coverage grew nakedly partisan.
Orbán also legally captured the private media. The Fidesz government worked behind the scenes to help Orbán’s friends in the business community buy major media outlets or gain controlling shares in ...
This highlight has been truncated due to consecutive passage length restrictions.
In 2016, the newspaper Népszabadság, Hungary’s largest opposition newspaper, was suddenly closed, not by the government, but by its own corporate owners.
The few remaining independent media outlets were targeted in several ways. A 2010 law prohibited reporting that was “imbalanced,” “insulting,” or against “public morality.”
Finally, the Orbán government used constitutional hardball to tilt the electoral playing field. First, it packed the Electoral Commission, which prior to 2010 was appointed via multiparty consensus. Five of the ten seats were filled by delegates of each of the five largest parties in parliament, while the other five were filled by mutual agreement between the government and the opposition. This ensured that no single party controlled the electoral process. Fidesz abandoned this practice and filled all five nondelegate seats with loyalists, thereby giving itself a controlling majority on the
...more
In another act of lawfare, the government banned the use of campaign advertisements in commercial media. The law ostensibly affected all parties equally, but because both public and private media were heavily biased toward Fidesz, a ban on campaign ads severely limited the opposition’s ability to reach voters.
from South Carolina, later recalled in a 1907 speech on the Senate floor, We felt the very foundations of our civilization crumbling beneath our feet, that we were sure to be engulfed by the black flood of barbarians who were surrounding us and had been put over us by the Army under the Reconstruction acts.
For Congressman Hernando Money of Mississippi, living under “the offensive theory of majority rule” was like “placing our necks beneath the foot of a veneered savage.”
Since Black citizens were either majorities or near majorities in most southern states, white supremacists’ return to power would require, in W.E.B. Du Bois’s words, “brute force.”
In response to this wave of terrorism, President Ulysses S. Grant and the Republican-dominated Congress passed a series of Enforcement Acts that empowered the federal government to oversee local elections and combat political violence. These included an 1870 law authorizing the president to appoint federal election supervisors with the power to press federal charges against anyone who engaged in electoral fraud, intimidation, or race-based voter suppression,
