Constitutional Hardball Is Back. Look Out.

Here we go again: another episode of 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.”

And yes, it’s also relevant that President Donald Trump and many other Republican politicians have taken to making claims about election fraud despite having no evidence whatsoever.

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. A smooth-running republic draws strength from how political actors observe democratic norms. That’s one reason that even autocratically inclined presidents (and all of them have been tempted at one time or another) are constrained in the U.S. system: Norms are so deeply embedded in so many aspects of governance that it’s hard for any single politician to overturn them. (Similarly, where U.S. democracy has traditionally fallen short, norms of antidemocratic behavior can create obstacles so formidable that passing laws, and even constitutional amendments, can fail to destroy them. New democratic norms must be built up over time.)

Perhaps Republicans will take a step back this time. Perhaps if they go forward there will be such a strong backlash that politicians in other states will think twice in the future. But I’m afraid that may be wishful thinking in a republic that’s seriously threatened by this type of thing.

1. Stella M. Rouse at the Monkey Cage on immigration and young voters.

2. Also at the Monkey Cage, Elizabeth N. Saunders on the nothing-doing G-20 summit.

3. Seth Masket on how President George H.W. Bush won in 1988 and lost in 1992.

4. Susan Hennessey and Quinta Jurecic on Trump and witness tampering. Yes – this latest violation is extremely serious, whether or not it technically constitutes witness tampering. I’m no lawyer, so I leave the legal analysis to them. But as far as potential impeachment goes: Any action that violates the president’s oath of office could certainly be a factor in Congress’s decision to move forward, even if it might not lead to an indictment or conviction in the judicial system. That was certainly the case with Richard Nixon.

5. Amanda Terkel on how hard it is for the non-rich to run for Congress.

6. Reid J. Epstein and Janet Hook report from Iowa on Democratic Party officials who want younger presidential candidates. Interesting. Of course, people have been known to make exceptions to their overall preferences for a candidate they really like, so we’ll see how far this goes. And it’s just one set of interviews. But still, very interesting.

7. Adam Serwer on Senator Tim Scott and the Republican tolerance for intolerance.

8. And Gordon Wood on the North, the South and the Constitution before the Civil War.

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