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The Democratic victories in the House of Representatives on Tuesday night have obvious policy consequences. But it could have lasting implications for the health of America’s democracy too.
Democratic backsliding refers to the subtle, gradual deterioration of democratic institutions and practices, the erosion of elements like free and fair elections, freedom of speech and association, and the rule of law. The Trump administration and its Republican allies have contributed to backsliding, especially by undermining competitive elections and the rule of law.
“The checks imposed in the government are much weaker than they were two years ago,” Aziz Huq, a University of Chicago law professor, told me, citing the failure of inspector generals to hold Cabinet officials to account, President Donald Trump’s partisan attacks on prosecutors, and the disinclination of congressional Republicans to meaningfully challenge the president.
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It’s natural, then, to wonder if the Democratic victory will provide a meaningful check on those trends. The Democratic House would, most obviously, curb Trump’s worst impulses through investigations.
But perhaps the most important impact on American democracy will be the lessons the election imparts on Trump’s fellow Republicans. And while it’s early, Republican leaders aren’t acting like they lost badly. They gained seats and beat expectations in the Senate, and won a shocking upset in the Florida governor’s race. And the high expectations for Democratic pickups in the weeks leading up to the election make a merely good outcome for Democrats feel a bit like a win for Republicans.
Trump himself isn’t acting like he was defeated:
Tremendous success tonight. Thank you to all!
— Donald J. Trump (@realDonaldTrump) November 7, 2018
Senate Majority Leader Mitch McConnell considered the election a huge success, and gives Republicans’ advocacy for Supreme Court Justice Brett Kavanaugh a big share of the credit.
Meanwhile, the victory of Ron DeSantis in Florida and the likely victory of Brian Kemp in Georgia reinforce the idea that white identity politics works and that a party can pursue voter suppression and other anti-democratic moves and be rewarded for it.
And Trump’s ouster of Jeff Sessions as attorney general confirms his desire to avoid being subject to the rule of law, and his willingness to exercise presidential power in order to save his own hide.
The threats to American democracy can’t be resolved in one election. They involve big structural problems like the polarization of elites and politicians, growing hatred of the opposition party and deep emotional affiliation with one’s own party, and white anxiety over the loss of control over American politics and culture.
There were some wins for fair elections in Tuesday night’s results, most notably the victory of a Florida ballot initiative giving the vote for people with felony convictions. But despite such victories and the Democratic takeover of the House, democratic backsliding is still very much in play, if early signs from Republicans are anything to go by.
Can Democratic gains halt backsliding?
The Democratic takeover of the House could certainly help put a halt to, if not reverse, backsliding.
The House Republican majority has declined to engage in meaningful oversight, enabling both high-profile wrongdoing (as in the Russia case) and more routine acts of petty corruption (as committed by Cabinet officials like EPA administrator Scott Pruitt or Interior Secretary Ryan Zinke). House Democrats are unlikely to let that kind of thing slide.
The Democratic takeover also prevents legislative efforts to weaken democratic structures like national voter ID requirements or preempting state automatic voter registration laws.
One possible effect of the Democrats’ win would be to push remaining Republicans in Congress, particularly in the Senate, to become more critical of Trump and support checks on his more anti-democratic tendencies: resisting phony “voter fraud” crackdowns, for instance, pushing back on his attacks on the press, and backing legislation to protect special counsel Robert Mueller and the independence of prosecutors more generally.
“If the Democrats take even the House, but certainly both chambers, the Republicans’ spinelessness may decline and that’s super important,” Robert Mickey, a political scientist at the University of Michigan who’s studied authoritarianism and democratization in the American South, told me before the election.
With a partial win in the House but lost seats in the Senate, that effect may not arise after 2018. Senate Republicans, at least, might see little reason to defect from Trump when they just gained seats following a campaign he helmed.
There are also risks to democratic backsliding that arise due to Democrats’ victory in the House. Mickey noted that Democratic control over a house of Congress runs the risk of encouraging more unilateral action from Trump, a kind of “constitutional hardball” that contributes to a concentration of power in the presidency, itself a democratic risk factor.
Democrats, in turn, might pursue a “tit for tat” strategy as the new majority party in one or both houses, undermining regular order and denying the minority the ability to offer amendments or participate in investigations. Harvard political scientists Steve Levitsky and Daniel Ziblatt have argued that “forbearance” by parties, in which they decline to engage in that kind of hardball even when provoked, helps preserve democratic institutions by foreclosing the use of technically legitimate techniques to undermine the rule of law, fair elections, and the like.
“Analysts of backsliding disagree on the importance of forbearance,” Mickey explained. “My sense is that some of this difference comes down to different assessments of the current dangers — those who think the current dangers are higher are more apt to say ‘screw minority rights, Democrats in power must crush their opponents before they get up off the mat.’” Mickey also highlighted the fact that a Democratic recapture of the House entails defeating relatively moderate Republicans, which in turn pushes the Republican caucus as a whole to the right.
There’s another risk of having Democrats controlling the House: It increases the odds of an interbranch crisis, wherein either conflict between Trump and Congress results in the non-passage of must-pass legislation, or else an attempt by Trump to constitutionally disempower or weaken Congress.
For an example of the former, consider what happened in the summer of 2011, the last time the US transitioned from single-party to divided government. The United States almost defaulted on its debts, which would have plunged the entire world economy into a financial crisis and destroyed hundreds of billions if not trillions in wealth and caused needless human misery.
President Barack Obama and then-House Speaker John Boehner were not able to agree on tax and spending policy, and Boehner declined to authorize more borrowing unless his demands were satisfied. The eventually reached an agreement. But if that brinkmanship had ended differently, the costs would’ve been tremendous. And with a mercurial and unreliable negotiator like Trump at the table, and a Democratic Party facing pressure to use all the tools at its disposal to fight him, the odds of a similar fight going badly now are high.
Less catastrophic would be a government shutdown like the brief ones that occurred earlier this year. Shutdowns needlessly hurt government employees, but don’t cause broader economic calamity and are generally treated as an acceptable cost of negotiating. But they might increase in frequency, especially because they’re correctly perceived as less dangerous than a debt-ceiling breach.
More seriously than either would be the kind of branch confrontation that’s common in Latin America. Gretchen Helmke, a political scientist at the University of Rochester, in her book Institutions on Edge, covers examples like Hugo Chavez in Venezuela and Rafael Correa in Ecuador creating “constituent assemblies” to challenge the legitimacy of Congress, and the efforts of Guatemala’s Jorge Serrano Elías (who failed) and Peru’s Alberto Fujimori (who succeeded) to actually close their congresses down.
We’re a long way from Trump doing the latter, or even the more modest “constituent assembly” step, but divided government makes it likelier he’ll try.
Lessons from abroad
There is some international precedent for electoral defeats helping end a process of democratic backsliding.
South Africa, in recent years, provides one possible model. Jacob Zuma, the third president since the country became a democracy in 1994, exploited his office for personal financial gain, and faced accusations of using state prosecutors to wage factional battles within his party, the African National Congress.
But in early 2018, he was forced out of office. “In South Africa, the ANC in 2016 lost a slate of very important municipal elections which they hadn’t been expecting to lose, because of judicial revelations of [President] Jacob Zuma’s corruption,” Huq from the University of Chicago said. “The loss in those elections persuaded leaders to abandon Zuma, who had been a catalyst and a driver of backsliding in the South African context.”
This was a gradual process (Zuma left office a year and a half after the elections) but was accelerated by the perception of a real electoral threat from the opposition Democratic Alliance.
There was also, until this past week, the case of Sri Lanka. President Mahinda Rajapaksa, who served from 2005 to 2015, oversaw the end the Sri Lankan civil war (while committing serious war crimes against the Tamil minority) and ran a regime Huq and his UChicago colleague Tom Ginsburg describe as “marked by nepotism, corruption, and a degradation of rule-of-law institutions such as courts, prosecutors, and the police”; it also featured crackdowns on journalists. The backsliding was halted in 2015 when he lost reelection for a third term.
That said, on October 26, risks of backsliding appeared to return as Rajapaksa’s successor sacked his prime minister (arguably unconstitutionally) and replaced him with … Rajapaksa, who is now serving under the president who beat him in 2015. (My colleague Jen Kirby explains more here.)
If Republicans interpret Tuesday night primarily as a victory, the idea that white nationalist and anti-democratic demagoguery pays will likely persist for Republicans — and may guide their politics and rhetoric these next couple years.
Gisela Sin, a University of Illinois Champaign political science professor, noted that popular enthusiasm for dictatorial measures, and distrust of democracy, helped fuel Peruvian President Alberto Fujimori’s decision to dissolve Congress in 1993, and Hugo Chavez’s consolidation of power in Venezuela. “Authoritarianism has to come from society, not just the government,” she said.
Indeed, the day after Fujimori “suspended the constitution, dissolved the congress, sent tanks into the streets and rounded up political opponents,” according to the Washington Post, his approval rating leaped to 79 percent.
We’re not nearly there yet. But a necessary precondition for Fujimori’s actions was a sense that the public would back him up. Democrats’ qualified victory on Tuesday — giving Democrats control of the House but expanding the Republican hold on the Senate — might instill that sense in Trump.
Brian Kemp, the secretary of state and chief elections officer in Georgia, and likely governor-elect, announced an investigation into the state Democratic Party mere days before the election in what certainly looked like an effort to swing the vote. His victory, and that of colleagues like Ron DeSantis in Florida, could send a dangerous message that they can make such anti-democratic maneuvers — and get away with it.
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