Populism, pandemic—and internal failings—threaten to unravel a form of government recently seen as ascendant around the globe.
BY MICHAEL OREY
Sudler Family Professor of Constitutional Law Richard Pildes opened his 2004 article, “The Constitutionalization of Democratic Politics,” by proclaiming that this was “The Age of Democracy.” The number of new democracies had doubled in the past 20 years, and as Pildes noted, democracy had come to be seen as the appropriate form of government in nearly all contexts, including for countries emerging from civil war or those riven by deep religious, tribal, ethnic, cultural, or other conflicts.
Fast-forward a mere decade. Bonnie and Richard Reiss Professor of Constitutional Law Samuel Issacharoff found a much more mixed picture when he evaluated the state of democracy in a group of countries that had emerged from autocratic rule or conflict in the 1990s and early 2000s. His book Fragile Democracies: Contested Power in the Era of Constitutional Courts examined what led democracy to flourish in some of these countries and to wither or perish in others, and it asked the question: how could you have confidence that one fairly contested election would be followed by another?
Such questions once seemed less relevant in discussions of government in the United States and other long established democracies. That’s not true anymore.
Newly emerging risks to democracy in the United States and around the globe have been the focus of recent study by Issacharoff and Pildes, who in the late 1990s pioneered the establishment of the Law of Democracy—the laws, institutions, and norms underlying the political process—as a discrete discipline in law schools. Issacharoff and Pildes are part of an extensive roster of NYU Law faculty members focused on core aspects of democratic governance, and several have become prominent public commentators in various media (see sidebar “Public Intellectuals”). In addition, the Brennan Center for Justice, headed by Michael Waldman ’87, takes a leading role in advocacy and research on issues such as elections and voting rights (see sidebar “On the Front Lines”).
These experts now find themselves examining why democracy is broadly under assault around the world. “It is odd, and highly dispiriting, to have to engage this question so soon after democracy seemed ascendant as never before,” Issacharoff wrote in “Democracy’s Deficits,” published in the University of Chicago Law Review in 2018.
In early 2019, in the mission statement on its website, the Brennan Center stated that “at this critical moment,” it was “dedicated to protecting the rule of law and the values of constitutional democracy.” By the end of the year, that language had been updated to read, “Today, we are in a great fight for the future of constitutional democracy in the United States.”
Compared to even a decade ago in the US, Pildes says in an interview, “there’s a much greater sense of politics as existential, that everything is at stake, that losing an election is catastrophic and irreversible, rather than part of the routine alternation of power that happens in a pluralistic democratic society.” But he points out that democracy has been subverted in the US before: his work on disenfranchisement, “Democracy, Anti-Democracy, and the Canon,” described how the American South was transformed from a competitive democracy after the Civil War, with high levels of political participation by Black men, into a one-party, authoritarian state that endured from 1890 until the Voting Rights Act in 1965 began dismantling that system and expanding access to American democracy.
In both commentary and scholarship, NYU Law experts often take a global perspective, which Pildes notes makes NYU distinctive. “We can get very fixated on some of the specific things inside the US system and think that they are major causal forces in what’s going on,” he notes, “but if you step back and you see that fairly similar things are going on in most of the Western democracies, it points you to larger structural forces at work.”
Those forces have produced a “populist uprising” around the globe, Issacharoff writes in “Democracy’s Deficits.” A defining feature, he says, is the rejection of one of the most essential elements of democratic governance: repeat play—“the idea that there is a tomorrow and that the losers of today may unseat the victors in a new round of electoral challenge.… Populist impulses shorten the time frame and turn everything into a binary choice, a political life at the knife’s edge.” In “The Inherent Authoritarianism in Democratic Regimes,” Pildes has described the temptation of those in power to manipulate the democratic process to entrench themselves and their allies in power.
This was before a novel coronavirus appeared on the scene, raising a host of new concerns. “We all know that this pandemic is a health crisis,” Waldman said during an online discussion with his Brennan Center colleagues in May. “We know, of course, that it’s an economic crisis. But if we don’t act—and urgently act— in our country, it will be a democracy crisis as well.”
A ‘clock running in reverse’
A durable democracy, Issacharoff notes in Fragile Democracies, rests on a complex interplay among popular sovereignty, political parties, stable institutions of state, and vibrant organs of civil society—not to mention a commitment to repeat play. Few of these elements are likely to exist when a new democratic order attempts to put down roots, presenting a risk that the executive branch, typically dominant from the start, may move to stifle competition. In some countries (Turkey, for example), the result has been a slide back to autocracy, but in other nations there has been a devolution into a kind of in-between status.
Regimes in this latter group—such as Hungary and Poland— don’t so much snuff out democracy as commandeer it, Issacharoff argues. They generally don’t resort to violence or extralegal means to achieve dominance; instead, these regimes “use the instrumentalities of governance to wear down the opposition,” he says in an interview. They also continue to rely on elections, and claim an electoral mandate as the foundation of their political legitimacy.
More recently, a new group of countries has drawn Issacharoff’s attention. “What I’ve been writing in the last five years,” Issacharoff says, “is about how that pattern, which I observed in the new democracies, is presenting itself in the mature democracies with the clock running in reverse.”
The force driving this convergence is populism, Issacharoff says. While it manifests differently depending on the national setting, populism’s most salient feature across settings is antiinstitutionalism. In each country, insurgent political movements follow a common playbook: appealing to feelings of anger, loss, and betrayal, they cast core components of democratic governance as obstacles to their electoral mandates that are to be discredited, disregarded, or otherwise overcome.
He points to Great Britain, with Brexit; India, where Hindu nationalists ascended to power; Italy, where the nationalist Lega party briefly did so; and other countries in Europe where rightwing (anti-immigrant and anti-European Union) parties have gained significant footholds.
And what about the US? Donald Trump’s election victory in 2016, Issacharoff writes in “Democracy’s Deficits,” marked one of the most “dramatic moments in a populist uprising against the post-war political consensus of liberal rule.” In a chapter he authored for the 2018 book Constitutional Democracy in Crisis?, Issacharoff cataloged numerous ways in which Trump and his allies have acted extensively from the populist playbook. One he singled out in particular was “the ongoing fixation of the current administration with ‘crooked Hillary’”—the exhortations at Trump’s rallies to “lock her up,” and “the persistent berating of the Department of Justice” for not turning on his political opponents. “Quite simply,” Issacharoff wrote, “there has never been anything like this in American history.”
‘The decline of American government’
Pildes began to anticipate the emerging dysfunction of American government in a 2006 Harvard Law Review article, “Separation of Parties, Not Powers.” Pildes and his co-author, David Boies Professor of Law Daryl Levinson, argued that the original vision of the American system of separation of powers began to fail once modern, national political parties arose. While Madison believed each branch of government would serve as a check on the others, reality has proved that, when the White House and Congress are controlled by the same political party, Congress in practice functions as an ally of the president, not a check. Pildes and Levinson concluded that “the separation of powers as the Framers understood it, and as contemporary constitutional law continues to understand it, ha[s] ceased to exist.”
Such a breakdown is exacerbated by the “hyperpolarization” in American politics that Pildes described in his Jorde Lectures at Berkeley and Princeton in 2009 and 2010. Though many Americans attribute today’s divisive politics to individual political figures, and nostalgically long for the moderate, centrist leaders of earlier decades, Pildes argued that the polarization was set into motion with the 1965 enactment of the Voting Rights Act, which gradually transformed the political parties from heterogeneous groups into ideologically “purified,” completely polarized entities. Pildes concluded that we effectively have two systems of government: during divided government, political paralysis prevails, while during unified government, Congress does not hold presidents accountable. He predicted “our radically polarized politics, and the absence of a center in American democracy today, reflecting long-term structural and historical changes… [are] likely to endure for some time to come.”
In recent years, Pildes has described “political fragmentation” as an additional defining feature currently plaguing democracy in the US and elsewhere. In Europe, the two dominant coalitions of center left and center right that had governed since World War II have collapsed, as numerous upstart parties have arisen across the spectrum. As Pildes notes in his 2014 Yale Law Journal article, “Romanticizing Democracy, Political Fragmentation, and the Decline of American Government,” political parties in the United States and elsewhere have lost power to outside groups, while political leaders have also lost power to individual, free-agent party members. With the communications revolution, individual members of Congress can wield the kind of power that in the past belonged only to party leaders. Effective government requires forging concerted political power and coalitions, but political fragmentation has made that increasingly difficult.
Policy changes to American elections have also fueled this fragmentation. One of the most radical but underappreciated of these changes, Pildes argues, was replacing the party-based political conventions with the populist, primary-based system used since the 1970s. That, Pildes asserts, has made America an outlier in how democracies choose their leaders and has led to the election of presidents with much less prior experience in government—or none at all.
But there are ways in which increasing direct involvement by individuals in the political process can help fortify democracy. That’s what Norman Dorsen Professor of Civil Liberties Burt Neuborne argues in his 2019 book, When at Times the Mob Is Swayed: A Citizen’s Guide to Defending Our Republic, when he calls for expanded voter participation. The drafters of the Constitution, he writes, counted on “multiple competing interest groups with relatively equal electoral power checking each other,” but low voter turnout in many US elections means a relatively small subset of the population may be able “to capture the government and use it to impose its will on everyone else.”
‘The light that failed’
Democracy also has a reputation problem. “At issue across the nuances of national settings is a deep challenge to the core claim of democracy to be the superior form of political organization of civilized peoples,” Issacharoff writes in “Democracy’s Deficits.” For citizens, he notes, the ultimate measure of a system’s superiority is its ability to produce results, and democracies have made a poor showing on that front in recent decades. As a tangible example, he notes that major infrastructure projects that seem to be completed almost overnight in China can drag on for decades in the West.
Walter E. Meyer Professor of Law Stephen Holmes has chronicled this loss of luster. In the mid-1990s, he was director of a Soros Foundation program based in Budapest that promoted legal reform and democratization in the former communist countries of Eastern Europe. Last year, he and co-author Ivan Krastev published The Light That Failed: Why the West Is Losing the Fight for Democracy. The book has earned multiple plaudits, including being named a best book of 2019 by the Financial Times, the Economist, and the London Evening Standard. “We were trying to explain why the countries that in 1989 were viewed as the laboratories of liberal democracy and harbingers of the future had turned out 25 or 30 years later [to be] hotbeds of antiliberalism, nativism, xenophobia, and authoritarianism,” Holmes said in an interview on the Lawfare podcast.
Like many others (including Issacharoff and Pildes), Holmes and Krastev point to the 2008 financial collapse and Europe’s refugee crisis as factors that stoked fear and resentment and demonstrated the vulnerabilities of liberal democracy. The approach taken by the European Union (EU) to integrating former Soviet-bloc countries didn’t help. A “central irony of post-communist democracy promotion,” Holmes and Krastev write, was that the countries “ostensibly being democratized were compelled, in order to meet the conditions for EU membership, to enact policies formulated by unelected bureaucrats from Brussels and international lending organizations.”
But the cardinal sin of established democracies, in their analysis, turned out to be arrogance: an expectation that newly liberated regimes would adopt Western political and economic models wholesale, in what Holmes and Krastev dub “the Imitation Imperative.” Examining the rhetoric of Eastern European populists, Holmes says, he and Krastev found that one of their most politically resonant slogans was: “We are tired of being copies; we’re tired of being second-rate replicas of Western societies; we want to be authentically ourselves.”
Of course, democracy is facing headwinds in Western Europe, too, and again the EU may bear some responsibility. In a 2018 article in the University of Chicago Law Review, Florence Ellinwood Allen Professor of Law Gráinne de Búrca concludes that supranational governance by the EU—especially the dominance of its executive branches—has been eroding democracy’s reputation in countries across the continent. Serious and committed reform is required, de Búrca says, “if the spread of not just Euroscepticism but also of illiberal and authoritarian political forces in EU member states is to be tackled.”
Along came COVID-19
Nothing is more foundational to democracy than elections, so anything that might affect their timing or perceived legitimacy sets off alarms. This spring, citing coronavirus, more than a dozen states rescheduled or extended voting time in their primaries. Pildes belongs to a bipartisan task force that in April issued a major, widely endorsed report on preparing for the general election in the fall, which suggests (among other things) that voters should be prepared for election week rather than election night, given expected delays in counting a flood of absentee ballots.
Similarly, in March, Wendy Weiser, director of the Brennan Center’s Democracy Program, and Max Feldman ’13, counsel in the center’s Voting Rights and Elections Program, quickly wrote a memo for civil rights advocates, journalists, and policy makers on measures for voting under pandemic conditions. The next day, Weiser says, more than 200 organizations signed a letter calling on Congress to advance the proposals, which included expanded early voting, mail-in ballots, and polling place modifications. Roughly 1,000 political scientists did the same the next day. But Weiser acknowledges that changes to election procedures can also raise concerns. At an NYU Law Forum, sponsored by Latham & Watkins and conducted online in April, Weiser—joined by Issacharoff, Pildes, and Professor of Practice and Distinguished Scholar in Residence Bob Bauer—noted that, even as voting by mail has expanded, the rules for casting and counting mail ballots haven’t drawn much scrutiny, and could become the basis for contesting, and possibly discrediting, the outcome of an election.
Pildes addressed this concern in summer 2020 with articles on how to prepare for a massive surge in absentee ballots, how to avoid an election meltdown, the continuing importance of inperson voting, and the role of federal courts in adapting voting laws to the circumstances of a pandemic. But he notes that courts are increasingly viewed in partisan terms. “We have much less of a basis for confidence that…people on both sides are going to accept judicial decisions as legitimate resolutions of any dispute,” he says.
Government measures to combat coronavirus have also sparked concerns in the US and abroad about limits on executive authority. Issacharoff noted a “tremendous expansion of surveillance state techniques” to track the virus in countries such as China and Israel, and the “dramatic use of state regulatory authority” nearly everywhere, in the form of stay-at-home orders and suspension of economic activity. In Hungary, he noted at the NYU Law Forum, Prime Minister Viktor Orbán was using emergency powers “as a way of shutting down all opposition domestically.”
In 2018, in an effort overseen by Elizabeth Goitein, co-director of its Liberty and National Security Program, the Brennan Center completed an intensive two-year research project on the legal framework for national emergencies in the US. This spring, the center began posting updates to that work, including a flowchart prepared by Goitein to help assess whether government actions taken in response to the coronavirus are “reasonable and necessary.” To address the outbreak, “governments across the country and the globe might need to implement measures that would be inappropriate during ordinary times,” Goitein wrote. “But that does not mean we must blindly accept any encroachment on our rights and freedoms.”
In a forthcoming article in the International Journal of Constitutional Law, Issacharoff asks whether law could serve as an effective check on the democratic erosion associated with populism. “Law,” he wrote, “can go only so far…in the absence of institutional frameworks that moderate the popular will into sustainable forms of governance.” Those frameworks rest to a significant degree on norms and practices that, while “vital to a flourishing constitutional democracy [are] not susceptible to direct judicial enforcement,” Issacharoff and Dean Trevor Morrison, Eric M. and Laurie B. Roth Professor of Law, point out in “Constitution by Convention,” due to be published in late 2020 in the California Law Review.
These norms have come under tremendous pressure recently. But looking forward, they say, “our concern is with what comes after. How can we best preserve the institutional arrangements and practices that have long sustained government up until now, and to which we will need to recur whenever the political dysfunction of the moment is overcome?”
Sidebar: Public Intellectuals
Political developments in recent years have raised complex and novel questions about democratic governance. NYU Law faculty members explore these developments through a variety of media platforms, with target audiences that include policy makers, practitioners, and the public at large.
Ryan Goodman, Just Security
Anne and Joel Ehrenkranz Professor of Law Ryan Goodman co-founded the blog Just Security in 2013. Concerns about Russian interference in the 2016 presidential election fell squarely within the blog’s national security focus, and coverage soon expanded to topics such as campaign finance law, the Emoluments Clause, the president’s pardon power, and impeachment. “We see ourselves as a kind of watchdog and counterpoint to government exercise of authority,” Goodman says.
Melissa Murray, Strict Scrutiny
In July 2019, Frederick I. and Grace Stokes Professor of Law Melissa Murray and her three co-hosts aired the first episode of Strict Scrutiny, their podcast devoted to the US Supreme Court. Many of their episodes have touched on issues core to the functioning of democracy. “Regardless of where you fall on the political spectrum, you have to acknowledge how this administration has made basic questions of constitutional structure and separation of powers part of the daily news cycle,” Murray says. “It just so happens that many of these questions are surfacing at the Court, which gives us an opportunity to talk about them and the broader political milieu in which they arose.”
Preet Bharara and Anne Milgram, Stay Tuned and CAFE Insider
When he first conceived his Stay Tuned podcast, Adjunct Professor and Distinguished Scholar in Residence Preet Bharara says he envisioned featuring conversations with former government officials “about issues of justice, fairness, and the law.” But given developments dominating the headlines following the podcast’s fall 2017 launch, he says, “we’ve both expanded our guests and zoomed in on the acute problems and risks that are endangering our democracy.” Professor of Practice and Distinguished Scholar in Residence Anne Milgram ’96 frequently joins Bharara as a commentator on Stay Tuned, and co-hosts a second podcast, CAFE Insider, with him.
Sidebar: On the Front Lines
“There’s no question that the problems facing our democracy have reached crisis proportions,” says Wendy Weiser, director of the Brennan Center for Justice’s Democracy Program since 2004.
Weiser and her colleague Myrna Pérez, who directs the Brennan Center’s Voting Rights and Elections Program, have been on the front lines fighting voter suppression and gerrymandering. Pérez and her team, for example, helped draft an amendment to the Florida constitution that restored voting rights to most citizens in the state with felony convictions, and have been active in litigation against efforts to limit its scope. Weiser has spearheaded research, symposia, and drafting of amicus briefs in efforts around the country to curtail partisan gerrymandering. In 2019, the US Supreme Court said challenges to the practice are political questions beyond the reach of federal courts, but Weiser notes that a growing number of states have passed reforms to improve the redistricting process.
“I used to be worried that a hurricane would come and disrupt an election,” Pérez says. “Now, I’m like, ‘I need a hurricane plan, I need a coronavirus plan, I need a hackingof- the-election plan.’ You don’t get to take anything off the worry list. Things only get added.”
Michael Orey is public affairs director for the Law School.
Posted September 11, 2020.