Tag Archives: democratic norms

It’s The Culture, Stupid!

People who follow politics will remember the large sign that James Carville  posted in Bill Clinton’s campaign headquarters: “It’s the economy, stupid!” After Clinton won, a number of political strategists have quoted it approvingly, and certainly seem to believe that  economic performance decides elections.

These days, objective performance not so much. Thanks to a media environment that facilitates massive amounts of disinformation, even when the economy is doing very well--as it is now–partisans are able to convince large numbers of Americans otherwise.

So what does matter?

A recent podcast from Persuasion confirmed my belief that it’s the culture. Jonathan Sumption  is a British Judge , author and historian, On the podcast, he and host Yascha Mounk discussed the prospects for democracy in the English-speaking world and the power of strong political conventions.  Several observations during that discussion were intriguing–and I found a couple of them debatable– but I just want to focus on one of them.

Democracies depend on two things. They depend on an institutional framework, and they depend on a cultural background. It isn’t usually the institutional framework that fails. That’s still there. What fails is the cultural background, which is the desire of people to make it work, the desire of people to respect plurality of opinion, and to accept that sometimes they can’t get their way, however important the issue and however right they think they are. In most countries which have lost their democratic status, the institutions are still there, there are still elections of a sort, there are still parliaments—but they are largely meaningless because the culture that sustained them disappeared.

I think this is essentially correct. In the U.S., as I have written (many times!), several of our institutions are getting pretty creaky, but our deeper problem is the erosion of what political scientists call “democratic norms”–unwritten but widespread expectations about proper behaviors. In the Senate, for example, we expect that the chamber will take up a President’s nomination for a Supreme Court seat, and it was shocking–and a very significant blow to the democratic culture–when Mitch McConnell refused even to hold hearings on Obama’s nominee.

The ridiculous antics from the lunatic caucus aren’t simply embarrassing; they constitute daily assaults on longstanding norms of governance and appropriate  official behavior.

Let me suggest a rather odd analogy,  Over the past few years, I have noticed increasing numbers of drivers exhibiting dangerous behaviors: excessive speeding on residential streets and running red lights. (Not simply speeding up through yellow–zipping through intersections well after the signal has turned red.) As such bad road behaviors grow, other drivers are tempted (or encouraged) to ignore the rules. If we can no longer depend upon the vast majority of drivers to observe the culture of “traffic obedience,” driving will become far more dangerous–and vehicular behaviors that traffic engineers depend upon will no longer work.

Culture is also implicated in the reports about Trump taking boxes of Presidential materials with him when he left the White House. As an op-ed in the Washington Post noted, although the retrieval of those documents was relatively cordial,

For all the calm of the retrieval, the very fact that Trump could simply take the records — and that they could remain in his possession for so long — demonstrates that our institutions still haven’t adjusted to the problem of a lawless and disorderly president. The routines of presidential recordkeeping (and presidential transitions) anticipate a generous, bipartisan spirit of cooperation. So ingrained are these expectations that, even nearly seven years since Trump jumped into presidential politics, it’s hard to describe his willingness to take records the way we should: as an alleged theft of federal property.

It is impossible to have formal, specific rules for every aspect of official life. As the author of the Post article noted, numerous general rules rest on our ingrained assumptions about the way elected and appointed officials will behave. With respect to official Presidential records, the norm is “that the physical integrity of the records will be maintained and that they were properly created in the first place.” Neither of those assumptions was safe with Trump, who regularly “tore up briefings and schedules, articles and letters, memos both sensitive and mundane” according to reporting from The Post.”

When the social expectations we call “norms of behavior” are first violated, we are shocked, but when numerous people follow suit, it isn’t very long before those norms simply disappear. It’s one thing when it is no longer the “norm” for men to wear ties–it’s quite another when we lose the norm of obeying traffic laws. Or expectations of Presidential behavior.

The loss of democratic norms and a culture of compliance poses an existential threat to self-government and the rule of law.

 

 

 

 

The Real Checks And Balances

It always comes back to culture–the paradigms into which we are socialized. We call the color of the sky “blue” because that’s what everyone else calls it. We wear clothing that (usually) covers our genitals because we have been socialized to believe such coverage is appropriate. (I’m waiting for the anti-mask “patriots” to insist that laws requiring such clothing are an assault on their liberties…but I digress.) 

We accept society’s expectations for large areas of our behavior: the side of the road we drive on, what we consider edible, how many people there are in a marriage…(my students are always shocked to discover that–despite the anti-same-sex-marriage insistence that marriage is between “one man and one woman,” in many countries those unions are between one man and two or three women…)

Culture is incredibly important. True, changing a culture is a very slow process, a fact that tends to “bake in” unjust rules and attitudes. But without cultural expectations, we humans would have to make decisions about every aspect of our daily lives. I once heard a lecturer ask why men in certain businesses/professions routinely and unthinkingly wore a patterned piece of cloth around their necks. (A tie.)That expectation does appear to be changing.

All this is to say that most behaviors are not simply the result of explicit laws or rules. We call expectations of many behaviors, especially ethical ones, “norms,” and those expectations are frequently more potent that statutes and ordinances–especially when they guide political behavior.

A recent column from the New York Times is on point.Tim Wu asked “What really saved the Republic from Trump?” Assuming the Republic actually was saved–I worry that the jury is still out–I think Wu makes an important point.

Americans are taught that the main function of the U.S. Constitution is the control of executive power: curtailing presidents who might seek to become tyrants. Other republics have lapsed into dictatorships (the Roman Republic, the Weimar Republic, the Republic of China and so on), but our elaborate constitutional system of checks and balances, engineered largely by James Madison, protects us from despotism.

Or so we think. The presidency of Donald Trump, aggressive in its autocratic impulses but mostly thwarted from realizing them, should prompt a re-examination of that idea. For our system of checks and balances, in which the three branches of government are empowered to control or influence the actions of the others, played a disappointingly small role in stopping Mr. Trump from assuming the unlimited powers he seemed to want.

What really saved the Republic from Mr. Trump was a different set of limits on the executive: an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials. You might call these values our “unwritten constitution.” Whatever you call them, they were the decisive factor.

Wu described the failures of multiple, explicit “checks and balances” over the last four years, pointing out that Senate Republicans mostly allowed Trump to do whatever he wanted. They allowed “acting” appointees who could not have been confirmed to run the federal government. They treated the impeachment process as nothing but a party-line vote. It’s hard to dispute Wu’s conclusion that the Senate “became a rubber stamp for executive overreach.”

Wu identified as “firewalls” what he called the three pillars of the unwritten constitution.

The first is the customary separation between the president and federal criminal prosecution (even though the Department of Justice is part of the executive branch). The second is the traditional political neutrality of the military (even though the president is the commander in chief of the armed forces). The third is the personal integrity of state elections officials.

I had considerable concern about the first of those firewalls under William Barr, but it ultimately did hold; Barr refused to find massive vote fraud where it didn’t exist. And a large number of lawyers with the DOJ protested, quit and otherwise made it clear that efforts to turn the Department into Trump’s personal law firm were a violation of DOJ culture.

Members of the military have been pretty uniformly admirable, and to my great surprise, so have Republican election officials–even in Georgia.

The question going forward is:  how do we sustain and nourish those democratic norms? How do we reinforce a small-d democratic culture, and ensure that future generations share its expectations? I don’t have the answer, but I’m fairly certain it involves a significant improvement in civics education. 

A New Normal?

Given the daily headlines highlighting the incompetence and corruption of the Trump Administration, an assertion that America will not and cannot “go back” to a normal Presidency isn’t exactly welcome.

But that was the premise of an essay in Politico Magazine  a couple of weeks ago.

President Donald Trump has spent three years incinerating a group of practices commonly lumped together under the nebulous category of “norms and traditions,” causing the chattering class to worry that he’ll “destroy the presidency,” “undermine American democracy,” “erode” our institutions with each break with precedent or decorum. There are also those, including presidential candidate Joe Biden, who insist that things can go back to normal when Trump is gone. Either in January 2021 or January 2025, these optimists hope, America will experience a restoration of these timeless customs.

Here’s the problem: Many of these “presidential norms and traditions” that Trump has left by the wayside aren’t timeless at all; they’re actually quite new. They grew up alongside and in reaction to the expansion of both the federal state and the presidency—a process that began in the early 20th century but gained steam from the 1930s onward. With the growth of what Arthur Schlesinger Jr. called the “imperial presidency,” each occupant of the Oval Office has left his imprimatur on the development of what we think of as normative presidential conduct.

In other words, these norms emerged as a response to America’s changing needs.

Noting that America has changed dramatically over the 200+ years of its existence, and that  those changes require corresponding adjustments in governance is the sort of otherwise obvious observation that gives self-styled “originalists” fits. They like to believe that “living constitutionalism” is just judge-made law, unmoored from constitutional foundations. In reality, living constitutionalism is the rational application of “original intent,” because it requires safeguarding the original values that animated our Constitution and Bill of Rights in situations that the Founders could never have anticipated.

Our challenge is to decide which of the numerous norms being trashed by Trump are needed to protect those foundational values, and thus must be restored.

The article points out that many of the behaviors we think of as long-established– congressional oversight mechanisms and restrictions on FBI and CIA political activity, for example–are relatively new, prompted by the criminal abuses of the Nixon Administration.

All of which is to say, the idea of independent agencies staffed by nonpartisan career public servants, free of political interference, is a very recent development. Once unraveled, it is not certain to be reassembled.

New, however, is not the same thing as unimportant.

The takeaway is not that certain traditions lack value. On the contrary, it’s pretty reasonable to expect that presidents not misdirect law enforcement and civilian officials to do their political bidding, that presidents be transparent with the media, and that courts remain free of political influence. The point, rather, is that these norms were not timeless features of our system. They emerged over 50 or so years in response to excesses that accompanied the growth of the federal state and in response to a popular sense that citizens required greater visibility into, and accountability from, federal officeholders whose purview grew enormously in the modern era.

As I read through the article, I was anticipating some sort of prescription for how we might re-institute the norms that have clearly proved their importance. I didn’t get it. The article ended by noting that “broken eggs can’t be mended.”

Perhaps we can’t fix broken eggs, but we can–and must–fix America’s federal government.

Once Trump is gone–and I fervently hope that departure occurs sooner rather than later–we need to take a step back and decide what rules, systems, and cultural expectations are essential to advancing–and perhaps finally beginning to live up to– American values and ideals.

If All Your Friends Jumped Off A Cliff, Would You Jump Too?

My mother used to throw that line at me when I protested that “all the kids” were doing whatever it was she disapproved of.  Despite promising myself that I would treat my children differently–I used that same line with mine. It made a point.

Let’s face it–we all know that just because your co-worker is stealing from the till doesn’t give you a pass to do likewise.

That homely truth applies even more urgently to our political system. One of the reasons so many of us are so concerned (okay, frantic) about the current willingness of the GOP to ignore time-honored norms–to “play dirty”– is that damaging behaviors by one party are too often seen by the other party as permission to act just as badly.

As I have repeatedly maintained, the nation needs two responsible, ethical, adult political parties. When one party is off the rails, it’s harder for the other party to maintain discipline and enforce ethical and responsible behavior.

Time Magazine recently made that point. 

The article pointed to incidents in which Senate Democrats ignored longstanding norms during the recent Kavanaugh hearings. I will admit that I cheered many of those norm-breaking efforts; after all, we stand to lose a half-century of settled jurisprudence that has expanded and confirmed individual rights if this partisan warrior is confirmed, but it’s hard to argue with Time’s observation that the behaviors of Senators Harris, Booker and Warren, among others, was inconsistent with the decorum and comity we expect in such hearings.

The article wasn’t a hatchet job on the Democrats; far from it. It conceded that the relatively minor deviations of the Democrats during the hearings paled in comparison to the daily offenses perpetrated by the occupant of the Oval Office:

After all, this is a president who argued a judge couldn’t be fair because of his Mexican ancestry, criticized a Gold Star family, called for violence against protesters, threatened to jail his opponent, declined to release his tax returns,hired his daughter and son-in-law to work in the White House, declined to disentangle himself from a D.C. hotel and other businesses,conducted official business from his private golf club, chastised his own attorney general for allowing investigations into himand two Republican lawmakers, repeatedly called reporters “the enemy of the people”and regularly attacked the FBI and the judiciary.

The point of the article was not to castigate the Democrats’ newly aggressive behavior; the point was to identify an undeniable problem: once partisans start down this path, with each side justifying inappropriate behavior by the equivalent of “well, he started it!” we are in danger of losing critically important, if unwritten, rules that safeguard reasoned democratic deliberation and make government accountable.

In his speech on September 7th, former President Barack Obama called on Democrats to show up at the polls in November and restore “honesty and decency and lawfulness” to government– to take the high road back to power. Obama is urging Democrats to play fair despite the fact that neither the President nor his GOP has shown any interest in playing by the rules.

During the Obama Administration, a Republican in the House shouted that the president was a liar during a State of the Union while the grassroots — including then private citizen Trump — spread conspiracy theories about his birth certificate. Republicans in the Senate blocked his judicial nominees at a higher rate, leading then-Senate Majority Leader Harry Reid to change the Senate rules to end the filibuster on most nominees. Republicans then refused to vote on Obama’s nomination of Merrick Garland to the Supreme Court, then ended the filibuster on Supreme Court nominees to allow Trump to appoint Neil Gorsuch.

The real test will come when Democrats return to power (hopefully after the upcoming midterm elections). If they decide to exact revenge by acting as dishonorably as the GOP has acted, we may well see an ugly race to the bottom and a further erosion of civility and  willingness to work together to get the people’s business done. As the Times article concluded:

One day, Trump will no longer be in office, but by then it may be that breaking norms is the new normal.

If the Democrats jump off that cliff just because the Republicans jumped before them, we will all be the real losers.

Even The Graft Is Worse…

Ever since the election of Donald Trump, political scientists have been writing about the role played by the erosion of democratic norms and public ethics.

I recently came across an article titled “Whatever Happened to Honest Graft,” in a publication called Splinter. The article is a vivid illustration of that erosion; it began with a description of Transportation Secretary Elaine Chao and her husband (my nominee for “America’s most evil man”) Mitch McConnell.

Last week, The Intercept’s Lee Fang and Spencer Woodman published a story about how the family of U.S. Secretary of Transportation Elaine Chao, whose husband is Senate Majority Leader Mitch McConnell, funneled millions of dollars to their family foundation from their own offshore tax shelters, which are incorporated in the Marshall Islands in order to hide their dealings and profits from the United States government. That is, the government that Chao and McConnell help to run.

The Transportation Department says, “Chao has no affiliation with the family shipping business,” though she did receive at least one officially reported gift of millions of dollars from her father…. McConnell, who has never had a career outside of politics, and who has served in the U.S. Senate since 1985, somehow has a personal net worth of around $26.7 million. None of this is particularly unusual.

The article wasn’t about Chou and McConnell–the clue lies in the observation that the reported behavior isn’t “particularly unusual.” For example, there’s Bob Corker, who Matt Taibbi has described as“a full-time day-trader who did a little Senator-ing in his spare time.”

Corker is notable for the volume of his trades—in one extreme example, he made 1,200 trades over a nine month period in 2007, according to Taibbi—but not for the acts of making ethically questionable investments or carrying out trades seemingly based on information known only to members of Congress.

Former Secretary of Health and Human Services Tom Price was a longtime member of Congress; his Cabinet confirmation was nearly derailed by the emergence of reports that he had invested in a small Australian biotech firm and then had pushed legislation to speed the FDA approval process. During his seven months at HHS, he made a habit of buying healthcare-related stocks and then pushing for policies that would increase their value.

The article explained at some length how much various Senators will benefit personally from their “tax reform” bill–after all, a bill intended to benefit the wealthy could hardly help benefitting lawmakers, since most of them range from extremely comfortable to very rich. As the author of the article notes,

I think this blatant self-dealing, and thin-skinned outrage at the suggestion that it is what it plainly looks like, is another example of norm erosion. In a Twitter thread a while back, the writer Jedediah Purdy identified a version of this new shamelessness: the more you think others are cheating on their taxes, running agencies for their own interest, doing public service just to switch sides through the revolving door, the more useless it is for you to do differently.

Perhaps I’m oversimplifying, but the basic outline of the story looks pretty clear. Bribery, graft, and naked self-dealing used to be commonplace in our politics, especially in the big urban “machines,” as exemplified by Tammany Hall. The professionalization of our politics—its takeover by serious lawyers and respectable, credentialed men—meant, first, that those practices were reformed away. Then it meant that they returned, totally legal but slightly disguised, as normal politics.

As is the case with most of the norms that have been swallowed by the sea recently, this one’s erosion is exemplified by Donald Trump, but he is the culmination, not the cause. Serious people who imagine themselves to be virtuous, or at least no less virtuous than their neighbors, have normalized what used to be easily recognizable as graft.

As the author points out, at least corrupt organizations in the past, like Tammany Hall,  actually built things (Tammany Hall built most of upper Manhattan) while they were skimming off the top and doling out overpaid patronage jobs.

Even in their corruption, today’s elites seem to lack the sense of civic or social responsibility of our crooks of old.