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From lame-duck lawmakers, hardball politics or undermining of democracy?

Why We Wrote This

Elections are often about divisions. But once the polls have closed, elected officials are expected to find ways to work together. Political observers worry that drive for constructive governance may be eroding.

Robert Killips/Lansing State Journal/AP
People gather to protest at the Capitol Rotunda in Lansing, Mich., Dec. 4. Lame-duck lawmakers in Michigan and Wisconsin are pushing to strip incoming leaders of some powers.

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For the past eight years, Gov. Scott Walker (R) of Wisconsin worked with a GOP-controlled Legislature to deal one stunning defeat after another to Democrats in a state once known for its progressive tilt. Now, after Democrat Tony Evers narrowly beat Governor Walker in November, GOP state lawmakers are trying to push through some last-minute laws in their lame-duck session to limit the governor’s powers. The Republican lawmakers defend their actions as normal politics. Hardball maybe, but within bounds. Democrats and other critics beg to differ. The GOP is undermining democracy, they say – ignoring the will of the voters and turning their power dial up to “11.” “It’s a rejection of constitutional democracy,” says Chris Edelson, an assistant professor of government at American University. Behind the struggle lies a larger issue: US politics is based on many norms that aren’t explicitly outlined in the US Constitution or the nation’s laws. Two of them, according to Harvard professors Steven Levitsky and Daniel Ziblatt, are crucial to a functioning democracy: “mutual toleration,” or treating political opponents as rivals on a field of competition, not enemies to be crushed; and “institutional forbearance,” or restraint in use of power. In other words: Don’t test the limits of the law, or obviously violate its spirit.

US politics is based on many standard practices that aren’t explicitly outlined in the US Constitution or the nation’s laws. Of these norms, two stand out as crucial to a functioning democracy, according to Harvard government professors Steven Levitsky and Daniel Ziblatt: mutual toleration and institutional forbearance.

“Mutual toleration” means treating political opponents as rivals on a field of competition, not enemies to be crushed. “Institutional forbearance” means restraint in use of power. Don’t test the limits of the law, or obviously violate its spirit.

Are GOP lawmakers on track to break these norms in key Midwestern states? Democrats won gubernatorial elections in Wisconsin and Michigan in November. Now Republican-controlled legislators in lame-duck sessions are trying to strip some authority from the governors-elect and other incoming Democratic officials before they take power.

The Republican state lawmakers in question defend their actions as normal politics. Hardball maybe, but within bounds. Democrats and other critics beg to differ. The GOP here is undermining democracy, they say – ignoring the will of the voters and turning their power dial up to “11” while they can.

“I think it’s bad. It’s a rejection of constitutional democracy,” says Chris Edelson, an assistant professor of government and fellow with the Center for Congressional and Presidential Studies at American University in Washington.

Wisconsin is perhaps the clearest example of the current controversy.

For the past eight years, Republican Gov. Scott Walker has worked with a GOP-controlled legislature to deal one stunning defeat after another to Democrats in a state once known for its progressive tilt. They’ve cut the benefits and curtailed the power of public sector unions, and passed a so-called right-to-work law over fierce union objections.

Democrat Tony Evers, the state school superintendent, narrowly beat Governor Walker in November as the latter tried for a third term.

Now GOP state lawmakers are trying to push through some last-minute laws in their lame-duck session to limit Wisconsin gubernatorial powers. Among other things, their legislation would curtail early voting, which tends to favor Democrats; give lawmakers, not the governor, the power to appoint members of an economic development board; require the governor to get legislative permission to seek changes in joint federal-state programs; and block Mr. Evers from withdrawing Wisconsin from a lawsuit challenging the Affordable Care Act, as Evers promised on the stump to do.

GOP leaders are blunt about the intent of their moves.

“Listen, I’m concerned. I think that Governor-elect Evers is going to bring a liberal agenda to Wisconsin,” said Senate majority leader Scott Fitzgerald at a news conference on Tuesday.

Guardrails of American democracy

Similarly, Republicans in Michigan are fighting to restrict the powers and flexibility of an incoming Democratic governor, attorney general, and secretary of State. Among other things, they’re using a lame-duck session to try to pass legislation allowing lawmakers to intervene in legal proceedings involving state laws the governor or attorney general may be reluctant to defend. Under proposed GOP legislation, oversight of campaign finance law would shift from the governor to lawmakers. 

The Wisconsin and Michigan efforts echo a 2016 North Carolina struggle in which the GOP legislature successfully limited an incoming Democratic governor’s right to appoint various board members, and slashed the number of state officials the governor could appoint, among other things. The moves faced significant legal challenges.

In some ways all these state-level political battles can be framed as normal, if bare-knuckled, stuff. Lame-duck legislative sessions are common, and commonly messy. Changing the makeup of, say, state election boards is not a major alteration in state government. 

On Dec. 5, Matt Glassman, a former Congressional Research Service analyst who is now a fellow at Georgetown University in Washington, tweeted that he’s not a fan of what’s happening in Wisconsin and Michigan, “but there’s also a lot of hyperbole here.”

It’s true that the changes aren’t all big deals, says Michael Wagner, an associate professor at the University of Wisconsin-Madison School of Journalism and Mass Communication whose research focus is the functioning of democracy. But some are, Professor Wagner says. Changes in early voting rules are huge. Many of the proposed alterations to the powers of the governor and attorney general in Wisconsin are aimed at preventing them from supporting Obamacare – a position on which both explicitly campaigned. 

“The Wisconsin state legislature is changing the job description of the governor and the attorney general between Election Day and Inauguration Day. That is not a democratic, peaceful transition of power,” Wagner says.

Norms are the guardrails of American democracy. It’s not written in the Constitution that the president travel to Capitol Hill to deliver a State of the Union, but it’s a norm that they do. At the national level, President Trump has proudly shattered many norms. Chief executives did not use to publicly criticize their own cabinet members, though there’s no law against it. They didn’t use to give overtly political talks with troops as a backdrop. The list goes on.

Mutual toleration and institutional forbearance are among the most important of these guardrails, write Professors Levitsky and Ziblatt in their recent book, “How Democracies Die.” The survival of democratic systems depends on them, because democracy requires a degree of opposition.

“Think of democracy as a game that we want to keep playing indefinitely,” write Levitsky and Ziblatt. “To ensure future rounds of the game, players must refrain from either incapacitating the other team or antagonizing them to such a degree, that they refuse to play again tomorrow.”

The problem is that using political power to its utmost inspires the other side to do the same. Neither party has a monopoly on the desire for triumph. And if a cycle of retaliation begins, what then? This is a core subject of the Monitor’s “Democracy Under Strain” series. Pieces begin to fly off the machine of American government, which has chugged along since the Constitution’s ratification.

“These things might be legally OK, but they’re still dangerous,” says Professor Edelson of American University. “They’re kind of a warning sign that the system is not working, especially given the national environment.” 

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