UChicago law professors Tom Ginsburg and Aziz Z. Huq explore populism and other threats to our political system.
Hungary’s prime minister Viktor Orbán came to prominence more than three decades ago as an ardent dissident leading a youth movement known as Fidesz. In a 1989 oration in Budapest’s Heroes’ Square, he called for free elections and the withdrawal of Soviet troops. When one rally turned violent, Orbán thrust himself between police and a fellow opposition leader, absorbing blows from state authorities. If the reformist vision of a post-Soviet thriving Hungarian democracy had a face, it was the thin and scruffy Orbán’s.
His remains the face of Hungary’s government—in part because it’s the only picture of a political leader that people are likely to see in public. As University of Chicago law professors Tom Ginsburg and Aziz Z. Huq note in their book How to Save a Constitutional Democracy (University of Chicago Press, 2018), the ubiquity of Orbán’s image on Budapest billboards does not reflect the prime minister’s popularity.
Instead, that ubiquity is the result of legislation enacted after his 2010 election victory, in which Fidesz captured a two-thirds parliamentary supermajority. With that legislative advantage, the party passed a law regulating billboards that ensconced a party-affiliated company as the market’s controlling power by driving the competition out of business. Opposition flyers have since been largely relegated to trees and utility poles, and newer regulations have further tightened the government’s control of political advertising.
Other legislative action under Orbán restructured the entire system of government. Parliament in 2011 adopted a new constitution that gave Fidesz power over the judiciary and control of previously independent administrative commissions overseeing elections, the budget, and the media.
Hungary remains an ostensible democracy, holding regular elections, passing laws in parliament, and adjudicating conflicts in the courts. But the legal changes since 2010 have given the ruling party’s slogan a ring of inevitability: “Only Fidesz!”
With its government institutions stacked in one party’s favor, the country presents symptoms of what Ginsburg and Huq call democratic erosion. Their analysis of recent global political history shows that imperiled democracies rarely end in sudden seizures of power such as military coups. Instead they tend to suffer “death by a thousand cuts”—the degradation of legal protections for citizens, civil servants, and political opponents, and the weakening of institutions’ independence from the governing regime. Democracy seldom can be said to have disappeared altogether in such cases; instead it remains in a diluted form that gives the cover of legitimacy to leaders who have exploited the system to expand their power.
Democratic erosion often occurs by means that do not violate the law, such as Hungary’s power-consolidating legislation, all passed through proper parliamentary processes. Leaders with authoritarian impulses in Venezuela, Turkey, and Russia, among other nations, have used similar legal means to tighten their grip on power. In all, Ginsburg and Huq found examples of significant “democratic backsliding” in 25 countries since World War II.
Since many antidemocratic strategies have the tacit support of the people, enacted through constitutional amendments or legislative processes, “Alarm in response to each of them can thus be condemned as excessive or histrionic,” Ginsburg and Huq wrote in a 2017 article. “But the cumulative effect of many small weakening steps is to dismantle the possibility of democratic competition, leaving only its facade.”
Democracies contain a paradox. Policies that erode democratic rule but have a modicum of popular support can be said to be the will of the people. In the United States, for example, the power to implement partisan gerrymandering of legislative districts or to institute voting restrictions accrues to electoral winners. “One person’s antidemocratic move,” says Ginsburg, “is another’s reflection of the popular will.”
UChicago political scientist James Lindley Wilson agrees. “Antidemocratic laws are, in one respect, a kind of expression of democracy, but in another respect, they’re undermining democracy as it exists over time,” he says. “It really can be the case that what’s being implemented respects democracy—it’s just that what the people have democratically decided to do is infringe people’s rights.”
Wilson’s book Democratic Equality, forthcoming from Princeton University Press, explores the question of what political processes best foster “the ideal that citizens are all equally in charge of their common life.” He presents reforms intended to better align the procedures of judicial review and establishment of legislative districts, for example, with the principle of equality at the ballot box. In Wilson’s estimation, many factors undermine that principle in the United States, such as the political influence of money.
For Ginsburg and Huq, a healthy democracy rests on three pillars: free and fair elections, freedom of expression and association, and “the bureaucratic rule of law”—that is, independent institutions such as the Federal Reserve, the Federal Emergency Management Agency, election and communications commissions, and the Central Intelligence Agency. How to Save a Constitutional Democracy assesses the strength of those three structural foundations in different countries and identifies tactics common in countries experiencing autocratic creep.
The authors point out that the strengths and weaknesses of any democracy coexist in a complex patchwork. In the United States, for instance, they believe that freedom of expression and association remain strong but that the electoral system lacks the independent oversight essential to maintaining its integrity.
According to How to Save a Constitutional Democracy, the forces of democratic decay often orbit around the sun of “charismatic populists,” divisive leaders who speak to aggrieved constituencies with protectionist, nationalistic overtones.
Populist movements, Ginsburg notes, have value, often emerging when “the system is not delivering to a significant number of people.” But “to govern as a populist is very different than to run as a populist.” From their bully pulpits charismatic populists tend to demonize immigrants and minorities as invaders and delegitimize the opposition as disloyal, even criminal. Such leaders “are not judged on their actual record,” Ginsburg and Huq write, but on the harmony between their rhetoric and the deeply felt grievances of supporters.” Orbán is one of several contemporary examples Ginsburg and Huq cite—including Vladimir Putin in Russia, Rodrigo Duterte in the Philippines, and Recep Tayyip Erdoğan in Turkey, to name a few.
Donald Trump is another. His 2016 election motivated the legal scholars to write their book, but they portray the president more as a symptom than the cause of the American democratic ills they diagnose. “We followed these issues for several years,” Ginsburg says. They treat the United States as just one of many countries “in which there’s pressure on the democracy,” and their interest is less in the current administration than in the “structural forces at work casting shadows on the persistence of liberal constitutional democracy” here and abroad.
While not sounding the alarm for an impending democratic collapse here, Ginsburg and Huq do warn against complacency on the part of citizens of democracies. With the exception of the Philippine president Duterte, they write, seldom does a political leader or party announce an overt intention to restrict rights or to establish a power monopoly. Would-be authoritarians have developed sophisticated deceptive techniques, working within the system to wrest the levers of government from the people they purport to represent.
“Not every wolf bares its teeth and claws or stands outside the door baying for blood,” the legal scholars write. “Some threats to liberal constitutional democracies do not announce themselves as such. And they are all the more dangerous for it.”
Brian Kemp ran for governor in the same 2018 election he oversaw as Georgia’s secretary of state. In Kansas, Kris Kobach did the same before recusing himself amid a recount during the Republican primary. Kobach won the Republican nomination but lost to Democrat Laura Kelly in the state’s general election. Kemp, a Republican, became Georgia’s governor after a controversial race in which his opponent, Democrat Stacey Abrams, claimed that he imposed voting restrictions as secretary of state that benefited his gubernatorial candidacy.
For the purposes of evaluating a democracy’s strength, from Ginsburg and Huq’s perspective, the truth of the accusations is almost beside the point. The fact that state laws allow partisan elected officials to be candidates in races they supervise invites conflicts of interest. “There’s no definition of democracy that I know of that says that’s OK,” Ginsburg says.
Yet the legal basis for such circumstances comes from the US Constitution itself, Article I, Section 4, granting the management of elections to state legislatures. In addition to permitting a technocratic supervisory role like secretary of state to become a partisan elected position, the constitutional provision opens the door to gerrymandered congressional districts. Ginsburg and Huq consider this section “the single biggest source of democratic dysfunction in the US Constitution.”
“We think partisan districting is a core problem in the United States,” they wrote last fall in an online symposium about the book, “as it has produced a set of representatives much more polarized than the general public.”
The practice of state legislatures drawing district lines to create safe congressional seats—undertaken by both major parties—creates noncompetitive races that disproportionately populate Washington with ideologues from left and right extremes. And whether a sitting secretary of state runs for another office or not, the incumbent’s place within the political apparatus in states where it’s a partisan elected position contributes to the perception of a thumb on the scale.
Those electoral circumstances exist in many places throughout the United States. Still, there’s a prevailing belief among US citizens, and many scholars, that the country is insulated from the worst antidemocratic abuses seen around the world. In many local, state, and national races, for example, there is genuine doubt about which candidate will prevail. Elective offices often alternate among parties, with one in power for a cycle or two, then voted into the opposition—a rotation that contributes to democratic well-being.
The notion of a loyal opposition itself strikes Huq as essential to any healthy democracy. Over time, each party will take its turn in the minority position. When a governing regime starts equating opposition with treason, he says, “that’s a significant move toward a failure of democracy.”
Huq mentions extreme forms of such tactics, including the regime of Venezuela’s Nicolás Maduro freezing the assets of opposition leader Juan Guaidó. Recent elections in Zimbabwe and the Democratic Republic of Congo, Huq adds, involved government forces directing legal and military action “against their political opponents who they deem their enemies.”
Even the intense partisan rancor of the contemporary United States seems a long way from such overt stifling of political competition, Huq acknowledges. But the polarization he sees today has changed his mind about how far democracy could decline here. “If you’d said to me three or four years ago, ‘Is this going to happen?’ or ‘Would we see this in the United States?’ I think I would’ve scoffed,” he says. Now he sees a need for active steps to shore up the pillars that support US democracy. “It’s not as if we’re moving all the way down the slope immediately,” he says, “but you can certainly see evidence of some movement.”
The most glaring warning signs of democratic erosion in the United States, How to Save a Constitutional Democracy argues, come from “President Trump’s words and deeds.” They cite the president’s false statements, his labeling of journalists and political opponents as enemies, and his impugning the Justice Department. At the same time, they emphasize that the threats to US democracy do not begin or end with one man. “The risks are structural, rather than being linked to the specific presidency of Donald Trump.”
Much of their concern is rooted in the US Constitution, even as they consider it one of history’s greatest instruments of self-government. In their estimation, several supporting structures of constitutional democracy remain strong. No threat of government sanction stifles political criticism, either in the media or in protest movements, proving the enduring power of the First Amendment. And there’s abundant political competition: a litany of viable Democratic presidential candidates have lined up to challenge Trump in 2020 and a Republican primary challenge even appears plausible.
But an 18th-century document, Ginsburg and Huq warn, does not stand up well to the 21st-century tactics employed by charismatic populists. Such politicians often work within a country’s constitutional system, fomenting a “slow, insidious curtailment of democratic institutions and traditions.” Their toolkit of antidemocratic instruments includes stocking courts with loyalists, directing partisan prosecutions of opponents or interfering with legitimate investigations into allies, creating a corrupt cross-pollination of business and government, and demonizing immigrants and the media.
“It ought not to be a surprise,” Huq says, “that when new technologies of antidemocracy develop, if you have a really old constitution that was written with a different set of risks in mind, that that constitution is not going to be well adapted to responding to present-day threats.” The Madisonian notion that separation of powers would maintain competitive checks between the branches of government does not hold up in a hyperpartisan era.
As contemporary American politics has illustrated, party loyalty and other political calculations tend to supersede adherence to the letter or spirit of constitutional law. Congress has not declared war since World War II, for example, but the use of military force has remained an executive prerogative, generating little effective legislative resistance despite the 1973 passage of the War Powers Resolution intended to stop such unilateral action.
Wilson, the UChicago political scientist, notes that the failure of Congress to prevent perceived antidemocratic practices often emerges from political considerations rather than constitutional prohibition. The same provision that grants states the power to regulate federal elections also says that “the Congress may at any time by Law make or alter such Regulations.”
The Constitution isn’t stopping them from implementing reforms to legislative districting, campaign finance, or voter registration, Wilson says. “If there were more political support, a lot of these reforms, at least, could operate under the Constitution that we have.”
Executive power also has more systemic limitations than Ginsburg and Huq suggest, according to UCLA constitutional law scholar Jon D. Michaels. He considers the concept of separation of powers to apply to an intricate web of overlapping entities beyond just the executive, legislative, and judicial branches—between the federal government and the states, the market and regulatory agencies, church and state, civilians and military, political appointees and career civil servants.
Together, he writes in an online symposium where several legal scholars responded to How to Save a Constitutional Democracy, those multidimensional interests form a redundant system of “Velcro, bungee cords, and safety pins” to prevent runaway executive power. “It is far from likely,” Michaels writes, “that a president, however popular, is going to find him or herself unchecked and unrivaled at each and every turn.”
Another bulwark against concentration of power, according to Ginsburg and Huq, is an autonomous civil service. They acknowledge that “bureaucracy is not commonly thought to be a natural ally of democracy.” The alphabet soup of government agencies—IRS, CIA, FEMA, EPA—along with recent additions such as the Consumer Financial Protection Bureau, whose first director was Richard Cordray, JD’86, can conjure images of red tape and unelected, unaccountable authority.
By contrast, How to Save a Constitutional Democracy considers such independent expertise crucial to democratic strength. The professional—as opposed to political—ethic underlying the work of most agency employees generates the reliable information necessary for informed political debate and decision-making.
When a ruling party engages in patronage appointments, or tries to interfere with the dissemination of information for political gain, it pollutes the notion of a neutral civil service and chokes off public trust. Though many people holding US bureaucratic positions are presidential appointees, the necessity of their maintaining an impartial role remains a defining principle that, Ginsburg and Huq say, deserves vigilant protection. In fact, they recommend mandatory skills and knowledge qualifications for political appointees, along with added nonpartisan career positions and stronger whistle-blower protections to further insulate bureaucrats from political influence.
To illustrate the bureaucratic rule of law in action, Huq points to a National Public Radio interview with Federal Reserve chair Jerome Powell that was scheduled to air after the publication of a jobs report. The data had not yet been made public when the conversation was recorded, so Powell refused to divulge the numbers, Huq recalls, even though his comments would not be heard until after the information had been released. Trump, by contrast, had tweeted favorable jobs data early in apparent violation of the federal rule Powell followed so closely.
“Powell is a Trump appointee. I’m not making a partisan point,” Huq says. But the Fed chair considered the integrity of the information sacrosanct. “That’s kind of what we mean by the bureaucratic rule of law, right?” Huq continues. “He put his bureaucratic hat on, not his partisan hat on. The fact that you have, by all accounts, quite a lot of civil servants doing that is, I think, a really important thing.”
Perhaps the most important guard against democratic erosion is the active participation of the people. Democratic citizenship, Huq says, takes work—not just voting. That means maintaining a respect for facts and a commitment to recognizing political opponents as competitors in the marketplace of ideas, not enemies. And, the book argues, it depends on civic and religious institutions far from the centers of power—families, schools, places of worship—instilling the value of self-government.
They see hopeful signs. The 2018 midterm elections drew relatively high voter turnout across the political spectrum, and several states passed referenda to limit partisan gerrymandering. Those are indications, however modest, of the people asserting the rights that the constitution grants them, the fundamental expression of democratic strength and endurance.
“Without a simple desire for democracy on the part of the many,” Ginsburg and Huq write, “the best institutional and constitutional design in the world will likely be for naught.”
Jason Kelly is a former associate editor of the Magazine.