should Democrats play constitutional hardball in 2019-20?

In How Democracies Die, Steven Levitsky and Daniel Ziblatt use comparative evidence to argue that democracies rely on two “soft guardrails”: constitutional forbearance and mutual toleration.* Forbearance means that political actors refrain from using all the powers that the written text of the constitution affords them. Regimes rarely survive once politicians routinely honor the letter but not the spirit of the rules. Toleration means explicitly acknowledging that the other side has a legitimate place in politics, a right to its views, and a right to govern if it wins elections.

We are perilously close to losing both constraints. This won’t be the first time in our history, but then again, our history has involved major breakdowns, like a Civil War that killed 620,000 Americans.

If Republicans beat expectations in 2018 and 2020, both parties’ behavior is predictable. Republicans will remain behind Trump because their base likes him and because the whole party will be winning under his banner. Democrats will resist as aggressively as possible, but with built-in limitations.

The choices for both sides will become much harder if the Democrats do well in 2018 and then 2020, capturing at least one house of Congress and then maybe the whole federal government. The Republicans’ choices will then be:

  1. The GOP stays Trumpian. This is what their base wants. Their losses will have been concentrated in swing districts and among independent-minded incumbents who tangled with the Trump base. The remaining party will be all-in for Trump. Since this scenario assumes that they lost ground in elections, they will be even more hostile to the political system, the media, and the Democrats, now seen as clearly rigging the system against real Republicans.
  2. Or the GOP turns into a principled conservative party that is skeptical of ambitious government, resistant to both taxation and public debt, and committed to constitutional restraint, including a restrained presidency. It presents that package as attractive to younger and more diverse voters and grows less demographically distinct from the Democrats.

Meanwhile …

  1. The Democrats play what Mark Tushnet calls Constitutional Hardball. Because they lost a Supreme Court seat when the Republicans wouldn’t even consider Merrick Garland, they return the favor and refuse Trump any new appointments. They launch aggressive investigations against Trump, his family, and his cabinet, focusing on potential financial crimes. They lay the predicate for impeachments and then prosecutions. They shut down the government over budget disputes, reckoning that Trump will send undisciplined tweets that will make him look at fault. If a Democratic presidential candidate wins in 2020, they drive through political reforms that advantage them in subsequent elections. In short, they decide not to be rolled, and also that their substantive policy goals require strong action.
  2. Or the Democrats try to restore mid-20th century norms of constitutional forbearance and partisan toleration. That doesn’t mean that they seat Trump’s Supreme Court nominees or refrain from investigations, but they try to follow the traditional procedures. For example, they bring Trump’s nominees up for votes but vote nay, and they make their investigations as focused and as bipartisan as possible. Democrats look to peel off independent-minded Republicans who are uncomfortable with Trump’s style and go out of their way to honor these colleagues.

Game theory is tailor-made for situations in which two players can make independent choices and the result is a single outcome. Here is a guess about how these choices would play out.

Democrats play “Constitutional Hardball” Democrats try to restore cooperative norms
Republicans stay Trumpian Democrats probably win on policy–increasingly so as the demographic trends favor them. Republicans retain 35% of the population that is overwhelmingly white and Christian and increasingly angry. The GOP still dominates some states and regions. Right-wingers give Democrats rationales for using increasingly hardball tactics. Political violence grows. Democrats are corrupted by the lack of legitimate checks. Democrats get rolled on policy. Possibly they expand their electoral power as a result of demographic trends plus a reputation for being responsible (if their forbearance is widely understood as such). Possibly they just look weak, and lose.
Republicans shift to principled conservatism Perhaps the Democrats prevail on policy and grow stronger due to demographics. Or perhaps they further erode confidence in government and thus strengthen principled conservatism, which wins elections and policy battles. The republic is safe. Democrats make incremental progress on policy, but Republicans offer a conservative alternative that sometimes prevails.

This is pretty close to a Prisoner’s Dilemma (PD), with the best option for all being the bottom-right, yet both sides have strong reasons to choose the other course. It’s a little more complicated than a pure PD because it plays out over time. The options and payoffs depend on the precise circumstances of the moment–say, in 2019 with a Democratic House and a narrowly Republican Senate, or in 2021 with (hypothetically) a newly inaugurated Democratic president. But versions of the choices arise at each stage, from congressional primaries today to legislative strategies in 2021.

*See pp. 7-8. However, my comments are based on hearing the authors speak, not having read their whole book yet.

About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.
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