The Erosion of Democratic Norms by Stephen V. Arbogast

This being an election season, and one widely regarded with apprehension, it seems an appropriate time to take stock of what has happened to democratic norms in our country.  Norms and habits are intangible things.  They instruct behavior at junctures when multiple paths forward beckon and decisions must be made.  In this sense, it can be said that democratic norms are what helps keep a republic from degenerating into tyranny.  Serious erosion then must be monitored and whenever possible reversed if our 248-year experiment in republican rule is to, in Ben Franklin’s words, ‘be kept.’

This 2024 election will be the tenth in which I will vote for a President.  The first race I was dimly aware of goes back even further – 1956 – it set Dwight Eisenhower against Adlai Stevenson.  I thus have a reasonable claim to have seen America’s democratic norms operate over a considerable length of time.  I thus state with concern that the healthy habits I once took for granted have seriously decomposed.

Admittedly today there is much talk about threats to democracy.  I find this talk essential partisan and unserious.  In most cases, those asserting such claims most vociferously are busy undermining important norms in other ways.  Sober assessments of the threats to our democracy are largely missing in action.  It is therefore my purpose here to offer such an assessment in as non-partisan as possible.  At the end, I’ll also offer some comments about how this erosion is impairing the development of sound public policy, and more specifically a coherent national energy policy for this Era of Transition.

We begin with something fundamental to democracy, elections trusted by the electorate.  In years gone by, almost all voters believed that Presidential elections were fairly administered.  Indeed, one took the ubiquitous presence of the League of Women Voters as a guarantee of sorts that election ballots were fairly cast and counted.  This is not to say that voters believed there was no cheating.  We were aware that big city machines engaged in electoral shenanigans.  Sometimes these even proved decisive.  Richard Nixon had a good case that he lost in 1960 because of ‘graveyard votes’ the Daley machine in Chicago delivered to JFK.  However, such manipulations were regarded as exceptions that didn’t shape most national elections.  Moreover, there was another norm which helped preserve faith in electoral integrity – Presidential losers accepted the outcome as counted even if they felt cheating had played a role in their defeat.

Some 19^th century presidential races were bitterly contested as unfair.  The Hayes 1876 election victory over Tilden comes to mind, as does Adams 1824 win versus Andrew Jackson.  However, for most of the 20^th century presidential losers accepted their defeats despite whatever misgivings they may have felt.  The aforementioned 1960 Nixon concession is the standout case.  JFK’s victory was razor thin and Nixon had a strong case that fraud in Chicago had put Kennedy over the top.  He chose not to contest the outcome.  In a moment of grace for which he has never received due credit, Nixon did so on the basis that it was more important for election results to be accepted ‘as-is’ than to engage in the political and legal wrangling necessary to reverse a verdict.  The George W. Bush/Al Gore race in 2000 is a second example.  The race seemed determined in Bush’s favor by a margin of 300 votes in Florida.  Gore was within his rights to demand a recount.  There was considerable legal wrestling between the Bush and Gore teams over what ballots should be ‘recounted.’  Eventually the Supreme Court called ‘time,’ and the race was decided in Bush’s favor.  At that point Gore simply accepted the result.  There was no ongoing effort denouncing the decision as an ‘electoral steal,’ and certainly no efforts to upend the counting of electoral votes in Congress.

These histories throw into sharp relief the unprecedented nature of the 2020 election.  The loser, Donald Trump, has not accepted the results.  Despite massively losing the popular vote, he spent the weeks between November and Biden’s January inauguration denouncing the election as stolen and attempting every legal and many extra-legal tactics to overturn the result.  Pressing Vice-President Pence to interfere with the electoral vote count was perhaps the summit of these ‘coup-like’ efforts.  Trump then spent the last 3-plus years denouncing his defeat under the label ‘Stop the Steal.’

This narrative has been widely, frequently recounted in the media.  There, along with the January 6 riot at the Capitol, it is properly framed as a threat to democratic governance.  Less acknowledged however, were the many tactics employed in the walk-up to the election which provided a basis for seeing the election as tainted by fraud.  2020’s race was the ‘Covid election.’  Under this cover, election rules were reframed in more than a few states.  Mail-in balloting, ballot-harvesting, and long post-election periods for ballot counting were allowed well beyond prior year standards.  Pennsylvania’s re-worked rules were especially noteworthy, as they were enacted in seeming defiance of the state’s constitution.  From a certain point of view, these changes made it easier to submit and count fraudulent ballots, and since election officials were dealing with these extended practices for the first time, they were unprepared to determine their impact.  Meanwhile, many who most loudly proclaimed Trump’s post-election maneuvers an existential threat were conspicuously uninterested in finding out if these pre-vote maneuvers gave grounds for serious suspicions.  The bitter fruit of 2020 now bears down on the 2024 race.  It is widely expected that a close victory by either side will not be readily accepted by the loser.

Sadly, this loss of faith in electoral integrity is not the only democratic norm suffering erosion.  A critical second front concerns the assault on constitutional checks-and-balances.

Checks and balances among three independent branches of the Federal government, and between that government and the several states are key parts of the constitutional architecture of this Republic.  They intentionally make it difficult for a President, a political party or a Congress to impose its will if it is acting in defiance of constitutional law or the consent of the governed.  These political barriers can be frustrating to those convinced their cause is righteous.  Segregation continued apace for decades while no civil rights bill could make it through the U.S. Senate filibuster rule.  However, when the logjam finally broke in 1964, a bitterly divided society was more ready to make the leap to racial equality.

These checks-and-balances served another purpose.  They also made it difficult for a party in power to entrench itself by ‘rigging the game.’  Said differently, it could not use a simple majority to pass laws which then favored its retention of power.  Either their efforts would fail in the Senate where bills need 60+ votes to become law, or they would be overturned upon review by the Supreme Court.

What then are we to make of the multiple ‘trial balloons’ floated to eliminate the Senate filibuster, add justices to the Supreme Court, and make Puerto Rico and the District of Columbia new states?  It is not hard to imagine that with the filibuster rule gone and/or four new Senators joining one party’s caucus, everything from the Supreme Court’s composition to the rules governing elections would be in play for a party that controls both the Presidency and a simple majority in Congress.  That various forms of these proposals are now aired as campaign promises with nary a protest from university government departments, most editorial boards or the Congress itself speaks to how eroded our protection of checks-and-balances has become.

This brings us to the least obvious but perhaps longest standing example of eroded norms, those now prevailing in Congress.  To appreciate this frontier, one must remember certain behaviors which used to characterize congressional activities.  For one thing, there used to be Representatives and Senators fiercely committed to preserving Congress as an independent government branch.  Figures like Henry Cabot Lodge, Sam Rayburn and Robert Bird would resist Presidential intrusions into Congressional deliberations, often forming ad hoc coalitions to craft outcomes quite different from those desired by the White House.  Cross-party alliances would sometimes form to accomplish these tasks.  Many today don’t remember that Republican votes rounded up by Minority Leader Everet Dirkson were the decisive factor in getting the 1964 Civil Rights and Voting Rights Acts to a vote.

This kind of ‘cross isle’ behavior has almost become extinct.  Party-line votes are the rule of the day.  Any independent-minded Representatives and Senators face ruthless internal party reactions.  Increasingly they simply retire to private life, as opposed to laboring on in the wilderness, e.g., Liz Chaney, Joe Manchin and Mitt Romney.  With their departures, the chances for cross-party compromise to secure legislation in the national interest took another hit.

The Manchin retirement is a good illustration of the price to be paid in terms of public policy.  Senator Manchin was largely responsible for the Inflation Reduction Act turning out as it did.  This law, the most prominent energy legislation passed in many years, turned out to: a) be an ‘all of the above’ approach to energy, b) command support across the energy industry, from renewables through oil & gas, and c) enjoy surprising bi-partisan political support post-enactment.  Indeed, oil companies are reported as telling candidate Trump not to attempt its repeal should he win.  Manchin withheld his decisive vote time and again until the Biden administration recrafted the bill to something that would win broad support.  It is this kind of congressional consensus building that is eroded when independent Senators and Representatives can no longer survive today’s polarization.  It will get even worse if the filibuster is removed and all subsequent party efforts are dedicated to gaining a simple majority in both Houses.

What is to be done?  Begin with the historic medical axiom – ‘first do no harm.’  Remember the Founder’s case for Checks and Balances as the guardrails against tyranny.  All the trial ballons for rigging the game should be allowed to float away.  Keep the filibuster.  Leave the state election rules alone.  Wait for a consensus moment to do anything on the Supreme Court, where there may be a case ultimately for a retirement age or a rotational appointment schedule.  Make some public sense of how mail-in ballots should be administered and counted.

Next there should be careful consideration to address the erosions which Donald Trump has single-handedly authored.  Without a doubt, Trump’s departure from the scene will be helpful.  He has brought an extraordinary level of polarizing rhetoric, personal demonization, and threats of retaliation into our political sphere.  Much of this has seemed so egregious to the objects of his scorn that they find it easy to justify almost any ‘means’ to serve the ‘end’ of denying Trump power.  This reaction has fostered its own forms of erosion.  Watching senior FBI, CIA and National Intelligence figures, representatives all of organizations not supposed to interfere in domestic politics, publicly present specious evidence of Trump’s collusion with Russia, comes to mind as one painful reminder of how ‘ends justifying the means’ logic in Trump’s case further erodes belief in the integrity of ‘non-political’ government agencies.

Thus, in the wake of Trump’s departure there should be a reckoning.  America has a proud tradition of political reform.  Each time our constitutional order has been threatened, reform movements have appeared.  These have brought changes which today enjoy wide acceptance, everything from the three constitutional amendments passed after the Civil War, to the Civil Service Act aimed at the ‘spoils system,’ to the granting of women’s suffrage and term limits for the President.  Our current era of democratic decomposition suggests that another reform moment is needed and may be approaching.

Should such a reform moment appear, it is my view that the most consequential reform would be introducing term limits for Congress.  At a stroke, such a reform would help address two problems – party-line polarization in Congress and a gerontocracy of leaders from safe districts hanging on well beyond their time.  More frequent turnover in both Houses would create space for more independence and reemphasize the need for bargaining across party lines.  With these habits reinforced, party leaders would also be redirected away from attempting to rig the game.  Combining this with some accepted standards for balloting in this electronic age would go far towards restoring this precious democratic experiment.  Whatever its warts, it remains the best functioning large-state political system in the world and an ongoing hope for many who know only repression and injustice elsewhere.

A final word about better public policy in the energy space.  Sooner or later, America’s yawning fiscal deficits will have to be addressed.  Already the Federal Reserve Chairman is describing them as “unsustainable.”  For years this issue has been ‘kicked down the road’ and there is little indication that the current presidential candidates are disposed to lead efforts for a remedy.  However, there will come a point where the Treasury finds itself 1) facing issues executing successful auctions and 2) losing ever more control over long term interest rates.  These developments will signal that the fiscal crisis is approaching.  When it does, there will be an opportunity for a next big step forward in energy policy.  Carbon taxes can be introduced as revenue raisers.  Simultaneously, some of the subsidies currently supporting ‘green energy’ can be eliminated.  The federal production tax credit for wind has been around since the 1990s.  Surely that industry is finally ready to stand on its own.  Combining carbon taxes with subsidy elimination is a budget ‘two-fer,’ a simultaneous revenue generator and cost reduction.  They also represent what almost all economists would label ‘an efficient solution.’

Can such a sensible solution be accomplished?  Taxes will have to be addressed in 2025 – several Trump reductions of 2017 expire next year.  While the opportunity outlined just above could be seized and implemented, most likely that will not happen.  Probably, it will take an approaching fiscal crisis to force minds and wills to focus.  That said, it is not too soon to begin preparing the ground by acknowledging the need to restore democratic norms, talk about improving Congressional ability to legislate, and illustrating the kinds of energy and fiscal solutions that would serve the national interest.