In Michigan and Wisconsin, lame duck Republican-majority legislatures are enacting laws to limit the powers of incoming Democratic governors. Two years ago in North Carolina, the same happened. These moves are particularly striking examples of recent aggressive Republican procedural hardball. Whatever the right rules are for the separation of powers, they should apply to both parties and not be changed opportunistically.
Democrats are exploring the possibility of legal challenges to those maneuvers. But party leaders face a more difficult, and perhaps more consequential, problem: Should they go tit-for-tat and escalate procedural shenanigans, rules-stretching and rules-breaking? Or should they strive, leading by good example, to maintain a system of norms that have provided political stability in the hopes that a more moderate, reasonable Republican Party will re-emerge?
Both strategies come with serious risks: Retaliating in kind could aggravate already deep polarization and wreck what’s left of our political norms. Restraint, on the other hand, would establish new norms that establish electoral disadvantages for Democrats and embolden Republicans.
There is a better option, and it also happens to be the best option. Democrats can use the Republican hardball against them by weaving together the Michigan, Wisconsin and North Carolina cases into a larger story to take to voters in 2020: the indictment of Republican attacks on democracy accompanied by an aggressive reform agenda for strengthening constitutional norms and democratic procedures.
Normally voters don’t care about procedural questions. One state and complaint at a time, they’re unlikely to remember or understand sharp dealing from two years before. If one party goes to the electorate complaining about the other’s behavior, it’s usually met with a shrug that all politicians cheat.
But a very clear narrative or popular revulsion — or both — can change that. Examples are found in the Progressive Era around the turn of the 20th century and again in the immediate aftermath of Watergate, when procedural reform gained traction, for better or for worse, and both term limits and campaign finance reform had moments of widespread popular enthusiasm. There’s good reason to think that the next two years offer the opportunity to create such a corruption narrative and to take advantage of what’s likely to be growing revulsion.
President Trump’s administration has made this job easier: The midterm election results showed that its scandals and disgrace have already focused voters’ attention. That’s not the time for retaliation and escalation. It’s the time offer prescriptions for rebuilding the rules that accompany a diagnosis that helps voters make sense of how badly wrong things have gone. Democrats can try to punish Republicans at the ballot box by trying to strengthen rather than weaken democratic norms.
The obvious place to begin is with the White House itself. Proposals to require presidential candidates to disclose their tax returns, give teeth to the Emoluments Clause, strengthen anti-nepotism rules that should keep unqualified family members out of sensitive offices, extend conflict-of-interest rules to include the president, and turn blind trust norms into binding rules won’t be hard to understand under Mr. Trump. They will reinforce voters’ distrust of the president while also offering ways to prevent his abuses from becoming standard practice.
Republican procedural abuses at the state level precede the Trump administration, but they can fairly be connected to it. Most important is disenfranchisement. Democrats should emphasize the sustained nationwide Republican effort to limit access to the ballot and offer proposals to restore the Voting Rights Act, end felon disenfranchisement, undo restrictive voter identification rules, ease registration, protect early voting and ensure that voting places are more widely and evenly distributed. Not only has Mr. Trump been on the wrong side of those issues, encouraging state crackdowns on imagined millions of noncitizen voters; but voting restrictions in narrowly won Midwestern states got him closer to the White House in the first place.
The package of reforms that the incoming House Democratic majority intends to introduce as its symbolic first bill, H.R. 1, contains some of these ideas mixed in with others that I think will muddy the message, but it’s the right kind of beginning. Other proposals, from statehood for the District of Columbia to gerrymandering reform, then make sense as part of the same effort to strengthen representation and fair democratic practice.
This is also the best approach for Democrats in the short term because they’re not in a strong position to retaliate even if an angry activist base wants them to. Despite some losses last month, Republicans remain in control of more governor’s seats and more state legislatures. More important, making things worse right now really is the wrong thing to do. If Democrats follow a course of unrestrained but legal tactics, we could find ourselves embroiled in even more severe dysfunction and a constitutional crisis. Tit for tat is sometimes necessary to enforce norms, but escalation in an already seriously polarized environment is dangerous.
If Democrats can offer a unifying indictment tying Republican attacks on democratic norms to Trump administration abuses, along with a coherent package of serious proposals to restore procedural fairness, voters will have a way of making sense of new examples of Republican sharp dealing. Proposals to shorten lame duck legislative sessions and to constrain their authority, for example, would reinforce the idea that Republicans have been the party of procedural abuses and unfairness while still setting forth a good neutral rule.
This is the alternative to doing nothing or making things worse: seek to punish Republicans in 2020 by offering a vision of how to make things better.
Jacob T. Levy, a professor of political theory and the director of the Lin Center at McGill University, is the author of Rationalism, Pluralism, and Freedom and a senior fellow of the Niskanen Center.