Hey Democrats, Fighting Fair Is for Suckers
If Democrats are wise, they will embrace President Donald Trump’s demonstration that there no longer are any unwritten rules in American politics. (I’ve come to think that the key text for understanding our era is the 1997 movie Air Bud: “There’s no rule that says a dog can’t play basketball.”) Democrats should be preparing to exercise power, beginning as early as 2020, with that lesson in mind.
As we all know, Trump and the Republican Party that enables him eat norms for breakfast. A norm is a tacit and mutual agreement that certain exercises of power, while lawful, also are unthinkable. As a result, a willingness to think the unthinkable is itself a source of power. With that willingness, you can deny a president a hearing on a Supreme Court nominee. You can threaten to jail your political opponents and call an election rigged if you don’t win. You can demand investigations of your enemies, you can fire the FBI director investigating you, and you can quite possibly pardon yourself for federal crimes.
Trump and Republicans are not interested in self-restraint. We ought to be past surprise, for example, that the “let the people decide” standard invented by Mitch McConnell to block Merrick Garland’s Supreme Court nomination no longer applies now that Trump can choose a successor for Anthony Kennedy. Those who care about the future of liberal democracy in this country ought to be beyond outrage and ready for something altogether colder and more disciplined.
Democrats should plan to treat political norms, when and if they’re in charge of a unified government, the way Trump and the Republicans do. They should be readying a program of systematic norm-breaking for partisan advantage—but only if they are willing and able to follow it through to its conclusion.
That’s bound to sound inflammatory, especially because so much criticism of Trump has stressed the value of norms for keeping political conflict within manageable bounds. Even now, there’s a profoundly comforting appeal in the notion that we could one day soon cordon off the Trump years like a toxic Superfund site. The anti-Trump conservative David Frum recently endorsed that notion in an interview with Democracy. Democrats might “become an Eisenhower party of the broad center,” Frum said, as he called for the party to act as “a relatively conservative, unifying force in American life.” We could call it the Return to Normalcy program: Treat the Trump years as an ugly aberration and commit to rebuilding the consensus under which mutual self-restraint once again looks honorable rather than traitorous to partisans on either side.
For the opposite course, we could look to a left that is already building the case for court-packing, envisioning a Democratic president and Congress exercising their legal power to add two or more new justices to the Supreme Court. Or we could watch an activist base that is pushing the Democratic Caucus in Congress, however haltingly, toward procedural confrontations over immigration and court nominations. But the most detailed case against the Return to Normalcy—let’s call it the Normal Is Over side of the debate—is advanced by the political scientist David Faris in his new book, It’s Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics.
Faris’ response to the Normalcy program is that there is no value in conserving a burning house. The endangered state of American liberal democracy, he argues, calls for emergency steps from Democrats and the left. They should take advantage of legal and constitutional silences to “transform American politics in a lasting progressive direction,” Faris writes. “Doing so will require party leaders to pursue policy changes that will be ridiculed by their opponents as outrageous affronts to democratic decency and received by their own voters with puzzlement or even shock. They need to do it anyway.”
The list of those changes is dizzying. Grant statehood to D.C. and Puerto Rico, and break California in seven, with the goal of adding 16 new Democrats to the Senate. Expand the Supreme Court and the federal courts, packing them with liberal judges. Move to multi-member House districts to roll back the effects of partisan gerrymandering. Pass a new Voting Rights Act, including nationwide automatic voter registration, felon enfranchisement and an end to voter ID laws. Grant citizenship to millions of undocumented immigrants, creating a host of new Democratic-leaning voters: “Republicans have always feared that immigration would change the character of American society. Democrats should reward them with their very worst nightmare.”
All of these steps, Faris points out, could be achieved without amending the Constitution. They would rely on new legislation, but more important, on Democrats abandoning any lingering commitment to a norm about power: That legislation cannot have the explicit goal of securing a lasting partisan advantage.
This is not some fringe proposal. Eric Levitz at New York magazine has plausibly argued that Trump’s broad use of executive powers is laying the groundwork for an “imperial socialist presidency.” If Trump can slap tariffs on imports on national security grounds, why couldn’t the next Democratic president establish a sweeping green energy plan with the same rationale? On the scale of national security threats, doesn’t climate change rank above Canada? Or think of the growing number of states that have banded together to subvert the undemocratic Electoral College by pledging to award their electoral votes to the national popular vote winner.
The Normal Is Over program rests on the insight that the value of norms is conditional, not absolute. As the political theorist Corey Robin writes: “Some norms should be shattered, some should not. Some norm erosion undermines democracy, some enhances it.” Strong norms help us keep the peace, but some brands of peace are too unjust or corrupt to be worth keeping. The Senate of the mid-20th century, for example was a place of great comity, decorousness and bipartisanship—but it was also a last holdout of segregationists. Similarly, norms that today make America structurally less democratic, and structurally tilted toward minority rule, deserve to be disrupted.
The Senate privileges small, rural and predominantly white states, and guarantees the under-representation of the most populous parts of America. After the 2016 election, the 48 Democratic senators represented 55 percent of the national population. In the House, the effects of gerrymandering and rural overrepresentation are so strong that Democrats could win the national vote in a 7-point landslide and still end up with a minority of seats (a similar scenario played out in 2012). The Electoral College has nullified the choice of a majority of American voters in two out of the last five presidential elections. Choosing to leave things as they are means choosing quiet over justice.
Our political system is further unbalanced by the Republican consensus that one of the prime perks of power is shaping the political playing field to future advantage. Republicans do not even bother to hide this: On the heels of a court decision crippling public-sector unions, Trump tweeted, “Big loss for the coffers of the Democrats!” When a president elected by a minority nominates a replacement for Justice Kennedy who will, in all likelihood, continue to rule in defense of gerrymandering and voter suppression, he’s working to entrench minority rule in a vicious cycle. On the state level, Wisconsin Republicans pursued a campaign of disenfranchisement that likely threw the state to Trump in 2016; Ohio Republicans won the right to purge infrequent voters from the registration rolls; North Carolina Republicans moved to strip the governorship of powers after the office passed out of the party’s control; Pennsylvania Republicans threatened to defy a court ruling ordering them to draw fairer congressional districts.
It’s easy to caricature Democratic willingness to match these tactics as simply a case of playground logic: “Turnabout is fair play.” The law professor Orin Kerr expressed that sentiment last month. “Few things are more corrosive in politics,” he wrote, “than the conviction that you have been wronged so much that you’re justified in breaking all the rules to get even.” But norms are only norms when they are mutual; fairness is only fair when it’s shared. Democrats aren’t justified in breaking norms because they’ve been “wronged.” They are justified because the current system has ceased to function.
So if there is a problem with the Democrats initiating a counter-program of partisan norm-breaking, it doesn’t lie in an abstract idea of fair play. It lies in the logic of escalation. Republicans, too, can create senators out of thin air, can pack courts, can strip citizenship from immigrants Democrats have enfranchised.
The problem of escalation is particularly clear in the case of court-packing, which Faris describes as a reprisal for Republican actions. He proposes responding to Gorsuch’s illegitimacy by confirming, at the first opportunity, enough left-leaning justices on the Supreme Court to negate his vote. Further, he describes packing the lower courts as a preemptive defense against future Republican norm-breaking: “If expanding the lower courts strikes you as an incendiary threat to the very idea of peaceful politics, keep in mind that such a plan is clearly under consideration on the right.” It is—just as Republican plans to cap the Supreme Court at eight justices were under consideration when Hillary Clinton looked like the next president.
This is the logic of escalation, the fearful calculation by which cycles of conflict become permanent. Do it to them before they do it to us. The especially frightening thing about these cycles is they can spiral upward even when all involved are behaving rationally. It is correct that they are planning to do it to us; it is also correct that our having preemptively done it to them becomes their reason to do us one worse at the next opportunity. Each reprisal is self-defense, which justifies the next reprisal.
Faris and his Normal Is Over allies take this possibility less seriously than they should. In an interview with Vox, Faris was asked whether he saw an “end game” to the spiral of norm-violation. “I do believe we’ll have to find a way to end this procedural war at some point,” he said, “but now is not that time.”
Yet each turn of the spiral depletes our reserve of unthinkables. And after enough turns of the spiral, the last unthinkable is violence. Americans shouldn’t imagine we’re exempt from the logic that turns cold civil conflict hot.
Granted, there’s at least a plausible case to be made that a “spiral of conflict” is a bad model to describe the state we’re in, because Republicans do not look to Democrats for permission or precedent before breaking norms. There was no precedent for the theft of the Supreme Court seat now occupied by Gorsuch; there was no provocation for purging voter rolls or suppressing turnout. Given this asymmetry, isn’t the idea that Democrats are responsible for stopping an escalating spiral the worst kind of both-sides-ism?
I don’t think so. If the Normal Is Over caucus can imagine a unified, genuinely radical Democratic government in the next four or eight years, they’re also responsible for imagining an enraged opposition, strong in the conviction that the Democratic government is illegitimate. We saw exactly that the last time there was a Democratic government. And we can fully expect next time to be worse, because the culture of self-restraint is weakened with each iteration of the cycle.
This means that a strategy of Democratic norm-breaking is justifiable only if it can be reasonably expected to result in a lasting political realignment—to break the cycle rather than escalate it. It must so thoroughly disempower the other side that it forestalls serious reprisals. Put simply, the strategy that Faris and others on the left are proposing had better work—because the tit-for-tat conflict that would result from a halfhearted or incomplete attempt would be even worse than the status quo.
Faris himself grasps this point. The goal, he writes, “is to control the levels of power long enough to permanently alter the political trajectory of the country.” But stating the goal is not enough. The question Democrats should be asking is not, “Is American democracy in an emergency?” The right question is, “Do the risks of staying put in this emergency exceed the risks of trying to end it, and failing?”
Along with that assessment of risk must come some humility about past Democratic attempts to tame the far right, such as President Obama’s incorrect prediction that his reelection would “break this fever,” or the assurances that an “emerging Democratic majority” would force Republicans to come to terms with a demographically changing America. If Democrats are resolved to fight dirty, they should be studying cases of successful and failed realignments, fleshing out the ideological framework to explain themselves, and building the internal consensus it will take to follow through. They should be assessing their leaders with the goal of realignment in mind, rejecting those whose mental models still have a place for concepts like “meaningful bipartisanship.”
Realignments are nothing short of revolutionary events. Democrats should begin a norm-breaking program only if they are willing to complete it. And they can complete it only if they are willing to tune out the very civil, very serious, and very wrong voices that will demand half-measures at every step.
The best way to build that willingness is by referring the specifics of the Normal Is Over program back to a couple of broad, animating questions. First, when evaluating a part of the program, Democrats should ask, “Does it weaken a structural barrier to democracy?” Second, “Does it make it easier to enact policy that expands the governing coalition?” Obamacare, for instance, not only expanded access to health insurance, but also encouraged more Americans to become politically active to protect that access. Faris’ proposals generally pass these tests.
But even if Democrats quibble with the details, they should work to match his program’s coherence, of interlocking actions that are driven by realignment rather than resentment. If Democrats can’t fully commit to that course, then they should pursue something like the Normalcy program as a distant second best. The worst course of action would be an unfocused, impulsive, spasmodic program of norm-breaking, one that begins without a sense of where it is supposed to end. In that case, the logic of escalation will supply an ending.
Of course, there are no permanent endings in politics. But chapters can end. And this one will end—or rather, the next one will begin—with the consolidation of a new set of norms, a new set of rules to channel and restrain political conflict. Just as in the old saying about treason, there’s no such thing as successfully fighting dirty—because successfully fighting dirty leaves behind a new set of acceptable political behaviors in its wake.
After 1828, Jacksonian Democrats normalized the “spoils system” of patronage appointments. After 1896, William McKinley and Mark Hanna normalized corporate contributions to political campaigns. After 1980, Reagan Republicans normalized supply-side economics, bringing the doctrine from the fringes to the mainstream. Real political success can change, and has changed, our notions of the thinkable and the unthinkable. Democrats should aim for nothing less.
They should aim for nothing less, even as they understand that they will be dealing in mere probabilities, in risk and in fog. America’s most successful revolutionary—so successful that he is rightly regarded as a re-founder—had something to say about what it takes to work through such a fog: “firmness in the right, as God gives us to see the right.” Understand that your view of what’s right is contingent, fallible, permanently imperfect. And then be firm.
Rob Goodman is a political theorist at McGill University and a former congressional speechwriter. He is the co-author, most recently, of A Mind at Play.