ELB Book Corner: Sam Issacharoff: “The Institutional Foundations of Democracy”

I am pleased to welcome Sam Issacharoff to ELB Book Corner, author of the new book, Democracy Unmoored. Here’s the first of four posts:

The 2016 election of Donald Trump may have focused American attention on the rise of populism, but a more accurate lens takes a global view. Populism – and in particular, the anti-institutionalist style of governance – is ascendant across the world. Electorates around the world have proved susceptible to demagogic appeals that the traditional forms of democratic governance, and the leading role of political parties, are cabals of elites working against “the people.”

When I began turning my academic interests to the question of democratic fragility that surrounded the post-1989 emergent democracies, my primary focus was the multiple layers of institutional arrangements necessary for democratic governance, both inside government and through the layers of civil society. The efforts to stabilize newly elected government highlighted the indispensable role of institutions ranging from political parties to civil society outposts such as an independent media and universities in successful democratic rule. In particular, stable political parties have the proven ability to funnel passion into practice, blunt the edges of group animus, increase welfare protections, and compel accountability to a broader range of the society.

While my previous book, Fragile Democracies, focused on strengthening democratic governments and norms through empowered constitutional courts –I also warned that constitutional judicial review alone was not enough to protect against the rise of authoritarian regimes. Indeed, the risk of democratic fragility would apply in any context in which institutions falter.

Strikingly, the populist advance in both the new and the more stable democracies turns on an anti-institutional program of governance that mirrors the concerns that previously could be assigned to the birth pangs of new democracies.  Similar forms of politics and efforts to disrupt institutional constraints are found not only in the politics of Donald Trump and Brexit, but in Brazil, Poland, Argentina, Turkey, India, Hungary, and the list goes on. The prior focus on constitutionalism and constitutional courts is insufficient to contain illiberal regimes that can work within the frameworks of democracy.  And, as well shown by the illiberal democracies in Poland and Hungary, constitutional courts could be made and unmade as needed to facilitate executive power.  

I am honored that Rick Hasen has invited me to post on my new book, Democracy Unmoored, an examination of the common root causes that connect populist movements across the globe. The book aims not only to analyze the common roots of rising illiberalism but to underscore the need to shore up both governing institutions and intermediary organizations in order to protect the larger democratic ecosystem from being overwhelmed by a popular tide.

Let me open this first post with a subject of great concern to the readers here: the ways in which anti-institutional populism has chipped away at the most essential democratic institution itself: the ordinary administration of elections.  As much as contested elections are an article of faith in the U.S., uniquely this country held contested elections even during the Civil War and World Wars II, this country is conspicuously an outlier among democratic countries in relying not on an independent civil service-administered election process but on partisan election officials.  More precisely, the American system relies on bipartisan election oversight, a process by which representatives of the two parties watch over each other with an eye to the long-term stability of the enterprise.  On the tit-for-tat view of the world, everyone understands that what goes around comes around.  For the most part, and with a few exceptions in jurisdictions controlled by one-party exclusively, the system has worked tolerably well in yielding election results that reflect the expressed preferences of those that voted. 

But that was then.  Populists internationally believe that they are the true and only representative of the people.  No matter how autocratic their impulses, they point to their election as the source of their mandate.  This has yielded unfortunate efforts to compromise the electoral system to guarantee their tenure.  In one sense, this is but a microcosm of the greater effort to subordinate independent state institutions and the civil service, something that has now been made an express part of the Trump re-election effort.

Election administrators share with other elements of the modern administrative state a core of bureaucratic authority based on specialized expertise, certainty in command structures, continuity of institutional presence, and established forms of decision-making. Because the modern would-be autocrats claim legitimacy from the fact of having been elected, the mechanics of voting have a particular salience in bending state institutions to the populist will.  The distrust of institutions and growing polarization has led to direct assault on independent election administration.  Hundreds of bills have been introduced at the state legislature, and a troubling number passed, to increase partisan control of the counting and certification of ballots.

The attacks on American election administration echo a recurring pattern internationally, for a repeated populist goal is to subordinate any independent electoral authority. In Hungary, upon taking power in 2010, Prime Minister Orbán suspended the tenure of the Electoral Commission and forced each Commission member to be reelected by Parliament following each national election. Because Orbán’s Fidesz was the majority party in Parliament, the new Election Commission included no opposition members. In 2013, Fidesz reorganized the Commission again to place the power of nomination directly in parliamentary hands. Not surprisingly, in subsequent elections, the Commission has signed off on misinformation and false advertising campaigns, including incorrect election instructions directed at voters likely to vote for the opposition.  Poland followed suit, with the populist Law and Justice Party (Pis) claiming “monstrous irregularities in voting” as the pretext to allow Parliament to take over election administration.

Indian Prime Minister Narendra Modi and the Bharatiya Janata Party (BJP) have gone even further with the Citizenship Act of 2019 would have granted citizenship to undocumented religious minorities in India except Muslims (on the ground that they were not “indigenous” Indians) and a compulsory re-registration of voters that put Muslim citizens at risk of disenfranchisement. The law systematically disfavored a bloc of voters who would almost certainly vote for the opposition.  In the words of the Citizen’s Commission on Elections, the formerly independent Election Commission (and perhaps India more generally) has “morphed into an ‘unelected autocracy.’”

While the United States’ system of election oversight held up remarkably well in 2020, that is by no means a given going forward.  Certainly in the American context, fortifying impartial election administration ahead of the 2024 election is perhaps the most important short-term action for the long-term survival of the nation’s democratic system.

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