Photo by European Parliament

Photo by European Parliament

This past year the U.S. experienced a transfer of presidential power from Donald Trump to Joe Biden.

It was not a peaceful transfer of power.

On January 6, a large and angry mob descended on the U.S. Capitol to “Stop the Steal” by obstructing the constitutionally mandated certification by Congress of the Electoral College results. The Capitol was stormed by rioters, many armed, who vandalized the building, terrorized its occupants, and sought to capture and/or do physical harm to the Vice President, the Speaker of the House, and a range of congressional Democrats. Some called this a coup, others an insurrection. However you label it, it was an assault, and it was violent.

Behind this episode was a broader and deeper network of far-right extremist groups—Proud Boys, Oath Keepers, Three Percenters, and others—that engaged in some level of coordination and planning of the event, as part of a longer term and ongoing effort to plan similarly violent events.

And behind this network was a broader and deeper campaign of rhetorical violence by then-president Donald Trump, who spent years relentlessly vilifying opponents and describing congressional oversight efforts as a “hoax” and a “coup,” and then spent months orchestrating and inciting a “Stop the Steal” movement, with the help of his Twitter feed, and the wide range of platforms afforded him by Fox News, Newsmax, One America News, and by Twitter, Facebook, and YouTube.

Political science conventional wisdom has it that a free and fair election in which the results are honored is a minimal requirement of a modern democracy.

This year the U.S. failed this test, for the first time in its history. 

The U.S. is truly exceptional– exceptionally vulnerable to the destruction of democracy. And the threat is multi-dimensional, emanating from both the aggressive Republican base and from its usually passively-aggressive establishment leadership.

At one level we have the ongoing threat associated with right-wing and white supremacist extremism, which the FBI and the Department of Homeland Security both believe is the greatest terrorist threat that the U.S. currently faces.  

But at a deeper level, we have the Republican party itself, not simply its “extremist” periphery, but its core leadership and identity as a party that is hostile to the norms of constitutional democracy and to the principle of one person, one vote that grounds constitutional democracy. While both dangers are real, and while there is a synergy between them, it is the latter danger—more legalistic, more insidious—that is the more serious. And whether it can be countered by Democrats and democrats committed to constitutional democracy remains very much an open question.

The far-right extremist threat

Violent neo-fascist groups are hardly specific to the U.S.

Case in point: the German government’s recent effort to place the far-right AfD (Alternative for Germany) party under official surveillance as a threat to constitutional democracy has received much attention in the news. Germany is not the only democracy to have emerged from the horrors of World War II with a commitment to prevent extremist organizations, especially neo-fascist ones, from coming to power. But given the experience of Nazism, the German legal system has been particularly committed to such a “militant democracy.” 

Article 9 [Freedom of association] of the German Constitution, the Basic Law, declares that “(1) All Germans shall have the right to form corporations and other associations and (2) Associations whose aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding, shall be prohibited.” And Article 21 [Political parties] declares that “(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organization must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds; (2) Parties that, by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality; (3) Details shall be regulated by federal laws.” 

The use of these provisions to investigate and surveille the AfD has been challenged by the party, in accordance with the law, and it is currently being litigated in the German courts. A wide range of parties, from the ruling Christian Democratic party to the Green party, support the investigation. As Green party lawmaker Konstantin von Notz has stated: “We know from our history that even in a democracy, enemies of the rule of law can be elected [and] then eliminate democracy and the rule of law.”  This Voice of America report is worth quoting at length:

The BfV’s decision to target the AfD was taken after a year-long inquiry that produced a 1,000-page report. The study was undertaken by BfV agents, lawyers and academic experts on extremism, who examined speeches, broadcasts and social media posts of 302 AfD leaders and officials.

According to Der Spiegel magazine, which obtained a copy, the report concluded that the AfD has a questionable relationship to democracy and is dismissive of human rights. Its stoking of hatred of Muslims and immigrants is poisoning the political climate in the country and risks spawning violence, the report’s authors say. A substantial part of the party, the report says, “seeks to awaken or strengthen a fundamental rejection of the German government and all other parties and their representatives.”

The report’s authors also worry that the “perpetual defamation of and contempt for the democratic order and the party’s political opponents” risks triggering the kind of political violence seen in January in Washington, when Trump supporters from shadowy fringe groups, including the QAnon conspiracy movement, stormed the U.S. Capitol in a bid to disrupt congressional confirmation of Joe Biden’s election as president.

And the authors highlighted how Germany’s Bundestag was targeted in August when several hundred protesters clambered over fencing ringing the national parliament, and ran toward the entrance, some waving the “Reichsflagge” — the black, white and red flag of the German Empire, colors later adopted by the Nazis. Police pushed back the mob.

Who would have thought that the American political system would be an example to Germany—of what must be avoided if neo-fascists are to be prevented from flourishing, and constitutional democracy is to be protected.

In the meantime, here in the U.S., under the constraints established by a very different set of legal statutes and traditions, a similar sort of investigation is now being pursued in response to the January 6 events. Federal investigators are pursuing a wide range of criminal connections among far-right groups, and U.S. attorneys are pursuing hundreds of criminal prosecutions in connection with the January 6 attack. But it is not only groups such as the Oath Keepers that are being investigated. CNN has reported that “Federal investigators are examining communications between US lawmakers and Capitol rioters.” Indeed, this week Rep. Pramila Jayapal (WA), the leader of the House Democratic Progressive Caucus, has demanded that the House Committee on Ethics and the Office of Congressional Ethics open official investigations into the conduct of three Republican members of Congress—Lauren Boebert (CO), Mo Brooks (AL),  and Paul Gosar (AR)—who were especially connected to the January 6 events. And recently confirmed and appointed U.S. Attorney General Merrick Garland has promised to fully enforce federal law, and to further investigate the January 6 attack and the broader network of extremist groups behind it.

There is still much to be discovered about the networking, communication, and planning behind the January 6 events, and much to be done to prevent such events from recurring, in Washington, D.C. and in state capitols throughout the country.

The far-right threat is very real. It has gone transnational, in alarming ways (Propublica recently reported that “Global Right-Wing Extremist Networks Are Growing. The U.S. Is Just Catching Up”). But here in the U.S., the threat is exceptionally serious, because the very exceptional American tradition of “republican liberty” has involved a “right to bear arms,” a paranoia about “vigilance in defense of liberty,” and an unrivalled proliferation of guns and of armed citizens. The National Rifle Association claims over 5 million members; and the Small Arms Survey of the Congressional Research Service estimates that there are over 393 million civilian-owned firearms in the U.S.  

Armed far-right individuals and groups pose a real neo-fascist threat to democracy in the U.S. Countering this threat is no mean feat; it will require a serious political effort. 

But the most serious danger to democracy does not lie with angry, armed, flag-bearing and swastika-wearing rioters and conspirators lurking outside the halls of power. It lies elsewhere—with men and women in business suits inside the halls of power in state capitols throughout the country, who claim to represent “law and order” and who use the law itself to do their political dirty work.

The mainstream Republican extremist threat

Georgia Secretary of State Brad Raffensperger and his colleague, Gabriel Sterling, performed a true service to the American public last year by refusing to bow to Trumpist pressure and threats of violence, and by performing their duty to certify last November’s election results, and then the Senate runoff election results in January.

There is a very real difference between Republicans who insist on upholding the rule of law and those who are happy to discard the law when it suits them, to incite violence, and to justify the subversion of a lawful democratic election. But the difference, while real, ought not to be exaggerated. For extremist rhetoric and far-right thuggery, of the kind promoted by the hard core, Q-anon-believing  Trumpist “sedition caucus,”  and enacted by their “Oath Keeping” accomplices, is not the only way to undermine democracy. More effective, and dangerous, is the deliberate manipulation of the law to suppress political opposition.

And here the relevant example is not the German AfD but the Hungarian Fidesz party of Primce Minister Viktor Orban. Orban is a well-educated man (he even once held a Soros-financed fellowship) who is serious about the law and equally serious about governing his country while being a “player” in the European Union. He is no thug or rabble rouser. He has held the reins of power in Hungary for the past ten years and has played a dominant role in Hungarian politics for more than twenty years. A maker of grandiose speeches about “illiberal democracy,” “Christian Europe,” and “Hungarian destiny,” he has succeeded in winning election; using governing power to amend the Constitution, transform the law, and deliberately attack, and dismantle, crucial features of constitutional democracy; and then, having stacked the deck in his party’s favor, winning re-election. 

Orban has proven himself the master not of overthrowing elections, but of managing elections according to the laws that he and his party have engineered to cement their power. There is a consensus among political scientists who study Hungary that Orban has succeeded in damaging “liberal democracy” beyond recognition. Andras Bozoki, one of Hungary’s top political scientists, and an important liberal democratic public intellectual, has argued persuasively that since the 2013 Constitutional reform, Hungary ceased to be a democracy, and has become a “hybrid regime” that combines electoral competition with severe limits on political opposition, independent media, and an independent judiciary. And Bozoki insists that this authoritarianism faces few domestic obstacles and is only partially constrained by membership in the EU.

Last Spring Orban went a step further, declaring a state of emergency in the face of the pandemic, asserting the right to rule by decree, and pushing his country’s continued membership in the EU to the brink. As Yasmine Serhan observed last April in The Atlantic: “there is a line between using emergency powers and outright authoritarianism—one that Hungary has undoubtedly crossed. With this week’s passage of a law effectively removing any oversight and silencing any criticism of the Hungarian government, Prime Minister Viktor Orban can now rule by decree for an indefinite period of time. That such an erosion of democracy could happen openly in the heart of Europe has caused an uproar, with many questioning what, if anything, the European Union can do to stop one of its own from undermining the very values that underpin the bloc.”

Orban’s Hungary remains an EU member. But a few weeks ago his Fidesz party was pressed to withdraw from the “European People’s Party”, the European Parliament’s caucus of center-right parties. Even among Europe’s established conservative parties, Orban’s Fidesz is considered beyond the pale. 

And yet Orban remains “the American right’s favorite strongman.” And while he is quite adept at demonizing immigrants and “foreigners,” attacking journalists, intellectuals, and Jewish philanthropists, and posturing as the true savior of an authentic nation that is maligned by the world—things he does with more composure and polish than his soulmate Trump—what he models more than anything else for the American right is his mastery of the art of using the law to subvert constitutional democracy.

And it is through the practice of this art that the Republican party today poses the greatest threat to democracy in the U.S., by using the legislative process itself to restrict voting in ways that are designed to disenfranchise voters who actually or potentially oppose Republican priorities or who represent demographic groups that Republicans consider suspect, especially people of color. 

This is hardly news. But it is nonetheless increasingly serious.  The Washington Post reported last week that since the 2020 election over 250 new laws have been proposed or passed by Republican-controlled state legislatures to limit by mail, early in-person, Sunday, and Election Day voting, threatening to create hurdles for many millions of voters (The Brennan Center’s regular updates about these efforts are indispensable). As Paul Waldman writes, commenting on the actual justifications advanced for these measures, “Republicans have stopped pretending they aren’t trying to suppress Democratic votes.” To be sure, the U.S. has had a long history of voter suppression, especially in the Jim Crow South. And, as Michael Waldman documents in his The RFight to Vote, the Republican party has pursued such tactics for decades. But as Ari Berman—one of the best journalists on this topic—wrote last month in Mother Jones, “Republicans Are Taking Their Voter Suppression Efforts to New Extremes.”

These efforts are pervasive. And they are being pursued, and justified, by some of the very same Republicans who only months ago were lauded for defending democracy.

Remember how Gabriel Sterling, the Georgia elections official, steadfastly defended the “security” of the November election? Now he defends the effort by Georgia Republicans to institute more restrictive voting regulations, on the grounds that . . . . they will enhance “security” and ease “election administration”—long rhetorical staples in the Brian Kemp playbook.  Secretary of State Brad Raffensperger has been more cautious in discussing the bills, though he has been clear in defending new voter ID requirements (which should not be surprising since he was elected, as Brian Kemp’s successor, on a platform of instituting new restrictions in the name of “security”).

At the same time, Raffensperger has been unequivocal in using his position and his office to attack Stacey Abrams and the two voter mobilization organizations with which she is associated, the New Georgia Project and Fair Fight. Back in late February an official press release from the Georgia Secretary of State Office read: “Breaking” Stacey Abrams Funded Group That Pushed Voting Machine Disinformation in Georgia.” The press release, which quotes Raffensperger criticizing Abrams, centers entirely on “a new report” that was in fact an article published by conservative writer Mairead McArdle at The Daily Wire—an outlet described beneath the article as “one of America’s fastest-growing conservative and counter-cultural outlets for news, opinion, and entertainment.” The piece is a hit job designed to make Abrams sound like a hypocrite who wrongfully has attacked voting practices in Georgia. Indeed, describing a past Abrams call for supporters to “’pack the courthouse” as a call to “swarm a federal courthouse,” McArdle even implies a parallel with January 6. In Georgia, and in statehouses throughout the U.S., Republicans are reiterating one or another version of the “stop the steal” mantra, claiming that it is their opponents who threaten free and fair elections, and it is they who defend them.

Will the Republican Party Successfully Orbanify The U.S.?

The national leadership of the Republican party in the Senate and the House is determined to obstruct the policy agenda of the Biden administration. Last week’s stunningly unanimous “no” votes on the publicly popular and obviously important Covid relief bill makes this clear.

Yet while McConnell and McCarthy and their followers for the moment seem to have embraced the role of an uncooperative but nominally “loyal” legislative opposition, it is worth pointing out that when it counted, almost every Congressional Republican, and all Republican leaders, refused to stand up firmly for constitutional democracy. For weeks after Trump’s defeat every important Republican refused to publicly acknowledge Biden’s victory; when Mitch McConnell finally publicly acknowledged it after a month of silence, it was regarded as a huge breakthrough—because of the widespread Republican denial that persists to this day.   When Congress finally voted on January 6 to validate Biden’s Electoral College victory, 147 Republicans—8 Senators and 139 House members—voted to overturn the election results. And when Congressional Democrats acted immediately to remove Trump from office via impeachment for his incitement of the January 6 insurrection, Mitch McConnell blocked the effort, and then led his fellow Republican Senators in an overwhelming vote against Trump’s impeachment conviction.

Only a few weeks ago, 197 out of 203 House Republicans, and 42 out of 50 Senate Republicans, registered the opinion that Donald Trump’s incitement of the January 6 insurrection warranted no Congressional sanction—many indeed persisted in blaming the left for the assault—and that it was time “to move on,” and return to the normal business of relentlessly attacking the Democratic party.

The national Republican Party has made clear its contempt for constitutional democracy. It embraces the wave of voter restriction legislation being pressed in state legislatures. And it stands determined to do everything in its power to resist any federal effort to strengthen democratic voting rights.

Democrats do not now have the power in the Republican-controlled states to protect voting rights—and Republicans control 30 state legislatures and in 23 of these there is also a Republican Governor. The Merrick Garland-led Justice Department does retain some power under the Voting Rights Act of 1965 to monitor and litigate particularly egregious efforts to suppress voting. But court rulings, especially the 2013 Shelby County v. Holder decision, have severely limited Justice Department action, and Republicans have proven adept at framing state-level restrictions in ways that have the appearance of racial and political “neutrality.”

This is why the Democratic-controlled House just passed H.R.1, the “For the People Act of 2021,” by a margin of 220-210—with not a single Republican House member voting in favor.

The bill is a major piece of legislation, considered by some to be as important as the Voting Rights Act of 1965. The Act would establish broad federal standards to govern an arcane and archaic system of election administration that differs from state to state, and that is currently being traduced by statehouse Republicans. The Brennan Center’s “Annotated Guide” to the Act offers an exhaustive account of each element of the Act, its legal foundations, and its likely success in its goal to “transform our democracy by making it fairer, stronger, and more inclusive.” I wrote about the original version of the Act back in 2019, outlining its key provisions, describing Mitch McConnell’s slanderous opposition, and quoting from a January 17, 2019 Washington Post McConnell op ed entitled “Behold the Democrat politician protection act.” In that piece he described the Act as one of many “far-left proposals to retighten Washington’s grip on the country [and] to grow the federal government’s power over Americans’ political speech and elections.” Of the Democrats, he wrote that: 

“They’re trying to clothe this power grab with cliches about ‘restoring democracy’ and doing it ‘For the People,’ but their proposal is simply a naked attempt to change the rules of American politics to benefit one party. It should be called the Democrat Politician Protection Act. Democrats aren’t only coming after free speech. They’re also taking aim at your wallet. . .  From the First Amendment to your ballot box, Democrats want to rewrite the rules to favor themselves and their friends. Upending the FEC, squeezing taxpayers, attacking privacy and jeopardizing our elections are a price they’ll happily pay for this partisan power grab.”

Back then McConnell was Senate Majority Leader and was able to easily kill the bill.

Today he is leader of the Senate minority. But given the Senate’s 50-50 partisan split, the precarity of the Democratic majority–which rests on the single vote of Vice President Kamala Harris in the event of a tie—and the Senate filibuster rule, which effectively requires a supermajority of 60 votes to pass any legislation, McConnell is poised to again prevent the bill’s passage. And it is clear that the dangerous crisis of democracy that the nation experienced during the interregnum between the November 2020 election and January 2021 inauguration is of no real consequence for Republican leaders. And so McConnell’s current comments about the For the People Act not simply repeat what he said over a year ago. In a variation on the “Stop the Steal” theme that still pervades his party, McConnell also blames Democrats for seeking to subvert democracy:

“For several years now, we’ve seen the political left grow less interested in having normal policy debates within our governing institutions, and more interested in attacking the institutions themselves to tilt the playing field in their side’s favor,” McConnell said. “When their side loses a presidential election, it’s not Democrats’ fault, but the Electoral College’s. When they don’t like a Supreme Court decision, it’s time to threaten the Justices or pack the Court. When long-standing Senate rules threaten to frustrate far-left proposals, it’s the Senate rules they want to change. . . . they want to try to use their slim majorities to unilaterally rewrite and nationalize election law itself. . . to use the temporary power the voters have granted them to try to ensure they’ll never have to relinquish it. We cannot keep trending toward a future where Americans’ confidence in elections is purely a function of which side won. A sweeping power grab by House Democrats, forcibly rewriting 50 states’ election laws, would shove us farther and faster down that path. In this country, if the people who win elections want to hold onto power, they need to perform well, pass sound policies, and earn the support of the voters again. House Democrats do not get to take their razor-thin majority – which voters just shrunk – and use it to steamroll states and localities to try and prevent themselves from losing even more seats next time.

In the ultimate act of contempt, McConnell accuses Democrats of doing the exact opposite of what they are doing, while giving cynical cover to his own party’s efforts to do exactly that: stream-roll changes in state laws in order to ensure that they will never have to relinquish power, and then lie about it to prevent any federal effort to preserve the democratic “fair fight” for power.  McConnell has the temerity to declare that “Protecting democracy cannot be a partisan issue,” while all the while supporting hyper-partisan measures designed to limit democracy.

The challenges to democracy in the U.S. run deep. The “For the People Act” only addresses some of them. But without its passage, the door will be open to Republican efforts to further limit majority rule, thereby cementing their own minority power. In that event it will become increasingly difficult for Democrats to win elections, making it even harder for the actual work of progressive public policy to be undertaken.

Senate Democrats can pass the Act—if they place the protection of basic norms of democratic inclusion above the arcane Senate rules, none of them required by law, that allow a Republican filibuster to nullify a majority vote. Doing so will require a level of party unity that will be difficult to sustain, in the face of a relentless Republican propaganda campaign against “Democrat tyranny.”

An increasingly fragile constitutional democracy hangs in the balance.

Jeffrey C. Isaac is the James H. Rudy Professor of Political Science at Indiana University, Bloomington. Editor in Chief of Perspectives on Politics, a flagship journal of the American Political Science Association, from 2009-2017. Author of #AgainstTrump: Notes from Year One (2018), Professor Isaac has published in a range of public intellectual venues, including Public Seminar, Common Dreams, Dissent, the Nation, Los Angeles Review of Books, and the Guardian.

This post was originally published in the Democracy Seminar’s newsletter of March 17, 2021.