Can “Procedural Extremism” Save Democracy?

3 October 2018


Since the election of Donald Trump in 2016, a common narrative to explain the state of American democracy has been the story of “norm erosion.” The premise of this narrative is the (correct) notion that maintaining a democratic government requires not only the written rules of the law and the constitution, but also a number of unwritten rules or norms. These norms can include things from a minimum amount of respect or civility between citizens and officials, to non-legal procedures like how the Senate confirms a Supreme Court nominee, to basic commitments such as the rule of law itself. GOP leaders have shown willingness to upend these norms in past decades, particularly under the recent leadership of Mitch McConnell, who refused to hold a vote for Barack Obama’s nomination of Merrick Garland, and has used the filibuster and government shutdowns as ordinary political tools. Conservative media has also long played a leading role in undermining a sense of shared citizenship between opposing political camps. Still, many commentators have focused on Trump himself as the singular threat to democracy’s foundations. Trump’s impulsiveness, his quick recourse to insult, and his disregard for democratic values helped create the impression soon after he took office that all of a sudden, the underlying normative commitments of American democracy were in jeopardy.


If the central political problem of the Trump era is the erosion of democratic norms, the solution is not clear. A common tendency among media commentators appears to be simply a call for a reaffirmation of norms or values by responsible leaders. If honorable people from both parties can come together to express their commitment to the norms Trump and his allies have called into question, it is hoped, this can provide a foundation for a more stable post-Trump politics. There is often an uplifting moral tale that emerges from this discourse, a celebration of honorable men and women—in practice, usually Republicans that make some public stand against Trump, like James Comey or John McCain—who put principle and country before party. Though this sort of moral renewal may be something all citizens should ultimately hope for, it is conservative from a purely descriptive point of view: a call to restore the political norms of a lost past, however recent. In today’s discourse, this conservatism has most notably been embraced by centrists of both political persuasions, including moderate Democrats and “Never Trump” Republicans.


The current controversies over the nomination of Brett Kavanaugh to the Supreme Court have once again brought attention to the question of norms, and they have made this hope for moral renewal seem increasingly illusory. Soon after Anthony Kennedy’s announcement that he would retire, Kavanaugh originally appeared to many centrists concerned with norms as the best possible pick Trump could make. Kennedy’s handpicked successor met all of the traditional criteria for who ought to serve on the Court in terms of his credentials and judicial experience. What’s more, his respect for the fundamentals of our legal system, his honorable character, and indeed his commitment to women’s empowerment were quickly vouched for by experts and law professors across partisan lines. The credible sexual assault allegations against him, the spectacle of his testimony before the Senate last week, and the likelihood that Republicans will move to confirm him despite his apparent untruths, however, put to rest (or at least they ought to have) any hopes that democracy can be saved by putting more such “honorable men” in power. Kavanaugh’s nomination is not a break from either Trump’s aberrant rhetoric or McConnell’s dirty tricks, but rather a continuation.


Thinkers on the left have consistently been skeptical of the “norm erosion” narrative. Writers like Jedediah Purdy and Corey Robin, for example, have sought to highlight how seemingly neutral norms and procedures have consistently been “weaponized” throughout American history, or how democratic politics itself necessarily consists in the breaking, reshaping, and constructing of norms (see also the excellent Law and Political Economy blog on the question of the courts). But even such relatively radical views of history or the nature of politics aside—that is, even if one is fully committed to the idea of an impartial, nonpartisan judiciary or the preservation of key democratic norms across time—a growing consensus on the left of center today has begun to suspect that it is impossible under current conditions to conserve or return to the old norms of American politics. If Republicans have committed themselves to norm-eroding tactics, the liberal center-left cannot hope to counter them with compromise. The slogan “when they go low, we go high,” in the age of McConnell, Trump, and Kavanaugh, increasingly appears as an authorization simply for the other side to go low.


This insight has suggested an alternative solution, advocated by writers including Eric Levitz and Sean McElwee, in what has sometimes been called “procedural extremism.” Generally speaking, this refers to accepting the “weaponized” or “political” nature of institutional procedures, among other non-legal norms. Under a procedural extremist outlook, the preservation of unwritten rules is no longer valued for its own sake, and will often be knowingly sacrificed in the name of other political end. Procedural extremism is not the same as disregard for the law, but rather using the full extent of what is legally permissible. This can be seen as the opposite to what we might call “procedural conservatism,” which largely corresponds to the attitude of defending or re-establishing norms described above. The label of procedural extremism, its critics may rightly point out, is an apt one for politicians like McConnell (Trump, whose norm-breaking is largely rhetorical or suggested, is perhaps less of a candidate). But it also applies, for example, to Cory Booker’s decision to leak confidential emails relating to the Kavanaugh nomination, or Diane Feinstein’s bringing Christine Blasey Ford’s story to the public. Looking beyond the current Supreme Court fight, procedural extremism can also describe a range of proposals that David Faris articulates in his recent book It’s Time to Fight Dirty, including statehood for DC and Puerto Rico or breaking up populous left-leaning states like California into several states. Such proposals would make a world of sense for a Democratic Party seeking to shore up power in the Senate, but would apparently violate norms against making such momentous decisions about the institutional arrangement of the country for the sake immediate political gain.


But if America’s democratic norms risk being eroded away, wouldn’t a center-left embrace of procedural extremism merely hasten the coming of the end? Not necessarily. Faris suggests that such an approach can be made to be consistent with democratic aims. Procedural extremist tactics such as Puerto Rico statehood can be justified on the grounds that they are not only expedient for the party that seeks to enact them, but would genuinely increase the legitimacy of democratic representation in the United States.


The term “procedural extremism” was used at least as early as 1970 by Seymour Martin Lipset and Earl Raab in Politics of Unreason, a book about right-wing extremism in the United States. For them, the term referred less to the forms of extremism that fall under the label of “populism,” such as Father Coughlin or the Moral Majority, than to authoritarian or totalitarian movements that violated democratic principles on procedural rather—or in addition to—ideological grounds. In today’s world, the term has a rather different meaning as a deliberate political strategy for parties in a democracy rather than descriptions of political regimes. But Lipset and Raab were in a sense correct to seek to discuss it in the context of an upsurge of right-wing populism.


The procedural extremist outlook makes good democratic sense if one takes into account not only the steady eroding of democracy in recent decades—including not only the familiar element of the norm erosion story, but also the legal obstacles to voting and the principle of one person, one vote that exist and have been recently entrenched in many states—but also the current wave of movements to reinvest in the democratic process. One positive consequence of Trump’s election has been to spark an uptick in protest and associative activity (from the Women’s March to groups like Indivisible and the Democratic Socialists of America) as well as attention to normally overlooked state elections as well as the midterm elections for Congress. The ultimate takeaway of Alexandria Ocasio-Cortez’s victory in the Bronx and Queens may not be that socialist politics are a winning formula across the board, but it does signal that voters in general are demanding politicians that more accurately reflect the views and interests of their constituencies. Despite the many flaws of theorists such as Chantal Mouffe who advocate a left-wing populist strategy, which have been discussed on this blog, it seems clear that what she calls today’s “populist moment” represents a significant component of this desire for more democracy. Even the Trump phenomenon signals an urge, however misdirected, for government more accountable to its people. In the context of an erosion of democratic norms coinciding with the potential for democratic renewal—and the two may well be one and the same—a left embrace of procedural extremism may ensure that it is not only the right that gets to shape the democracy of the future.


Photo Credit: Office of the Vice President, Mike Pence, Brett Kavanaugh, Mitch McConnell, and Jon Kyl, via Wikimedia Commons, Public Domain.


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