This blog post started as a video. You can see it here.
In the struggle to save democracy, there are some who insist that Democrats should “fight like Republicans.” This is sometimes framed as “Democrats are bringing a knife to a gunfight” or “you have to fight fire with fire” or “it’s time for hardball tactics.”
In left-leaning social media right now, lots of people are literally demanding that Democrats set aside rules and procedures and essentially imitate Trump and the Barr-DOJ.
I’ll start by defining the problem. I’ll explain why “fighting like Republicans” (or just behaving like Republicans) is a terrible idea, then I’ll tell you what does work and why.
The Problem
We need to talk about the problem, or the solutions won’t make sense.
Before the modern Civil Rights movement and women’s rights movements, we had democratic institutions, but they primarily protected White men. If you were Black you had almost no rights. If you were a White woman, you had limited rights. White men were in control of universities, governor mansions, industry, both political parties, and on and on. Through the hard work of people like Frederick Douglass, Susan B. Anthony, Thurgood Marshall, Charles Houston (too many others to name), we have been making the transition from a form of government ruled entirely by White men to a multi-racial democracy.
The pushback has been intense. (Spoiler: This isn’t new. The pushback has always been intense.)
We have a distance to go. As the backlash has heated up, the Republicans are willing to destroy and dismantle democratic institutions because those institutions no longer exclusively serve White men. You can see that in the fact that they are more worried about critical race theory than they are about a deadly virus.
To stop what they see as the growing threat of a multiracial democracy (and corresponding loss of power for White men, or wealthy White men) much of the Republican Party is coalescing around Donald Trump. Since the insurrection, Trump has consolidated his hold on the Republican Party, which is now (for all intents and purposes) the Party of Trump. The two most shocking examples illustrating what the Republican Party has become is (1) the party is largely embracing the dangerous lie that Trump won the election and (2) they are glorifying the insurrectionists.
Both of these things (embracing the lie that Trump won the election and glorifying the insurrectionists) lead to the same result: undermining rule of law.
One way to explain the difference now between the Republican and the Democratic Parties is to use Max Weber’s analysis of the sources of authority underlying government.
The first source of authority given by Max Weber is traditional. This is the authority underlying monarchies.
The second is legal-rational or rule of law. This is the kind of government that strives for fairness and it’s the form of authority we have in democracies. It strives for fairness but can never be completely fair. Why? Because there is always pushback and because the institutions of democracy consist of mere mortals. It’s also slow-moving. Spreading the power around means that nobody has too much of it. This makes it harder for an autocrat to take over, but it causes the wheels of government to move slowly.
The third is what Weber calls personal charisma. Today we’d say demagogue or strongman. This is the source of authority underlying dictatorships and fascist regimes. This form of government is based on lies and myths. It also has a lot of appeal. Autocracy moves swiftly. It’s fast-moving and thrilling. The purpose of government isn’t to help people–it’s to land blows on the enemy. Jason Stanley calls it the Politics of Us v. Them.
Doing battle with enemies is thrilling.
Ever since the old monarchies and empires broke down early in the 20th century, the struggle has been between strongman, or authoritarian forms of government, and democracies or rule of law.
The problem is obvious: The Republican Party has rejected rule of law and had embraced charismatic leader (Trump). If not Trump, then one of the other many Republican leaders who have learned to do it from Trump.
Most of us agree that this is a problem. However, we disagree on solutions.
No, Democrats Should Not Fight (or Behave) Like Republicans
I’m going to start with the conclusion from Harvard professors Ziblatt and Levitsky, the authors of How Democracies Die, who say this: “In our view, the idea that Democrats should “fight like Republicans” is misguided. First of all, evidence from other countries suggests that such a strategy often plays directly into the hands of authoritarians.”
That makes sense, right? The Republican Party is using hardball tactics. They are glorifying lawbreaking and insurrectionists. They disregard rules and laws. They do this because they don’t want to live in a rule of law government that is no longer serving their interests. They want to bring it all down.
People who want to save rule of law shouldn’t use the same tactics as those who want to destroy it. According to Professor Steven Levitsky, “The greatest danger to democracy is escalation.” He says: “Escalation rarely ends well.”
If both sides behave in ways that undermine the institutions, how can they possibly hold up?
This doesn’t mean that people should be passive or abandon vigorous opposition, but instead of destructive hardball tactics, Profs. Levitsky and David Pozen (Columbia Law School) recommend what Pozen calls “anti-hardball tactics.”
To take an example: Suppose the Republicans pass restrictive voter ID laws. Such laws will fall more heavily on lower-income communities, making it harder for them to vote. The anti-hardball response is to organize a massive drive to get everyone the correct I.D. or get a large enough majority in Congress to pass legislation that outlaws such tactics.
This is time-consuming and takes a lot of work, and people are impatient. They want action and they want results now.
Autocracy moves swiftly. It’s thrilling. Things happen and they happen fast. People on both sides live in a state of constant rage and anger. The Facebook whistleblower said: “It’s easier to inspire people to anger than it is to other emotions.”
A hardball tactic being currently demanding from much of left-leaning social media is that we jettison the usual procedures and move swiftly to imprison Trump and anyone who had a part in planning the insurrection. They want to see Trump in prison yesterday. The fact that the DOJ is clearly working its way up the ladder in bringing insurrectionists to justice (as of now, 674 have already been charged) and the Trump Org has been indicted, etc. etc., and these investigations are moving forward, people yell that the fact that Trump isn’t already in jail shows that the “system” is broken.
(Aside, people in jail don’t lose their First Amendment rights.)
Democracy and due process are dull and slow-moving. Complex investigations take time.
Consider how making it easier to imprison people would backfire. The whole point of due process is to slow things down.
For much of our history, criminal justice meant putting Black men in jail. The people who wanted to get as many Black men in jail as possible worked hard to speed up the process. They envisioned a conveyor belt. They largely succeeded, and as a result of the conveyor belt, the United States now has one of the largest per capita prison populations in the world. (This chart is a few years old. I used it in a book I published a few years ago, but you get the point.)
For the past 100 years or so, liberals have worked to reform the system by making it harder, not easier, to put people in jail. Criminal justice reformers spent years trying to change a conveyor belt into an obstacle course because the more places along the way to prevent an innocent Black man or victimized woman from being imprisoned, the more chances we had to keep them from going there (or get them out on appeal.)
Things have improved enormously, but the criminal justice system is still flawed because there’s a lot more work to do and because it’s run by human beings who don’t always make the best (or right) choices. No system can be perfect, but we want to push it in the right direction.
In autocracies, criminal justice is to put political dissenters in jail.
Criminal punishment is when the state (the government) deliberately inflicts pain. It must be done carefully and deliberately with obstacles in place.
There was a time, not long ago, when “justice” was carried out by mobs with pitchforks. (Lynching mobs). Remember those ugly chants in 2016 of “lock her up”? It was a mob reminiscent of lynching mobs that eagerly disregarded tiresome rules and procedures which they felt gave too many rights to the accused.
In an autocracy, the autocrat decides. In the days of lynching, the mob decided. Now the prosecutor decides. Prosecutorial discretion and prosecutorial independence are pillars of democracy. They stand between us and autocracy or mob rule.
If we act like autocrats, we guarantee that we will have an autocracy. Nobody will be defending rule of law. Both sides will be the same: Autocratic. Then there will be no hope at all.
I‘ll give you another example of left-leaning social media insisting that rules and norms be broken because it would bring them comfort: People think that Merrick Garland and the DOJ should keep them informed about the progress of investigations, and if the DOJ fails to keep them informed, it means no investigations are happening, even though we can see from 674 indictments in 7 months that things are happening. Reputable prosecutors never comment on ongoing investigations or allow information to leak. The last thing they want is suspects to know what stage the investigation is.
But people say things like this, “We saw the crimes on the news. Why aren’t there indictments?” It takes a lot of work to put together enough evidence to persuade a jury beyond a reasonable doubt. We don’t try and convict people in the news. The same people who once criticized Comey for violating the rules and talking about an ongoing investigation now insist that Merrick Garland do the same. “It’s different now!” They say. “We are impatient and stressed and want results now!”
(Merrick Garland was appointed seven months ago.)
A few things lead people to urge Democratic leaders to abandon procedures and rule of law and fight like Republicans: (1) They hold some form of the magic bullet theory or (2) they’re in a panic.
The Magic Bullet Theory
The magic bullet theory goes like this: If only X would happen, we could end the threat of fascism once and for all. The magic bullet theory always involves someone else doing something that will save democracy.
Right now, the select committee investigating the Jan. 6 insurrection is seen by many as the magic bullet. If they fail, nobody will be punished and our descent into fascism will be unstoppable.
Another magic bullet is if we put enough people in jail, Trumpism will crumble and the threat of fascism will go away.
We have a political problem: A dangerous percentage of Americans fully support Trump’s efforts to overturn the election and they believe (or assert) that Trump actually won. A dangerous percentage of Americans are looking at these guys as heroes and martyrs:
The criminal justice system cannot solve the political problem.
If you think that putting Trump in jail will cause these guys to say, “Well, looks like the law caught up to Trump. Let’s pack up. We should all go home and learn to love a multi-racial democracy.” It won’t happen. The political problem will remain. Hitler and Mussolini (and their henchmen) came to brutal ends but fascism returned. The problem is bigger and ongoing reaching back to the start of our nation.
Another example of people pushing the current government to act like Trump occurred last week when Twitter exploded with the fantasy that the people (like Bannon) who defied a subpoena should have been hauled to jail off the moment the deadline passed, even though the committee likely already had copies of the documents it was seeking, and even though they were not due to appear for depositions for about a week.
Some names said it would make quite a “statement” for the committee to make a criminal referral at the stroke of midnight.
Yes, that would have made quite a statement. It would have made for some great theater. It would have raised the temperature. But it would have been the wrong thing to do because Bannon hadn’t even failed yet to show up. But it would have been great theater.
Trump also provided great theater.
The problem is that when “news” becomes a show, what matters is who puts on the best show. There is no showman better than Trump.
Don’t try to out-fascist the fascists.
Panic
Another thing that leads people to want to jettison rule of law and democratic norms is panic.
In an emergency, the last thing you want to do is throw everybody into a panic. Even in the case of airplane accidents, a cool head can save lives. When you send soldiers into battle, you don’t shout at them “It’s all over! The battle is lost! The war is already lost! The other side cheats so effectively that we’re doomed!”
Panic might motivate people to action, but it’s usually a pointless action. Meaningful action takes thought and planning.
It seems to me that panic-mongering has a few sources:
- Some people sincerely believe that what’s vital is to tell people the “truth,” where the truth is that we’re a hair’s breadth away from slipping forever into autocracy unless X happens. They may feel they need to wake up people who aren’t paying attention, but the problem is that the people who are paying attention get inundated with this doomsday message, which creates panic. It also wears people out.
- Other people I’m sure have discovered that peddling panic and doom earns clicks. This includes headline writers for a few major media outlets. Everyone likes to be popular and I guarantee that “when X happens we are doomed,” will generate lots more clicks than “here’s what we can all do to save democracy.”
- Making people angry “The DOJ is failing us!” will generate clicks. Remember what the Facebook whistleblower said: It’s easy to stir people to anger.
- Some chaos agents include bad actors
What works
Because the Republicans are trying to destroy democratic institutions to create a strongman-form of government, the solution is to do the work to strengthen those institutions. Basically, the way to save democracy is with more democracy, or what Barack Obama calls “citizenship” — not more autocracy.
We look to people like Thurgood Marshall, Susan B. Anthony, Stacey Abrams, and others who set the example and taught us how.
A few ideas:
Run for office. Make sure things are done right. Be the person in charge. If you can’t, find a good candidate and do what you can to support that candidate.
Get involved with your local elections. This is particularly important because of the stress being put on the local election workers. Get involved with your school board. Again, this is important because of the stress being put on these school boards. In fact, find out who in your community is being attacked by radicalized right-wingers and offer what support you can.
Be a community organizer. If you have a talent for community organizing, do it.
One reason the Tea Party was successful was because they organized locally and put pressure on local officials. That’s what the Republican Party is doing now. They understand that politics is local.
Don’t say these things can’t be done because it’s hopeless.
This is getting long, so I’ll just refer you to a tab on my website called “things to do.” I think there is something for everyone. My list is here: