How Democracies Die

by Steven Levitsky

  It is worth noting that the Supreme Court itself played a major role in defeating Roosevelt’s plan. In a move that has been described as a “masterly retreat” to preserve the Supreme Court’s integrity, the previously anti–New Deal Court quickly reversed itself on a series of decisions. In spring 1937, the Court ruled in quick succession in favor of several pieces of New Deal legislation, including the National Labor Relations Act and Roosevelt’s Social Security legislation. With the New Deal program on more secure constitutional ground, liberal Democrats in Congress could more easily oppose the president’s Court plan. In July 1937, it died in the Senate. The president, at the peak of his popularity and power, strained against the limits of his constitutional authority and was blocked. Never again would an American president try to pack the Supreme Court.

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  Norms of forbearance also operate in Congress. Take the U.S. Senate. As a body whose original purpose was to protect minorities from the power of majorities (which, the founders believed, would be represented by the House), the Senate was designed, from its inception, to allow deliberation. It developed a range of tools—many of them unwritten—that enabled legislative minorities, and even individual senators, to slow down or block projects put forth by the majority. Prior to 1917, the Senate lacked any rules limiting discussion, which meant that any senator could prevent a vote on (or “filibuster”) any legislation indefinitely by simply prolonging debate.

  These informal prerogatives are essential checks and balances, serving as both a source of protection for minority parties and a constraint on potentially overreaching presidents. Without forbearance, however, they could easily lead to gridlock and conflict. As political scientist Donald Matthews wrote:

  [Each senator] has vast power over the chamber’s rules. A single senator, for example, can slow the Senate almost to a halt by systematically objecting to all unanimous consent requests. A few, by exercising their right to filibuster, can block the passage of all bills.

  For most of American history, such dysfunction did not occur, in part because prevailing norms discouraged senators from overusing their political authority. As Matthews observed, although tools such as the filibuster “exist as a potential threat, the amazing thing is that they are rarely used. The spirit of reciprocity results in much, if not most, of the senators’ actual power not being exercised.”

  Matthews’s seminal study of the U.S. Senate during the late 1950s highlights how informal norms, or what he called “folkways,” helped the institution function. Two of these folkways are closely associated with forbearance: courtesy and reciprocity. Courtesy meant, first and foremost, avoiding personal or embarrassing attacks on fellow senators. The cardinal rule, Matthews observed, was for senators to not let “political disagreements influence personal feelings.” This was difficult, for, as one senator put it, “it is hard not to call a man a liar when you know he is one.” But senators viewed courtesy as critical to their success, since, as one senator put it, “your enemies on one issue may be your friends on the next.” In the words of another senator, political self-preservation “dictates at least a semblance of friendship. And then before you know it, you really are friends.”

  Norms of reciprocity entailed restraint in the use of one’s power so as not to overly antagonize other senators and endanger future cooperation. In his study, Matthews concludes, “If a senator does push his formal power to the limit, he has broken the implicit bargain and can expect, not cooperation from his colleagues, but only retaliation in kind,” making legislative work much more difficult. As one senator described the norm, “It’s not a matter of friendship; it’s just a matter of, ‘I won’t be an S.O.B. if you won’t be one.’ ”

  No institutional tool illustrates the importance of these norms more clearly than the filibuster. Prior to 1917, again, any senator could obstruct legislation by using a filibuster to delay a vote indefinitely. Yet this rarely happened. Though available to any senator, at any time, most senators treated the filibuster as a “procedural weapon of last resort.” According to one count, only twenty-three manifest filibusters occurred during the entire nineteenth century. A modest increase in filibuster use in the early twentieth century gave rise to the 1917 cloture rule, by which two-thirds (now three-fifths) of the Senate could vote to end debate. But even then, only thirty filibusters occurred between 1880 and 1917, according to political scientists Sarah Binder and Steven Smith. Filibuster use remained low through the late 1960s—in fact, between 1917 and 1959, the Senate saw an average of only one per congressional term.

  Another congressional prerogative central to the system of checks and balances is the Senate’s power of “advice and consent” over presidential appointments to the Supreme Court and other key positions. Though stipulated in the Constitution, the actual scope of the Senate’s advice and consent role is open to interpretation and debate. In theory, the Senate could block presidents from appointing any of their preferred cabinet members or justices—an act that, though nominally constitutional, would hobble the government. This has not happened, in part, because of an established Senate norm of deferring to presidents to fill their cabinets and open Supreme Court seats. Only nine presidential cabinet nominations were blocked between 1800 and 2005; when the Senate blocked Calvin Coolidge’s attorney general pick in 1925, Coolidge angrily accused the Senate of violating an “unbroken practice of three generations permitting the president to choose his own cabinet.”

  The Senate has always reserved the right to reject individual Supreme Court nominees. Even President Washington had a nomination blocked in 1795. But the Senate has historically been judicious in the use of this right. Between 1880 and 1980, more than 90 percent of Supreme Court nominees were approved, and only three presidents—Grover Cleveland, Herbert Hoover, and Richard Nixon—had nominees rejected. Highly qualified nominees were invariably approved even when senators disagreed with them ideologically. The ultraconservative Antonin Scalia, a Reagan appointee, was approved in 1986 by a vote of 98 to 0, despite the fact that the Democrats had more than enough votes (47) to filibuster.

  Whether or not individual nominees are approved, the Senate has long accepted the president’s ultimate authority to appoint justices. In the 150-year span between 1866 and 2016, the Senate never once prevented the president from filling a Supreme Court seat. On seventy-four occasions during this period, presidents attempted to fill Court vacancies prior to the election of their successor. And on all seventy-four occasions—though not always on the first try—they were allowed to do so.

  Finally, one of the most potentially explosive prerogatives granted to Congress by the Constitution is the power to remove a sitting president via impeachment. This, British scholar James Bryce noted more than a century ago, is “the heaviest piece of artillery in the congressional arsenal.” But, Bryce continued, “because it is so heavy, it is unfit for ordinary use.” If deployed casually, constitutional scholar Keith Whittington warns, impeachment can become a “partisan tool for undermining electoral officials and overturning electoral results.”

  This is precisely what happened, as we have already noted, in Paraguay in 2012 with the two-day “quickie” impeachment of Fernando Lugo, and in Ecuador in 1997 with the removal of Abdalá Bucaram on bogus grounds of “mental incapacity.” In these cases, impeachment was weaponized—the leaders of congress used it to remove a president they didn’t like.

  In theory, American presidents could suffer Lugo’s or Bucaram’s fate. The legal barriers to impeachment in the United States are actually quite low. Constitutionally, it only takes a simple majority in the House of Representatives. Although the conviction and removal of a president requires a two-thirds vote in the Senate, impeachment without conviction is still a traumatic event that can weaken presidents to the point of political impotence—as occurred with Andrew Johnson after 1868.

  Unlike in Paraguay or Ecuador, however, impeachment in the United States has long been governed by norms of forbearance. Constitutional sc
holar Mark Tushnet describes the norm: “The House of Representatives should not aggressively carry out an impeachment unless…there is a reasonable probability that the impeachment will result in the target’s removal from office.” Since removal requires a two-thirds vote in the Senate, this means that impeachment should have at least some bipartisan support. After Johnson’s impeachment in 1868, there were no serious congressional efforts to impeach the president until the Nixon scandal more than a century later.

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  America’s system of checks and balances worked in the twentieth century because it was embedded in robust norms of mutual toleration and forbearance. This is not to say that America ever experienced an unadulterated golden age, where some variant of the gentlemanly Queensberry boxing rules of good sportsmanship governed the country’s politics. At various points, democratic norms have been challenged and even violated. Three such incidents are worth noting.

  One we have already explored: Roosevelt’s unprecedented concentration of executive power during the Great Depression and World War II. Beyond the court-packing attempt, Roosevelt’s reliance on unilateral action posed a serious challenge to traditional checks and balances. His use of executive orders—more than 3,000 during his presidency, averaging more than 300 a year—was unmatched at the time or since. His decision to seek a third (and later a fourth) term in office shattered a nearly 150-year-old norm restricting the president to two terms.

  Roosevelt’s presidency never slid into autocracy, however. There are many reasons for this, but one of them is that many of Roosevelt’s executive excesses triggered bipartisan resistance. The court-packing scheme was rejected by both parties, and although Roosevelt destroyed the unwritten rule limiting presidents to two terms in office, support for the old norm was so strong that in 1947, less than two years after his death, a bipartisan coalition in Congress passed the Twenty-Second Amendment, which enshrined it in the Constitution. The guardrails were tested during the Roosevelt era, but they held.

  McCarthyism posed the second significant challenge to America’s institutions, threatening norms of mutual toleration in the early 1950s. The rise of communism scared many Americans, particularly after the Soviet Union emerged as a nuclear superpower in the late 1940s. Anticommunist hysteria could be harnessed for partisan ends: Politicians could red-bait, or seek votes by casting their opponents as communists or communist sympathizers.

  Between 1946 and 1954, anticommunism found its way into partisan politics. The advent of the Cold War had created a frenzy over national security, and the Republican Party, which had been out of national power for nearly twenty years, was searching desperately for a new electoral appeal.

  Wisconsin senator Joseph McCarthy found such an appeal. First elected to the Senate in 1947, McCarthy took the national stage on February 9, 1950, with an infamous speech in front of the Ohio County Republican Women’s Club in Wheeling, West Virginia. McCarthy ranted against communism and the presence of “traitors” within, and then stumbled onto a line that instantly became iconic: “I have here in my hand a list of 205 names that were made known to the Secretary of State and who nevertheless are still working and shaping the policy of the State Department.” The reaction was immediate. The press went wild. McCarthy, a demagogue who loved the attention, began repeating the speech, realizing he had hit upon a political gold mine. Democrats were outraged. Moderate Republicans were alarmed, but conservative Republicans saw the potential political benefits and supported McCarthy. Republican senator Robert Taft passed on the message, “Keep talking.” Three days later, McCarthy sent a wire to President Truman that said, “Pick up your phone and ask [Secretary of State Dean] Acheson how many Communists he failed to discharge….Failure on your part will label the Democratic Party of being the bedfellow of international Communism.”

  Red-baiting became a common tactic among Republican candidates in the early 1950s. Richard Nixon deployed it in his 1950 Senate campaign, vilifying his Democratic rival, Helen Gahagan Douglas, as the “Pink Lady,” who “follows the Communist line.” In Florida, Republican George Smathers unleashed a vicious campaign to defeat incumbent Claude Pepper, labeling his Democratic rival “Red Pepper.”

  By the time of the 1952 presidential race, it was clear that McCarthy’s virulent anticommunism was a useful club with which to beat Democrats. McCarthy was called in to speak in races across the country. Even moderate Republican presidential candidate Dwight Eisenhower, though ambivalent about McCarthy, relied on the political energy he generated. McCarthy repeatedly impugned Democratic candidate Adlai Stevenson as a traitor, intentionally confusing his name with that of accused Soviet spy Alger Hiss. Eisenhower initially resisted joint appearances with McCarthy, but at the insistence of the Republican National Committee, the two men campaigned together in Wisconsin a month before the election.

  The McCarthyite assault on mutual toleration peaked in 1952. With Eisenhower installed in the White House, Republican leaders found McCarthy’s tactics less useful. And McCarthy’s attacks on the Eisenhower administration and, especially, on the U.S. Army, left him disgraced. The turning point came in the live-televised 1954 Army–McCarthy hearings in which McCarthy was humbled by Army chief counsel Joseph Welch, who responded to McCarthy’s baseless accusations by saying, “Have you no sense of decency, sir? At long last, have you left no sense of decency?” McCarthy’s popularity declined, and six months later the Senate voted to censure him, effectively ending his career.

  McCarthy’s fall discredited the practice of red-baiting, giving rise to a new pejorative label: “McCarthyism.” After 1954, few Republicans so overtly employed the tactic, and those who did were criticized. Even Nixon, always pragmatic, began to reconsider his use of McCarthyite rhetoric. According to a biographer, even the vice president “was at pains to acknowledge the loyalty of the Democratic Party” during his 1956 reelection campaign. Although groups such as the extremist John Birch Society “kept the McCarthyist spirit alive,” they operated at the Republican Party’s fringes. But norms of mutual toleration remained intact within the dominant factions of both parties until late in the twentieth century.

  The third notable test of America’s democratic institutions was the authoritarian behavior of the Nixon administration. Despite his public gestures toward it in the 1950s, Nixon never fully embraced norms of mutual toleration. He viewed public opponents and the press as enemies, and he and his staff justified illicit activities with the claim that their domestic opponents—often depicted as anarchists and communists—posed a threat to the nation or the constitutional order. In ordering H. R. Haldeman to organize a break-in at the Brookings Institution in 1971 (an act that was never carried out), Nixon told his aide, “We’re up against an enemy, a conspiracy. We’re using any means….Is that clear?” Likewise, Watergate conspirator G. Gordon Liddy justified the 1972 break-in of the Democratic National Committee headquarters by claiming that the White House was “at war, internally as well as externally.”

  The Nixon administration’s path away from democratic norms began with widespread wiretapping and other surveillance of journalists, opposition activists, the Democratic National Committee, and prominent Democrats such as Senator Edward Kennedy. In November 1970, Nixon sent a memo to Haldeman ordering him to compile a list of the administration’s opponents to develop an “intelligence program…to take them on.” Hundreds of names, including “dozens of Democrats,” made the list. The administration also deployed the Internal Revenue Service as a political weapon, auditing such key opponents as National Democratic Committee Chair Larry O’Brien. Most prominent, however, was Nixon’s campaign to sabotage his Democratic rivals in the 1972 election, which culminated in the botched Watergate break-in.

  As is well known, Nixon’s criminal assault on democratic institutions was contained. In February 1973, the Senate established a bipartisan Select Committee on Presidential Campaign Activities, chaired by Democratic senator Sam Ervin of North Carolina. The Ervin committee was bipartisan: Its vice
chair, Tennessee Republican Howard Baker, described its mission as a “bipartisan search for the unvarnished truth.” As the committee began its work, nearly a dozen Republican senators joined Democrats in calling for an independent special prosecutor. Archibald Cox was named in May. By mid-1973, investigations were closing in on Nixon. Senate hearings revealed the existence of secret White House tapes that could implicate the president. Cox requested that Nixon release the tapes—a demand that was echoed by leaders of both parties. Nixon played hardball, refusing to turn over the tapes and eventually firing Cox, but to no avail.

  The move triggered widespread calls for Nixon’s resignation, and the House Judiciary Committee, chaired by New Jersey representative Peter Rodino, took initial steps toward impeachment proceedings. On July 24, 1974, the Supreme Court ruled that Nixon must turn over the tapes. By then, Rodino had sufficient Republican support on the Judiciary Committee to move ahead with impeachment. Although Nixon held out hope that he could muster up the 34 Republican votes needed to avoid a Senate conviction, Senate Republicans sent Barry Goldwater to inform him of the inevitability of impeachment. When Nixon asked Goldwater how many votes he had, Goldwater reportedly replied, “Ten at most, maybe less.” Two days later, Nixon resigned. Due in part to bipartisan cooperation, Congress and the courts had checked the abuse of presidential power.

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  America’s democratic institutions were challenged on several occasions during the twentieth century, but each of these challenges was effectively contained. The guardrails held, as politicians from both parties—and often, society as a whole—pushed back against violations that might have threatened democracy. As a result, episodes of intolerance and partisan warfare never escalated into the kind of “death spiral” that destroyed democracies in Europe in the 1930s and Latin America in the 1960s and 1970s.