Thursday, December 22, 2022

The Slide Toward Autocracy Began Long Ago (a Dorf on Law Classic)

Note to readers: Beginning today and running through the end of 2022, we here at Dorf on Law will be on our annual December hiatus, as part of which we will re-publish "classic columns" that strike us as relevant and useful reading for those among us who continue to want to engage with ideas over the holidays.  We will, as always, keep our eyes out for breaking news that could inspire and justify writing a new column between now and the 1st, but otherwise, we will be recharging our batteries and wishing all of you the best.


by Neil H. Buchanan

The column below was first published on August 6, 2009 -- less than three years after the birth of Dorf on Law.  Upon re-reading it, I was depressed anew at how obvious the slide toward authoritarianism has been all along -- long preceding Donald Trump's time in the White House -- and how much worse things have gotten only in degree, but not in kind.

In the magazine business, what editors call a "big sentence" (a sentence from the text that is reprinted in large print as an inset in the text) would almost certainly have included these two:

"Still, there is strong reason to worry that we are seeing a new kind of politics that puts the lie to any notion of democracy in this country"; and [continued after the jump]

"In the face of the possible success of such unprecedented and damaging tactics, however, it is ever more difficult to believe that those who have neither a convincing message nor strong public support must inevitably lose."

Enjoy?

 

From Optimism to Pessimism to Despondency?

It is hard to imagine that anyone would seriously claim that the current public "discussion" about the Democrats' health care reform proposals -- or, for that matter, the public discussion of virtually any issue -- is productive. With loud, angry opposition to the plan being lavishly financed and deployed in public meetings throughout the country, as well as grotesque lies being promulgated daily (killing old people?), it is nearly impossible to believe that the merits of the actual proposals will determine the outcome of this legislative battle.

But is the current situation unique, or does this look bad only by comparison to some misty Good Old Days that never existed? I fear that we have, indeed, reached a new low point, and that we have in fact begun to rip the fabric of some important norms, perhaps beyond repair.

One of the most shocking things about the Bush era was the frequency with which the party then in office would simply exercise raw power without restraint. I occasionally likened it to people who would ignore ropes designed to allow people to queue up efficiently, but that analogy was far too genteel. It was often more like seeing someone kick down a door on the theory that there were no cops around -- and even if the cops were to arrive, there would be no consequences, because the malefactors could outnumber and outmaneuver those who would try to enforce mere laws.

The most extreme example of this phenomenon actually never happened, but it was chilling to learn recently about Dick Cheney's proposal to have the military engage in law enforcement activities within the country's borders (specifically, to arrest a suspected terrorist cell in Buffalo). He proposed this plan, apparently, just to prove that it could happen and thus that old restraints were no longer operative. While we can be grateful that others within the administration concluded that this was beyond the pale, warrantless wiretapping was not. Exposing covert CIA operatives for political gain was not. Suppressing estimates of the cost of the Medicare drug benefit program, and lying about the costs to Congress, was not. Torturing people was not. Using federal prosecutors to jail political opponents was not.

In each of these cases, the response to the arrival of "the cops" was instructive. Intimidation, rationalization, and power politics allowed every such transgression of previously accepted norms to go virtually unpunished. Congress (including the current president) made a few noises but ultimately did nothing, and (in the case of at least one prominent issue) it even provided ex post changes in the law to allow and legitimate violations of previously settled law and norms.

And the public at large generally went along with all of this. Although it was in some sense historic that an incumbent president won re-election by the slimmest of margins, he still won in a way that allowed his supporters to say that he had finally won without stealing the election. (The evidence about the possible theft of the 2004 election is much stronger than is generally appreciated, but the very fact that people are willing to look the other way about that is itself part of the phenomenon under discussion here.) Even in the face of blatant evidence of incompetence, dishonesty, and outright lawlessness, over half the electorate said, "Four more years."

The current situation is arguably worse. The public overwhelmingly supports reform of health care, and support for a public option in health care is strong. While I have argued recently (here and here) that the public option should be dropped for reasons of political reality, I am clearly in the minority. The public hates the current system and wants at least the choice of a non-profit health insurance plan. The president and his party won election by large margins only 9 months ago, campaigning in large measure on this very issue.

It is true that the currently bleak prospects for real reform can be blamed to significant degrees on strategic errors, such as the president's futile commitment to bipartisanship in an environment where he has no willing dance partners. Still, there is strong reason to worry that we are seeing a new kind of politics that puts the lie to any notion of democracy in this country. Highly financed opposition to change seems to be succeeding in a campaign of disinformation and delay, and it is quite possible that they will succeed not only in defeating health care reform but in then portraying that defeat (with the compliance of the press) as the effective end of the Obama presidency.

If that comes to pass, what can be done? Organize and win elections?

Regular readers of this blog know that I am prone to swings from optimism to pessimism, with pessimism usually winning the tug of war. Of course, no matter how despondent one might become, the fight must go on. In the face of the possible success of such unprecedented and damaging tactics, however, it is ever more difficult to believe that those who have neither a convincing message nor strong public support must inevitably lose. Time for a new dose of hope.

-- Posted by Neil H. Buchanan

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