We must conclude with a troubling caveat, however. The norms sustaining our political system rested, to a considerable degree, on racial exclusion. The stability of the period between the end of Reconstruction and the 1980s was rooted in an original sin: the Compromise of 1877 and its aftermath, which permitted the de-democratization of the South and the consolidation of Jim Crow. Racial exclusion contributed directly to the partisan civility and cooperation that came to characterize twentieth-century American politics. The “solid South” emerged as a powerful conservative force within the Democratic Party, simultaneously vetoing civil rights and serving as a bridge to Republicans. Southern Democrats’ ideological proximity to conservative Republicans reduced polarization and facilitated bipartisanship. But it did so at the great cost of keeping civil rights—and America’s full democratization—off the political agenda.
America’s democratic norms, then, were born in a context of exclusion. As long as the political community was restricted largely to whites, Democrats and Republicans had much in common. Neither party was likely to view the other as an existential threat. The process of racial inclusion that began after World War II and culminated in the 1964 Civil Rights Act and 1965 Voting Rights Act would, at long last, fully democratize the United States. But it would also polarize it, posing the greatest challenge to established forms of mutual toleration and forbearance since Reconstruction.
7
The Unraveling
On the afternoon of Saturday, February 13, 2016, a San Antonio newspaper reported that Supreme Court Justice Antonin Scalia had died in his sleep while on a hunting trip in Texas. Social media erupted. Within minutes, a former Republican staffer and founder of the conservative legal publication The Federalist tweeted, “If Scalia has actually passed away, the Senate must refuse to confirm any justices in 2016 and leave the nomination to the next president.” Shortly afterward, the communications director for Republican senator Mike Lee tweeted, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia.” By early evening, Senate Majority Leader Mitch McConnell issued a statement sending his condolences to the Scalia family but also declaring, “This vacancy should not be filled until we have a new president.”
On March 16, 2016, President Barack Obama nominated appellate judge Merrick Garland to fill Scalia’s seat. No one doubted that Garland was a qualified candidate, and by all accounts he was an ideological moderate. But for the first time in American history, the U.S. Senate refused to even consider an elected president’s nominee for the Supreme Court. As we have seen, the Senate had always used forbearance in exercising its advice and consent in the selection of Supreme Court justices: Since 1866, every time a president had moved to fill a Supreme Court vacancy prior to the election of his successor, he had been allowed to do so.
But the world had changed by 2016. Now, in a radical departure from historical precedent Senate Republicans denied the president’s authority to nominate a new justice. It was an extraordinary instance of norm breaking. Within a year, a Republican was in the White House and Senate Republicans got their wish: a conservative justice nominee, Neil Gorsuch, whom they quickly approved. The GOP had trampled on a basic democratic norm—in effect, stealing a Supreme Court seat—and gotten away with it.
The traditions underpinning America’s democratic institutions are unraveling, opening up a disconcerting gap between how our political system works and long-standing expectations about how it ought to work. As our soft guardrails have weakened, we have grown increasingly vulnerable to antidemocratic leaders.
Donald Trump, a serial norm breaker, is widely (and correctly) criticized for assaulting America’s democratic norms. But the problem did not begin with Trump. The process of norm erosion started decades ago—long before Trump descended an escalator to announce his presidential candidacy.
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In a 1978 congressional race in northwestern Georgia, a young Newt Gingrich made his third bid for office in a district outside Atlanta. After two previous failed runs as a self-identified liberal Republican, he finally won—this time as a conservative, capturing a district that hadn’t been in Republican hands in 130 years. Gingrich’s bespectacled academic look (he had been a history professor at a local university), his chirpy speech, and his thick mop of hair and bushy sideburns belied a ruthlessness that would help transform American politics.
In June of his 1978 campaign, Gingrich had met with a group of College Republicans at an Atlanta Airport Holiday Inn, wooing them with a blunter, more cutthroat vision of politics than they were accustomed to. He found a hungry audience. Gingrich warned the young Republicans to stop using “Boy Scout words, which would be great around the campfire, but are lousy in politics.” He continued:
You’re fighting a war. It is a war for power….This party does not need another generation of cautious, prudent, careful, bland, irrelevant quasi-leaders….What we really need are people who are willing to stand up in a slug-fest….What’s the primary purpose of a political leader?…To build a majority.
When Gingrich arrived in Washington in 1979, his vision of politics as warfare was at odds with that of the Republican leadership. House Minority Leader Bob Michel, an amiable figure who carpooled home to Illinois for congressional recesses with his Democratic colleague Dan Rostenkowski, was committed to abiding by established norms of civility and bipartisan cooperation. Gingrich rejected this approach as too “soft.” Winning a Republican majority, Gingrich believed, would require playing a harder form of politics.
Backed by a small but growing group of loyalists, Gingrich launched an insurgency aimed at instilling a more combative approach in the party. Taking advantage of a new media technology, C-SPAN, Gingrich “used adjectives like rocks,” deliberately employing over-the-top rhetoric. He described Congress as “corrupt” and “sick.” He questioned his Democratic rivals’ patriotism. He even compared them to Mussolini and accused them of trying to “destroy our country.” According to former Georgia state Democratic Party leader Steve Anthony, “the things that came out of Gingrich’s mouth…we had never [heard] that before from either side. Gingrich went so far over the top that the shock factor rendered the opposition frozen for a few years.”
Through a new political action committee, GOPAC, Gingrich and his allies worked to spread these tactics across the party. GOPAC produced more than two thousand training audiotapes, distributed each month to get the recruits of Gingrich’s “Republican Revolution” on the same rhetorical page. Gingrich’s former press secretary Tony Blankley compared this tactic of audiotape distribution to one used by the Ayatollah Khomeini on his route to power in Iran. In the early 1990s, Gingrich and his team distributed memos to Republican candidates instructing them to use certain negative words to describe Democrats, including pathetic, sick, bizarre, betray, antiflag, antifamily, and traitors. It was the beginning of a seismic shift in American politics.
Even as Gingrich ascended the Republican leadership structure—becoming minority whip in 1989 and Speaker of the House in 1995—he refused to abandon his hard-line rhetoric. And rather than repelling the party, he pulled it to him. By the time he became Speaker, Gingrich was a role model to a new generation of Republican legislators, many of them elected in the 1994 landslide that gave the GOP its first House majority in forty years. The Senate was likewise transformed by the arrival of “Gingrich Senators,” whose ideology, aversion to compromise, and willingness to obstruct legislation helped speed the end of the body’s traditional “folkways.”
Though few realized it at the time, Gingrich and his allies were on the cusp of a new wave of polarization rooted in growing public discontent, particularly among the Republican base. Gingrich didn’t create this polarization, but he was one of the first Republicans to exploit the shift in popular sentiment. And his leadership helped to establish “politics as warfare” as the GOP’s dominant strategy. According to Democratic congressman Barney Frank, Gingrich
transfor
med American politics from one in which people presume the good will of their opponents, even as they disagreed, into one in which people treated the people with whom they disagreed as bad and immoral. He was a kind of McCarthyite who succeeded.
The Republicans’ new hardball approach was manifest during the presidency of Bill Clinton. In April 1993, four months into Clinton’s first term, Senate Minority Leader Robert Dole claimed that Clinton’s modest popular victory meant the traditional honeymoon period in which deference was given to a new president was not warranted, and so orchestrated a filibuster to block the president’s $16 billion job initiative. Filibuster use, which had already risen markedly in the 1980s and early 1990s, reached what one former senator described as “epidemic” levels during the first two years of the Clinton presidency. Before the 1970s, the annual number of cloture motions filed to end Senate debate—a good indicator of a filibuster attempt—never exceeded seven; by 1993–94, the number had reached eighty. Senate Republicans also pushed aggressively for investigations into a series of dubious scandals, most notably a Clinton 1980s land deal in Arkansas (the so-called Whitewater investigation). These efforts culminated in the 1994 appointment of Kenneth Starr as independent counsel. A shadow would linger over the entire Clinton presidency.
But the era of politics as warfare moved into full gear after the Republicans’ landslide 1994 election. With Gingrich now Speaker of the House, the GOP adopted a “no compromise” approach—a signal of ideological purity to the party base—that brazenly rejected forbearance in pursuit of victory by “any means necessary.” House Republicans refused to compromise, for example, in budget negotiations, leading to a five-day government shutdown in 1995 and a twenty-one-day shutdown in 1996. This was a dangerous turn. Without forebearance, checks and balances give way to deadlock and dysfunction.
The apogee of 1990s constitutional hardball was the December 1998 House vote to impeach President Clinton. Only the second presidential impeachment in U.S. history, the move ran afoul of long-established norms. The investigation, beginning with the dead-end Whitewater inquiry and ultimately centering on President Clinton’s testimony about an extramarital affair, never revealed anything approaching conventional standards for what constitute high crimes and misdemeanors. In the words of constitutional scholar Keith Whittington, the Republicans impeached Clinton “on a technicality.” The Republican House members also moved ahead with impeachment without bipartisan support, which meant that President Clinton would almost certainly not be convicted by the Senate (he was acquitted there in February 1999). In an act without precedent in U.S. history, House Republicans had politicized the impeachment process, downgrading it, in the words of congressional experts Thomas Mann and Norman Ornstein, to “just another weapon in the partisan wars.”
While Newt Gingrich may have led the initial assault on mutual toleration and forbearance, the descent into politics as warfare only accelerated after he left Congress in 1999. Although Gingrich was succeeded as Speaker by Dennis Hastert, the real power fell into the hands of House Majority Leader Tom DeLay. Nicknamed “the Hammer,” DeLay shared Gingrich’s partisan ruthlessness. He demonstrated this, in part, through the K Street Project, which packed lobbying firms with Republican operatives and instituted a pay-to-play system that rewarded lobbyists with legislation based on their support for GOP officeholders. Republican congressman Chris Shays described DeLay’s philosophy in blunt terms: “If it wasn’t illegal, do it.” The result was further norm erosion. “Time and time again,” one reporter observed, DeLay “has burst through the invisible fence that keeps other partisans in check.” DeLay brought routine norm breaking into the twenty-first century.
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On the evening of December 14, 2000, after Al Gore conceded the presidency to George W. Bush following a bitter postelection fight, Bush spoke to the country from the Texas House of Representatives. Having been introduced by the state’s Democratic House Speaker, Bush declared that he had chosen to speak from the Texas House
because it has been a home to bipartisan cooperation. Here in a place where Democrats have the majority, Republicans and Democrats have worked together to do what is right for the people we represent. The spirit of cooperation I have seen in this hall is what we need in Washington.
No such spirit materialized. Bush had promised to be a “uniter, not a divider,” but partisan warfare only intensified during his eight years in office. Just prior to Bush’s inauguration, DeLay gave the president-elect a reality check, reportedly telling him: “We don’t work with Democrats. There’ll be none of that uniter-divider stuff.”
President Bush governed hard to the right, abandoning all pretense of bipartisanship on the counsel of his political advisor Karl Rove, who had concluded that the electorate was so polarized that Republicans could win by mobilizing their own base rather than seeking independent voters. And with the exception of the aftermath of the September 11 attacks and subsequent military actions in Afghanistan and Iraq, congressional Democrats eschewed bipartisan cooperation in favor of obstruction. Harry Reid and other Senate leaders used Senate rules to slow down or block Republican legislation and broke with precedent by routinely filibustering Bush proposals they opposed.
If Democrats eschewed forbearance to obstruct the president, Republicans did so in order to protect him. In the House, the informal practice of “regular order,” which assured the minority party opportunities to speak and to amend legislation, was largely abandoned. The share of bills introduced under “closed rules” prohibiting amendments skyrocketed. As congressional observers Thomas Mann and Norman Ornstein put it, “long-standing norms of conduct in the House…were shredded for the larger goal of implementing the president’s program.” The GOP effectively abandoned oversight of a Republican president, weakening Congress’s ability to check the executive. Whereas the House had conducted 140 hours of sworn testimony investigating whether President Clinton had abused the White House Christmas card list in an effort to drum up new donors, it never once subpoenaed the White House during the first six years of George Bush’s presidency. Congress resisted oversight of the Iraq War, launching only superficial investigations into serious abuse cases, including the torture at the Abu Ghraib prison. The congressional watchdog became a lapdog, abdicating its institutional responsibilities.
Norm breaking was also evident at the state level. Among the most notorious cases was the 2003 Texas redistricting plan. Under the Constitution, state legislatures may modify congressional districts to maintain districts of equal population. However, there exists a long-standing and widely shared norm that redistricting should occur once a decade, immediately after publication of the census. This is with good reason: Because people move continuously, redistricting that occurs later in a decade will be based on less accurate population figures. Though there is no legal impediment to mid-decade redistricting, it has always been rare.
In 2003, Texas Republicans, led by House Majority Leader Tom DeLay, carried out a radical out-of-cycle redistrictin
g plan that, as they themselves admitted, aimed only at partisan advantage. Although the Texas electorate was increasingly Republican, seventeen of the state’s thirty-two representatives were Democrats, and many of them were entrenched incumbents. This mattered to national GOP leaders because Republicans held a narrow (229–204) majority in the House of Representatives. The Democrats only needed to win thirteen Republican seats in 2004 to recapture the House, so a swing of even a handful of seats would be decisive.
Under DeLay’s guidance, Texas Republicans drew up a redistricting plan designed to gerrymander African American and Latino voters into a small number of Democratic districts while adding Republican voters to the districts of white incumbent Democrats, thereby ensuring their defeat. The new map left six Democratic congressmen especially vulnerable. The plan was pure hardball. As one analyst posited, it “was as partisan as the Republicans thought the law would allow.”
It would take another audacious move to pass the Texas bill. The Texas House requires a quorum—the presence of two-thirds of its members—to vote on a bill. And Democrats had the votes to deny a quorum. So when the redistricting was brought to the floor in May 2003, the Democrats responded with an unusual maneuver of their own: Forty-seven state legislators boarded buses and drove to Ardmore, Oklahoma. They remained there for four days, until the House dropped the bill.
In response, Governor Rick Perry called a special session of the House in June, and because the Democrats were too exhausted to organize another walkout, the redistricting bill passed. The bill then moved to the state Senate, where the Democrats, following the precedent of their House colleagues, tried to thwart the bill in absentia by boarding a plane and flying to Albuquerque, New Mexico. They remained there for more than a month, until Senator John Whitmire (soon to be known as “Quitmire”) gave in and returned to Austin. When the bill finally passed, DeLay flew in from Washington to oversee the reconciliation process, which produced an even more radical redistricting plan. An aide to Republican congressman Joe Barton admitted in an e-mail that it was “the most aggressive map I have ever seen. This…should assure that Republicans keep the House no matter the national mood.” Indeed, the redistricting plan worked nearly to perfection. Six Texas congressional seats changed hands from Democrats to Republicans in 2004, helping to preserve Republican control of the House.