Democratic Backsliding: From Capitol Hill to Caracas

(Photo: African Democratic Institute)

By Sophie Moseley – Contributor

America, still the ‘shining city on the hill’? Its enduring self-exceptionalism would have us believe so, yet the fragility of its democracy tells us rather a different story. In fact, the Economist Intelligence Democracy Index downgraded its status from ‘full democracy’ to a ‘flawed democracy’ in 2019, which is its lowest global democracy score since its creation, at an alarming 5.44 out of 10.

So, what is the reason for this sudden decline? One could argue that it is not sudden at all, but the culmination of a phenomenon known as ‘democratic backsliding’. Democratic backsliding is the term used to describe the process in which an elected official or party, usually a ‘strong man’ candidate, tries to diminish the organisations created to check their power and keep the country a functioning democracy. These organisations are the checks and balances within the executive office itself, the free press and the judiciary, to name a few. A country which employs checks and balances in order to hold its leaders accountable is nothing unusual but their fragility is rarely mentioned, perhaps a somewhat accurate example of the phrase, ‘The only thing necessary for the triumph of evil is for good men to do nothing.’

The Free press

If you remove an independent media, what replaces it? Well the short answer is propaganda.

See, if you remove all those hard-hitting journalists who write without a blatant political agenda, the state will pick up the flack. And in no uncertain terms, this will lead to your once educated public being told what to think, what to listen to and what to fear. Now this may sound rather like a quote from the novel 1984, a radical view of a dystopian future which would surely never happen, yet that is the mastery of democratic backsliding -it happens in the background while your attention is turned away. The first move of Venezuela’s once democratic leader HugoChávez was to denounce the press as the ‘enemy of the people’ and subtly chip away at their power. By 2007, he had eroded their ability to critique the actions of political figures, shut down objective news organisations and imprisoned journalists at will. Venezuela acts perhaps like our canary in the mine, a grave demonstration of the result of democratic backsliding. If the once most stable Latin American democracy can have its freedom eroded within two presidents can’t the same happen anywhere? Even before Trump’s win of 2016, he blasted any news source which dared criticise his conduct, for instance in his attacks of Fox News’s Megyn Kelly, when she questioned him on his treatment of women. He scorned her questions and suggested her critique were not a question of his character but a side effect of her gender, implying she ‘had blood coming out of her eyes, blood coming out of her wherever’, a rather ironic defence against his accused misogyny. Trumps disgust of Kelly’s critique trickled down to his base, the primary viewership of the channel, and led to a harsh backlash against them and Kelly herself. The channel was then forced to walk back any critical coverage of Trump in a bid to keep its viewers, despite the fact its owner, Rupert Murdoch, previously slated Trumps treatment of immigrants, being of Australian origin himself. Yet Trump’s treatment of his ally’s pales in comparison to those he calls ‘fake news’, whom he has identified as ‘the mainstream media’, in particular focussing on the like of CNN, ABC news, The New York Times and various others, who he regularly denies the ability to ask questions, or even access White House press briefings, and then insults them even if they manage to question him. To their credit, these news stations have largely attempted to remain professional and treat his outbursts as credible stories, however this is in fact having a detrimental effect, by raising the Overton window. The Overton window is a term coined by Joseph P Overton, explaining how we tolerate a certain group of ideas within a ‘window’, with everything outside this ‘window’ being deemed radical or extreme. The knock-on effect of treating outlandish stories as newsworthy is that it repeats the exposure of these stories and forces the audience to consider the ideas raised and so moves the window further into the extreme. This follows the idea that a bias media is both the result and a contributor of democratic backsliding, as a leader feeds off a bias press and contributes to its bias and normalisation of extreme politics. This phenomenon is not isolated to the Western hemisphere, with alarmingly restrictive laws appearing in Eastern Europe, where the ruling Polish party (Populist Law and Justice Party) recently passed a sweeping media law, which removed the previously independent Tv broadcasters and replaced them with state approved journalists, effectively ridding Poland of a free and independent televised news source. Whilst the reduction in independent journalism has not been overtly commented on, a hallmark of democratic backsliding, Freedom House has calculated the freedom of 16 democratic states and has concluded that we have seen a reduction of 19%. The ability to dissent or question a leader’s decisions is intrinsic to a healthy democracy and without information being relatively free of political agenda, public consent is manufactured and so the legitimacy of governance is called very much into question.

The Judiciary

The Judiciary is the core of accountability, casting a watchful eye upon all within the society it governs. Rather in keeping with the liberal idea of a social contract between a state and its citizen the same idea surrounds our relationship with the law; we give our consent to live by its rules in exchange for its benefits.

Judicial neutrality is the idea that a judge can hear a case without political bias and interest in its outcome, and whilst it may be impossible to find someone without any shred of a personal view, there is a difference between a judge having an unconscious bias and being appointed for a certain role due to their political ideology. The relevance of such appointments becomes clearer when a controversial leader is in office and their decisions are placed under more scrutiny. For instance, President Trump’s infamous separation policy, which removed migrants from their children on border entry, was blocked by the Ninth Circuit Court of Appeals. This appeal was then rejected by the Trump administration and heard by the Supreme Court which sided with the president at a ruling of 5 to 4, Justice Sonia Sotomayor denounced the ruling carried by her conservative colleagues, which she referred to as ‘no better than Korematsu v. United states’ which allowed the internment of Japanese- Americans in World War 2. A friendly judiciary cannot fairly regulate the legality of a leader’s actions, it can even enable vast changes in a countries political structure. A rather ugly symptom of democratic backsliding. For instance, President Maduro of Venezuela redirected power from the traditional legislative body, the ‘National Assembly’, to the newly established ‘National Constituent Assembly’. Not only did the new chamber only house representatives from Maduro’s party, but it was also charged with redrafting the country’s constitution. In effect he had eroded the once dominate and democratic power of the National Assembly, with 167 representatives, with an echo chamber and further shuffling it towards a one-party state. This desire for structural change in order to enable controversial legislation is beginning to take root in European politics, with the ruling Polish party PiS attempting to purge the countries independent judges. The government attempted a forced retirement programme, but this move was blocked by the EU court in Luxembourg, which denounced the move as undemocratic.

The PiS merely see the EU ruling as an over-arch of its powers and see no need to change its ideas as the deputy justice minister candidly admitted “To heal the situation in the judiciary, it is necessary to limit the number of official positions, reorganise the courts, and limit their jurisdiction”. When a leader decides the jurisdiction of the judiciary, they effectively decide what they can be judged on, no leader deserves that power as it would inevitably be abused. Democratic backsliding takes advantage of a democracies short fallings and exploits them, for instance the appointment of American Appeals Judges is reliant on both parties working together. When a president appoints a nominee, they have to be confirmed by a Senate vote, which usually means that the two parties must be in agreement, or the appointment is not passed. Although when Republicans gained the majority of senate seats in 2014 the majority leader, Mitch McConnell, issued a ban on any appointments which included President Obama’s Supreme Court nominee. This resulted in a substantial amount of vacancies to be filled by the Trump administration, a feat which Trump referred to as a ‘big, beautiful present’. Trump’s nominees were decidedly more conservative than previous Presidents, with a few causing harsh backlash over their nominations due to their past remarks on issues such as abortion law and gay marriage. These extreme judges would not normally be appointed with such a negative reaction, yet the Republican majority within the Senate passed the nominees without cross party approval. For instance, the nominee for the Ninth Circuit Court was not approved of by either of Californian senators, highlighting a huge disconnect between the states ideology and the judge appointed to serve them. The Ninth Circuit Court of Appeals has been overwhelmed with 10 new nominees, perhaps in an effort to change its liberal leanings, which Trump once referred to as a ‘thorn in our side’. Trump has in fact appointed more district level judges in his tenure then any previous modern president. This huge increase was commented upon by Senate Majority Leader Mitch McConnell, ‘We’re making a generational change in our country that will be repeated over and over and over down through the years’. He paints a rather bleak picture that Trumps presidency may leave behind a legacy of biased courts and an artificially conservative leaning within the justice system.

The American conservative party, known as the Republicans, are key proponents of democratic backsliding, yet their actions are rarely met with much scrutiny. President Obama’s re-election in 2012 saw the Republicans gain majority in the House of Representatives, which in effect gave them ultimate control within the chamber despite their lack of presidential support. They took partisanship to several rather dramatic deadlocks – for example the refusal to confirm Obama’s choice of Supreme Court justice, which despite being unprecedented, was treated as normal practise, due to McConnell insisting the judgeship could not be filled until a new President had been elected, despite the fact this so-called tradition was a lie. McConnell also oversaw a deep division between the two parties, with the Republicans stonewalling virtually every bill the Democrats presented to the floor, highlighting a rather ugly partisan divide in US politics, destabilising their ability to negotiate and thus functionality as a democratic state. Venezuela fall into autocracy is no longer debated but now an alarming reality with its once celebrated president penning a new constitution to rid his people of liberties despite public outcry and shortages of simple goods, with the World Food Programme finding 9.3 million people are ‘food insecure’. Poland’s extreme ruling party continue to push forward sweeping powers despite attempts from the EU to temper their more overt power grabs they remain unswayed from their objectives. Democratic backsliding is a rather unspoken being in our political sphere, but its existence is growing and despite its stealthy nature, its knock-on effects could be dire. For proponents of democracy, now is not the time to be silent on this issue, and as cases of democratic backsliding are increasing all around the world, the institutions of political freedom must be protected, before it is too late.

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