A Fix to Anti-democratic Laws That Republicans Won’t Like
Guest Post by David Pepper
Almost a century ago, Justice Louis Brandeis extolled states as “Laboratories of Democracy.” His theory, echoed by others over the years, was that states can serve as petri dishes of reform that serve democracy and the common good. And if one state proves out a good idea, other states, or even the federal government, can model their own policies after that initial success. They can learn from that initial attempt to make the next effort more fruitful.
Brandeis’s positive vision for states has indeed played out over the years. Whether New Deal policies of the 1930s or the Affordable Care Act of the Obama era, successful reforms emerging from states have gone on to become national policy. Marriage equality also gained momentum as a state-by-state effort, ultimately sweeping across the nation.
So Brandeis was right.
What if the opposite is also true?
Or, what if Brandeis was more right about states’ potential role than he even imagined?
What if the same powers and levers wielded by states and statehouses that enable them to impact national policy for the good were harnessed to undermine democracy? What if lawmakers enacted anti-democratic laws in one state, and those were effective in achieving their goal? Would other states with similar intentions model their own laws on the prior state’s example? Could that also work?
Unfortunately, the answer is a resounding and disturbing yes. Brandeis’ vision can indeed be turned on its head, then unleashed to do deep harm to democracy.
It’s happening right now.
More bleakly, it’s been happening for a generation. And that state-by-state movement—where statehouses have come to serve as veritable “laboratories of autocracy”—has built such momentum and grown so coordinated that it amounts to one the greatest threats to American democracy in our nation’s history.
To look more deeply at what’s happening, it’s important to understand the two broader sides in today’s politics. And the divide is not what most think it is.
Most Americans perceive democracy as relatively stable, and within that frame of intact democracy, conceive of American politics as a series of elections, largely at the federal level. The Presidency, Senate and House offer the big prizes that garner most of the attention. Other offices like Governor also get some attention, but often because they tell us what might happen in those federal elections.
But the anchor of this frame of politics is that democracy is assumed to be stable. So winning federal elections is the key to success, allowing the winning side to implement the substantive goals it desires.
But there is another side that sees politics very differently. Critically, some groups understand that the policies they seek are generally unpopular, and would not survive long in a world of robust, intact democracy. Whether those policies be trickle-down economics that leave most Americans out, extreme social policies that are opposed by a majority or supermajority of the electorate, or the historic desire for white-dominated governance in an ever more diverse majority—this side understands that its worldview is mired in minority status. As I write in Laboratories of Autocracy, or as Jane Mayer writes in Dark Money, they acknowledge this reality explicitly. As such, they understand that robust democracy itself is inconsistent with the long-term, sustained fulfilment of their agenda.
And that keen-eyed understanding shapes their view of politics. It is not a battle to win elections in a robust democracy, because over time, that would surely be a losing battle.
No, their battle is to undermine democracy itself, the essential pre-condition for the long-term success of their agenda.
And what is the strategy to win that battle against democracy?
Simple: target the places that define and shape the heart of our democracy, then use those levers of power to undermine democracy more broadly. And in the United States, those places do not reside in the federal government—at least not primarily. Those places turn out to be the states, and predominantly statehouses.
Just ask Brandeis. Among the many things that statehouses control beyond countless substantive issues Americans care about, statehouses also wield enormous power to shape America’s democracy itself. For example, they play a major role in setting the rules over the conduct of elections, state and federal, which also can shape who votes in these elections. They wield the power to draw their own legislative districts, as well as those for Congress, which can impact outcomes as well as the level of democratic accountability. And they allocate the electors who determine the President of the United States.
So statehouses not only control much of the substantive agenda in American politics, but they wield powers that can be used to secure or lift democracy…..or to undermine it.
So statehouses not only control much of the substantive agenda in American politics, but they wield powers that can be used to secure or lift democracy…..or to undermine it.David Pepper
And one other benefit of states: it turns out that state-level politics are a far easier place to wage political battles, because there is little attention paid to statehouses across the country. The media within states is deeply weakened. National media, like most in politics, pay far more attention to Washington. Statehouse elections and activity are mere snowballs amid an avalanche of federal news.
Even better, politics at the state level turn out not to be a cyclical series of elections on an even playing field. Because of statehouse tools such as gerrymandering and voter suppression, politics gets easier at the state level the further you go. Once this side locks up a state, seizing power over that state’s own democracy, it becomes ever harder for the other side to seize it back. A single big victory soon amounts to permanent control.
Understanding the immense power these states exercise over democracy itself, and their relative anonymity, this side has focused vast political resources in the statehouses and all the accompanying state offices that can bolster (or undermine) their work. And because any state can strike a blow against democracy, this side doesn’t limit its battle to a narrow field of “swing states” that determine federal majorities. It battles in ALL 50 states, and it does so whenever there are elections at any level that might impact democracy. Which is, in the end, every year.
And fully consistent with the Brandeis model, this side treats these states as laboratories. Always trying new things—always replicating successes—always learning from failures or setbacks. Creating private mechanisms that coordinate and even direct all these states’ efforts.
Counter to much of the media narrative, this all began long before the “Big Lie,” and even before Trump came to power. And that’s why we are now seeing an explosion of disturbing far-right policies—voter suppression, attacks on courts and elections officers, defiance of constitutional provisions, book bans, and so on. It’s not new, but a continuation of years of experimentation and learning from and among these “laboratories.”
Common sense dictates that if one side continues to focus on politics as about federal elections, but the other continues its state-based battle with scant organized or well-funded opposition, the side attacking democracy is always on offense. Always making gains, which then secure future gains. Always winning.
So until the broader majority of Americans who value democracy see the attacks on democracy for what they are—and understand that rigged statehouses are the institutions lying at the heart of that attack—none of this will change.
Coming to terms with the true nature of the battle we are in—that 2022 politics involve a battle over democracy itself, and it’s a battle that begins in the states—should compel a reformulation of the strategies being pursued by those fighting for democracy. After all, it’s a far larger and more complex battle that the other side has been engaged in for decades.
First, reframe the length of the battle. It is a long one, playing out year after year. Progress in that battle can come independent of the ups and downs of individual federal cycles, although those are certainly important. Those battling for democracy must plan for that long battle, play the long game for democracy, and measure success accordingly. The way women suffragists did, or civil rights heroes. Or Stacey Abrams in Georgia, who made and saw progress in both good years and bad.
Second, because it’s a battle for democracy, engage the battle where it is. And that is in the states. All 50 of them. Not just “swing” areas, but everywhere. Giving up on all but “swing areas” allows those attacking democracy to be forever locking in the gains they make. If you’re playing a short game, then “swing states” are all that matter. In a “long game,” not contesting seats everywhere is a disaster.
And engage it when it is. Which is every year, somewhere.
And engage it all all levels that impact democracy, which includes statehouse seats, as well as countless other offices that play some role in the process of shaping democracy.
The new frame also leads to a critical shift in how the pro-democracy side perceives the opposition. This battle is far bigger than the “Never-Trump” lens. The attacks on democracy preceded him, and will outlast him. These undemocratic statehouses could ultimately benefit a figure far more savvy and disciplined than Trump. And just because someone doesn’t sound at all like or even support Trump, that doesn’t mean they’re for democracy. So we let them off the hook if we size people up through the narrow lens of Trump—which leads to lauding people who are attacking democracy just as fiercely as Trump is, if more politely. The key question is, do they support democracy, or don’t they? If they do, welcome to the battle (and we can hash out any other differences later).
In short, on all fronts, do what the other side has been doing for decades. And re-allocate the massive amount of resources, energy and time that have been fueling the federal/swing-state/cyclical strategy to this re-conceived and broader battle for democracy. Knowing how big the stakes are, go ahead and add more resources, energy and time to the deeper cause.
And every victory you strike for democracy, at any level, every year, immediately convert that foothold into that old Brandeis term — a “laboratory of democracy”—passing laws and measures and utilizing executive powers to engage communities in the democratic process, and lift especially those voters who have been victims of the attacks on democracy. Then learn from those successes and repeat them. Then keep going, and going, and going.
Long game. Battle it everywhere. Unite around democracy. From every step of progress, fight for democracy. Keep building.
I go through far more details of the actions we all can and must take in my book, Laboratories of Autocracy, but it’s imperative that at the highest levels, those who care for democracy make the broader shift in framework. Join the battle in the states. Make them Laboratories of Democracy. And do so immediately.
Failure, truly, is not an option.