Norms and Institutions
The Defense of Marriage Act (DOMA) became law in 1996. It refused to recognize same-sex marriages at the federal level and allowed states to ignore marriage contracts between same-sex couples from other states. The law was never repealed, but was effectively overturned after the Supreme Court Decision Obergefell v. Hodges in 2015. DOMA portrayed same-sex marriage as a threat to the institution. Of course, today same-sex marriage is legal in the United States and the institution has survived.
Marriage remains an important institution in modern liberal democracies. It continues to evolve from a patriarchal institution into a partnership between social equals. Nonetheless, some conservatives like Ryszard Legutko have viewed this transformation as an institutional threat. These conservative critics mistakenly believe norms define institutions. They fail to recognize how institutions evolve and change over time. The adoption of monogamy represented a radical change in marital norms for many cultures. But it did not destroy the institution. Indeed, most of us believe monogamy strengthens marriage. Nonetheless, marriage shows how malleable institutions can become as they adapt to new cultural norms over time.
What are Norms?
Norms involve rules that guide behaviors. Typically norms describe unwritten rules people follow based on cultural expectations. Over time norms can become codified into law. Prohibitions against murder and theft reinforce widely accepted social norms. But a law is not necessarily a norm. For example, few drivers in the United States obey the speed limit. They usually drive five miles per hour over the speed limit. This is a cultural norm that defies the written law. In some cultures tax evasion is a widely practiced norm with disastrous consequences for public revenue. Norms recognize the rules that govern actual behaviors. Society enforces them through shame, ridicule, and reputation. Cancel culture is an aggressive approach to the enforcement of new cultural norms. Laws have formal punishments, while norms have social repercussions.
Unlike laws, nobody decrees social norms. They develop and evolve over time and follow cultural attitudes and traditions. They are a reflection of ideas and opinions rather than their consequence. As a result, norms more easily rely on biases and prejudices, because they do not involve reasoned arguments. Instead, they depend on the natural inclinations within the society or a subgroup. Norms do change alongside ideas and opinions, but not always through reasoned arguments and debates. Rather they reflect our underlying sensibilities almost like a mirror.
Codification of Norms into Law
Political institutions rely on norms even more than formal laws. Steven Levitsky and Daniel Ziblatt made the erosion of democratic norms central to their bestseller How Democracies Die. But norms play an important role in both authoritarian and democratic regimes. Laws often codify established political norms such as rules for political succession. Most monarchies established lines of political succession before they became codified into law. A challenge for modern authoritarian regimes today is the lack of norms for political succession. An advantage of democracy is its clear process for political succession and legitimacy. Autocracy abandoned its tradition of norms for succession and legitimacy through the decline of monarchy. Nonetheless, authoritarian regimes look for ways to establish methods for political succession rather than normalize coups or rebellions.
The codification of norms into law makes them less adaptable as situations and circumstances change. Laws force the hands of political elites, while norms allow for the appeal to reason to revise traditions as circumstances change. Moreover, the rigidity of law allows for the manipulation of rules that defy their spirit even when they follow the letter. Mitch McConnell, for example, has defied many democratic norms in his legalistic interpretation of Senate rules. He uses the language of the rules as permission to use tactics previous generations would have frowned upon. The formality of law gives the impression anything left legal is permissible. Norms have greater ambiguity, so technicalities do not serve as justifications. But at the same time it is easier to simply break norms. Both political parties have found polarization makes the cost to break democratic norms less than the advantages they obtain.
Democratic Norms in Danger
Some have disregarded the assault on democratic norms as nothing new. They claim political parties always approach politics through a partisan lens. Moreover, new norms will replace the ones politicians disregard. Others believe informal rules carry little weight. They believe institutional design is the proper remedy to realign incentives in the political process. These perspectives fail to examine political science through a sociological lens. Every institution is its own unique context for behavior and relationships. Norms shape the behaviors and relationships within the context of Congress or a political party. Now Levitsky and Ziblatt specifically refer to the loss of democratic norms. Too many pundits and analysts take American democracy for granted. New norms will arise to replace democratic norms, but they may not reflect democratic values. Polarization risks the transformation of American political institutions into something undemocratic.
Brief History of the Filibuster
The filibuster offers a fascinating example of how norms change in political institutions. During Jefferson’s Presidency, Aaron Burr rewrote Senatorial rules for debate. A side effect of his changes made the filibuster possible, although this was not his intent. That said, it was rarely used throughout the nineteenth century, but remarkably allowed just a single senator to hold legislation hostage. The Senate introduced cloture in 1917 as a way to limit the power of the filibuster and end debate through a 2/3 supermajority.
The Senate further reduced cloture to 60 votes in the 70s and reduced the ability of the filibuster to prevent Senate business through the introduction of a two-track system. This meant Senators could filibuster without interfering with other Senate business. It reduced the impact of the filibuster, but also reduced the costs of its use. Previously the filibuster held up all Senate business and held the chamber hostage from conducting any business. As the filibuster became easier to control, its use gradually increased. Legislation routinely passed with simple majorities in the fifties and sixties despite higher thresholds for cloture. Moreover, simple majority votes in the Senate encouraged greater bipartisanship, because Senators had greater incentives to influence the final legislation.
Expansion of the Filibuster
The more common adoption of the filibuster makes it easier for Senators to vote against legislation rather than look for opportunities for agreement. In this way, the supermajoritarian nature of the filibuster reduces bipartisanship through the creation of an asymmetrical relationship that advantages the opposition. Many Senators such as Joe Manchin defend the filibuster as a tool for compromise, but its history tells a very different legislative experience. Nonetheless, the filibuster is not simply a consequence of institutional design. Political polarization has made partisan politics more aggressive so political parties have taken advantage of the new incentives. But the changes did not have an immediate effect. The filibuster did not become more widely adopted until the eighties and nineties. Moreover, the recent changes in the filibuster regarding judicial appointments and reconciliation should have changed legislative behavior, but it hasn’t.
Filibuster as an Evolving Norm
The filibuster is a story of changing political norms even more than the effects of institutional designs. Senators choose to use the filibuster. They have accepted the sixty vote threshold as a reasonable bar to pass legislation. Moreover, the Republican Party has embraced a nihilistic approach to governance where the inability to govern has become a virtue rather than a vice. In theory, the filibuster is neither as devious or as virtuous as commentators pretend. The filibuster has the potential to stall legislation to encourage compromise.
An aggressively majoritarian chamber is not necessarily a paragon of democratic virtue either. Viktor Orbán in Hungary has shown how a parliamentary supermajority in a polarized political environment runs roughshod over its competition and works to entrench themselves and their policies into the government. But the political environment in the United States has made congressional elections almost inconsequential and stalled legislation permanently thanks to the additional impediment of the filibuster. A tool like the filibuster only makes sense in an environment where political parties show restraint. Its overuse is not simply a consequence of institutional incentives, but the norms which determine those incentives. Most importantly, the electoral consequences from the filibuster’s overuse never happened.
Crossing the Rubicon
Of course, politicians have found ways to break, redefine, or ignore political norms throughout history. The most famous example occurred when Julius Caesar crossed the Rubicon with his army into Rome in 49 BCE. The toxic political environment in Rome gave Caesar reservations when the Senate commanded him to disband his army and return to the city. It is widely believed they intended to arrest Caesar. The crossing of the Rubicon brought about the Roman Civil War where Caesar emerged victorious. But his decision broke a longstanding political norm where generals did not bring their armies into Rome. The consequences led to the breakdown of the Roman Republic and the establishment of an imperial empire.
Elections have developed a common set of norms in the West, but demonstrate how different norms can shape institutions in different cultures. Politicians routinely buy votes in African elections through clientelistic networks. But Nic Cheeseman, Gabrielle Lynch, and Justin Willis have shown the complexities of this norm. A candidate cannot pay too much for a vote nor can an incumbent ignore their constituents until the next campaign. The relationship is not simply transactional. It involves a long-term investment in the community. Indeed, Africans have a wide range of unwritten rules for the purchase of votes. Moreover, these rules change in different countries and even different communities. Nonetheless, clientelism is a real problem for African democracy. Still, it represents a more complex web of problems involving the institution of elections and political norms.
Competitive authoritarianism shows how political norms can turn elections into authoritarian institutions. Some scholars have dismissed competitive authoritarianism, because the regime type includes competitive elections. But competitive elections are not necessarily free nor fair. The opposition has an opportunity to win elections, but the playing field is heavily tilted against them. Competitive authoritarian regimes do not manipulate vote counts directly, but shape the conditions to ensure the reelection of incumbents. Nonetheless, they have red lines that allow for a transfer of power when the opposition overcomes the impediments they place along the way. Some common tools of competitive authoritarian regimes include limited ballot access for candidates or parties, unfair access to the media, and gerrymandered legislative districts. Incumbents shape the conditions for elections to encourage high turnout from their supporters and suppress the turnout of the opposition.
A competitive authoritarian regime weaponizes the law as a tool to win elections, but elected officials do not govern undemocratically due to institutional design. Rather political norms allow them to make laws to entrench their party in power. Milan Svolik has shown how polarization leads voters to choose an ideologically preferred candidate even when they govern democratically. But I take his analysis a step further. Voters who value a preferred public policy over a democratic process will favor laws to ensure their ideas become law. Indeed, they will support undemocratic behavior that puts their preferred policies in place and keeps out the opposition. Republicans in America have begun to support efforts to restrict opportunities to vote already. Few of them oppose democracy or elections. Most believe new laws will limit voter fraud, but they also entrench their ideas into law.
Let me be clear: I don’t like to call institutions democratic or authoritarian. Many “democratic” institutions evolved under autocratic forms of government like monarchy. Likewise, authoritarian regimes have coopted institutions like elections and legislative assemblies into their own political systems. Of course, the presence of institutions like elections and assemblies is always a positive step. The introduction of these institutions makes possible further reform and liberalization. They represent steps in the right direction. Nonetheless, their democratic character depends on their political norms. Even the law itself is irrelevant when real political power is arbitrary. The law is just another institution and the respect for codified rules is a norm subject to cultural adaptation. Some cultures ignore the written law, while others obey some but not others. Constitutions, likewise, have no authority when elites treat it as irrelevant.
In the end, norms shape institutions. Democracy depends more on the norms of its institutions than the institutions themselves. Norms even determine whether citizens obey the laws or enforce the constitution. So often power depends on informal channels especially in authoritarian political environments. Indeed, the shift away from democracy often involves a shift in norms towards more informal channels of political power and authority rather than the destruction of institutions. The Roman Senate survived the Roman Republic. Perhaps the American constitution could survive beyond American democracy. None of this is pleasant to imagine. As Larry Diamond puts it, “Death occurs step by step, through the steady degradation of political pluralism, civil liberties, and the rule of law, until the Rubicon has been crossed as if in a fog, without our knowing the precise moment when it happened.”
A Few Sources
Larry Diamond (2020), “Breaking Out of the Democratic Slump,” Journal of Democracy
Brian Klaas and Nic Cheeseman (2018), How to Rig an Election
Ryszard Legutko (2016), The Demon in Democracy: Totalitarian Temptations in Free Societies
Steven Levitsky and Daniel Ziblatt (2018), How Democracies Die
Milan Svolik (2020), “When Polarization Trumps Civic Virtue: Partisan Conflict and the Subversion of Democracy by Incumbents,” Quarterly Journal of Political Science