Virtue and Institutions

We can’t expect civic virtue to protect democracy from tyranny; instead, the institutional reform that Rick Pildes advocates is required.

Two Sundays ago, Governor Chris Sununu of New Hampshire appeared on ABC’s This Week and confirmed that he is supporting Donald Trump’s return to White House despite Trump’s responsibility for the insurrection at the Capitol on January 6, 2021. Sununu’s support of Trump was surprising to some because Sununu had been such a vocal critic of Trump during the 2022 midterms and during this year’s presidential primary campaign, when Sununu vigorously supported Nikki Haley as an alternative to Trump.

Sununu’s embrace of Trump was castigated by anti-Trump pundits as a hypocritical betrayal of political principles. In particular, Peter Wehner writing in The Atlantic characterized Sununu’s interview as demonstrating “how deep into the Republican Party the rot has gone.” Wehner, a veteran of three Republican administrations (including serving as a speechwriter for George W. Bush), lamented that Sununu’s desire to maintain his feasibility as an elected Republican politician caused him to abandon principle for party loyalty:

“It’s impossible to fully know the motivations of others, but it’s reasonable to assume that Sununu wants to maintain his political viability within the Republican Party. He’s undoubtedly aware that to break with Trump would derail his political ambitions. But for Sununu, like so many other Republicans, that partisan loyalty comes at the cost of his integrity.”

Wehner seems to wish that Sununu would have been able to summon the virtue to do the right thing and refuse to support Trump. He writes that Sununu “knows who Trump is, and what the right thing to do is—to declare, as Liz Cheney has done, that she will not vote for Donald Trump under any circumstances.” Wehner condemns Sununu for not having the same fortitude or courage as Cheney.

I share Wehner’s sentiments about Trump’s reprehensibility—and, most importantly, his danger to the Republic. I also immensely admire Cheney’s valiant efforts to do all that she can to protect the Republic from the threat that a second Trump term presents. Like Wehner, I also wish that Sununu would have acted like Cheney and announced a refusal to support his party’s presidential nominee.

But it is unrealistic to think that elected politicians interested in reelection or higher office will disavow the chosen leader of their tribe or team. Liz Cheney herself demonstrates the consequence of doing so. She was driven out of office and made a pariah by her party—as were others, like Adam Kinzinger.

Even those at the end of their careers who have no need to worry about future prospects, like Mitch McConnell and Bill Barr, are unable to break completely from Trump now that he has vanquished his opponents in the Republican presidential primaries. Partisanship in our current political culture is just that powerful. Thus, while disappointing, it’s unreasonable to expect Chris Sununu to break from his party the way Cheney did.

In his recent essay for the Washington Post (excerpted here), Robert Kagan does not place his faith in politicians. Instead, he hopes that enough ordinary citizens will summon sufficient civic virtue to vote against Trump this fall even if they share his views on economic and social policies. But he worries that they won’t. “How to explain their willingness to support Trump despite the risk he poses to our system of government? The answer,” he says, “is what the Founders worried about and Abraham Lincoln warned about: a decline in what they called public virtue.”

Kagan, like Wehner, see adherence to a kind of political morality as the only defense against protecting democracy from an authoritarian like Trump: “If the American system of government fails this year, it will not be because the institutions established by the Founders failed. It will not be because of … flaws in the Constitution. No system of government can protect against a determined tyrant. Only the people can.”

I think Kagan is profoundly mistaken in this claim. While it is true that a sufficient amount of civic virtue in the populace is essential for democracy to function, it does not follow that the set of “institutions established by the Founders”—or even the current “American system of government,” which is a significant modification of the Founders’ original design based on a series of transformations that have occurred over the past two-and-a-half centuries—is adequate given the amount of civic virtue that reasonably can be expected for the foreseeable future. Rather, while it is obviously too late to change our institutional structures before this year’s presidential election, and thus like Kagan we must hope that there is enough civic virtue to get us through this year, I would contend that our country needs significant institutional reforms in the near future in order to avoid repeated risks of losing our democracy to the authoritarian populist impulses within the body politic. Moreover, to contradict Kagan most directly, America would have been in much better position to withstand the threat of authoritarianism if certain key institutional reforms had been adopted in the aftermath of the January 6 insurrection.

Kagan enlists Madison in support of his opposite contention: “Although James Madison and his colleagues hoped to establish a government on the solid foundation of self-interest, even Madison acknowledged that no government by the people could be sustained if the people themselves did not have sufficient dedication to the liberal ideals of the Declaration.”  True enough. But, again, it does not follow from some degree of civic virtue being essential that no institutional reform is required, and Madison did not argue otherwise.

Instead, the entire premise of Madisonian political theory is that it is necessary to marry an appropriate institutional architecture of government to the degree of civic virtue that exists in society, among both the populace and the political elites. The more virtue there is, the less need for institutional checks and balances in order to achieve government in the public interest. Conversely, when there is a diminution in the degree of civic virtue, there is a concomitant need for institutional adjustment.

Over the course of his long career, Madison himself recognized the need for reform of the constitutional system that he and his fellow Founders created. He quickly knew that the premise of his Federalist essays—that the architecture of the new Constitution would prevent the formation of permanent political parties—was mistaken. Indeed, in 1792, he advocated on behalf of the new Jeffersonian party that he helped lead to counteract what he saw as the pernicious beliefs and programs of the Federalist party led by Adams and Hamilton. Later on, he recognized the deep “flaws” in the Constitution’s system of presidential elections and advocated amendments to that Electoral College system to make it more consonant with his evolving beliefs on how best to construct a “republican form of government” for the United States.

If we are to be faithful heirs of the Madisonian project of self-government, our task is not to keep our existing institutions intact and hope we can restore the degree of civic virtue necessary to make them work. Instead, our duty is to recalibrate the relationship between our political institutions and political culture so that they can once again operate in a Madisonian equilibrium that achieves the public interest to the greatest extent possible. This recalibration can consist pragmatically of an adjustment to our political institutions, or changes in our political culture, or both. It does not require keeping political institutions fixed and hoping solely for cultural change.

The problem that America faces today, in my judgment, is that over the last few decades we have lost the Madisonian equilibrium that we previously enjoyed. For a complicated combination of reasons—the decline of civics education, the fragmentation of media providing news and political commentary, economic globalization, and so forth—there has been a significant erosion of civic virtue, as Kagan correctly observes. Our existing political institutions are no longer up to the task, given the amount of civic virtue currently in society (even though those same institutions were good enough for several decades after World War II, when civic solidarity was at its historical highest in the U.S.).

The proper response to this problem is not only to attempt a recultivation of civic virtue, as valuable as that attempt may be. It also requires modifying our political institutions so that they are suitable for the kind of political culture we have now and can expect for the foreseeable future.

Currently, our political culture is characterized by severe partisan polarization, where both the Blue and Red teams view each other as the enemy and not just the loyal opposition. This emotional or “affective” polarization (to employ the political science term for the phenomenon) leads to the kind of extremist political behavior that occurred on January 6, 2021, as well as the ongoing extremist political rhetoric that has become even more prevalent since then.

Thus, the Madisonian challenge for the current period of American politics is to adjust our political institutions to counteract this intense partisan polarization. Some electoral systems are less polarizing than others. Or, to put the point another way, some electoral systems do not reward candidates who appeal to polarized “base” voters, but instead reward candidates who appeal to the broadest possible coalition of voters and endeavor to bridge the polarized divide. A good Madisonian in America today should strive for institutional reforms that adopt the latter types of electoral systems, because the currently dominant electoral system is regrettably one that magnifies rather than reduces the degree of polarization within the electorate.

This is why it especially troubling that most of the public commentary on America’s current political predicament fails to mention the possibility of institutional solutions. It’s not just Wehner and Kagan, wishing for greater virtue among politicians and the public. It’s also those, like Thomas Edsall, who decry the polarization that exists without proposing any remedy whatsoever.

In his latest column for The New York Times, Edsall offers one social scientist after another describing just how awful and intractable this polarization is. He quotes Rachel Kleinfeld, a leading scholar of political violence: “As people affectively polarize, they appear to blow out-group threats out of proportion, exaggerating the out-group’s dislike and disgust for their own group, and getting ready to defend their in-group, sometimes aggressively.” He quotes a paper authored by four other scholars for the proposition that so concerns Kagan: “when partisanship is strong, voters place party and policy goals over democratic values.”

Edsall also marshals the social science showing that affective polarization cannot be remedied through interventions aiming to change individual citizens’ views of the other party and its members, thus casting doubt on Kagan’s hope for an increase in civic virtue among voters. He quotes Lilliana Mason, one of the foremost scholars of affective polarization: “once we are polarized, it’s very difficult to use reason and logic to convince us to think otherwise.” Similarly, another scholar told Edsall: “The United States is stuck in this outrage spiral.”

But Edsall devotes essentially no attention to the possibility that alternative electoral institutions could counteract the effect of partisan polarization. There is a brief parenthetical reference in one of the passages he quotes to “removing gerrymandering,” but otherwise there is no discussion of structural reforms that would mitigate the influence of authoritarian extremism in contemporary American politics. Indeed, Edsall concludes his column on the utterly pessimistic note that “as long as Trump is the Republican nominee for president and as long as the prospect of a majority-minority country continues to propel right-wing populism, the odds of reducing the bitter animosity that now characterizes American politics remain slim.”

The failure of such important public intellectuals as Wehner, Kagan, and Edsall to consider the necessity of institutional solutions to America’s current predicament is why the work of Rick Pildes, my election law colleague, is so important. Rick is at the forefront of an effort to identify and advocate for institutional reforms that would better protect—and improve the performance of—American democracy.

Rick’s work in this vein can be found in several places. One is a column he wrote for the New York Times shortly after the January 6 insurrection. Another is a chapter he’s written for a forthcoming anthology of essays. But his most important contribution on this topic, in my opinion, is the Dunwody lecture he gave at the University of Florida last week. The video of the lecture is available, and I encourage everyone who hasn’t seen it to take the time to do so.

In the lecture, Rick offers five specific institutional reforms that would reduce the risk of political extremists capturing power undeservedly and, having done so, taking actions to undo the procedures and protections of democracy. At the outset, Rick observes—correctly in my view—that extremism threatens democracy not because a majority of Americans want extremists to exercise power, but instead because existing electoral institutions disproportionately magnify the extent to which Americans hold extremist views and enable extremists to win office even when a majority of voters would prefer candidates who are not extremists.

Rick’s lecture discusses the five specific institutional reforms in the order of importance, as he sees it, given the goal of combatting extremism.  They are: (1) nonpartisan primaries; (2) suitably designed forms of “instant runoff voting” (or “ranked choice voting,” depending on which terminology one prefers); (3) redistricting that elevates the importance of competitive legislative districts; (4) rethinking campaign finance regulation to favor political parties rather than individual donors; and (5) changes to the presidential nomination process.

I share Rick’s views on the ordering of priorities. Like him, I think changing the way we conduct primary elections, so that we move from partisan to nonpartisan primaries, is the highest priority in the effort to combat extremism and the threat it presents to democracy. That is why the kind of reform effort currently underway in Arizona this year is so important.

Like Rick, I also believe that moving away from the current practice of plurality-winner elections, where one can win without a majority of votes, to some form of majority-winner system is an essential corollary to the adoption of nonpartisan primaries. While I might phrase this particular reform somewhat differently than Rick, so that it encompasses the kind of “top three” system that I’ve developed with Eric Maskin as well as forms of ranked-choice voting that comply with the same Common Ground Democracy (or, to be technical, Condorcet) principles, the substance of what Rick and I think on this point is essentially the same.

I too share Rick’s values about the importance of competitive legislative districts and how best to structure campaign finance reform.  I am more agnostic about his proposals for reforming presidential nominations, but as that’s the last of his five priorities, there’s no need here to dwell upon its details and what might be offered as an alternative.

The most important point, in my judgment, is for the public conversation about American politics and government to be reoriented in the way that Rick indicates. We should be considering and debating these institutional ideas. We should be focusing on these kinds of institutional remedies as the way to redress the cultural pathology of hyper-polarization.

We don’t have to abandon attempts to improve civic virtue, and we especially need not give up hope and succumb to the kind of despair that characterizes Edsall’s writings on this topic.

Instead, we need to make persistent progress along the path that Rick illuminates. Doing so will help bring about conditions that will make it easier to achieve greater civic virtue, which in turn will make it easier to adopt even more institutional reform—which then will enable an even greater increase in civic virtue. It’s an upward spiral, instead of the downward spiral we’ve been in the last few decades. If successful, we will get back into Madisonian equilibrium where we have the right kind of political institutions for the amount of civic virtue in society.

If we get to that point, we won’t have to worry about elected politicians like Chris Sununu favoring party over country. In the kind of electoral system that Rick and I envision, Sununu’s incentives would be entirely different from those in the existing system. There would be no partisan primary to worry about, and the majority-winner rules for the general election would incentivize candidates who appeal to the electorate’s median voter rather than those who appeal to a polarized partisan base.

Likewise, with these reforms in place, there would be no need to worry—as Kagan does—that voters will vote their self-interest rather than the public good. As long as the segment of society that favors authoritarianism remains below fifty percent, as is likely to remain true, authoritarians would be unable to prevail even if their support derives from self-interest rather than civic virtue. Trump has a chance of winning this year, much to Kagan’s dismay, not because a majority of Americans would prefer him to Nikki Haley, but because the system of partisan primaries prevented Americans from having a choice between two non-authoritarian alternatives: Haley or Biden.

To be sure, we have to survive this year before we can start down the positive path that Rick’s Dunwody lecture outlines for us. Let’s hope it’s not too late.