Here are four things to know about these legislative moves.
1. Partisan, but not unprecedented, power grabs
In Wisconsin, lawmakers reduced the governor’s control over an economic development agency, limited his ability to alter federal waivers on health-care and food stamp laws, and stripped the attorney general of the power to withdraw from a lawsuit challenging the Affordable Care Act. In Michigan, lawmakers voted to transfer power over campaign finance from the secretary of state to a bipartisan commission, empowered themselves to defend state laws in court, and watered down minimum wage and paid sick time laws they had just passed in September to forestall a ballot initiative.
Democrats blasted the moves as nakedly partisan. Democratic candidates had swept elections for executive posts in both states, although Republicans held onto the legislatures. Some GOP leaders admitted they designed the proposals to lock in GOP policy gains and prevent incoming Democratic executives from fulfilling campaign promises.
But none of this is new. Lame-duck governing parties have often taken similar actions. President John Adams and the Federalists famously expanded the court system, shrank the Supreme Court and appointed judges just weeks before Thomas Jefferson took office. More recently, legislatures in both North Carolina (in 1989) and Alabama (in 1999) stripped the lieutenant governor’s power to influence the legislative agenda. Most outgoing modern presidential administrations issue last-minute regulations, and most presidents issue lame-duck pardons.
2. You can play constitutional hardball without breaking norms
About 15 years ago, legal scholar Mark Tushnet introduced a concept called “constitutional hardball”: when political figures disregard norms of fair play and push the rules as far as they can to win within the letter, but not the spirit, of the law. For example, when Senate Majority Leader Mitch McConnell (R-Ky.) refused to hold hearings on Merrick Garland, President Barack Obama’s Supreme Court nominee, that was technically the Senate’s prerogative — but it was a sharp break from normal practice.
Critics are treating the Wisconsin and Michigan legislatures’ moves as “constitutional hardball” because they seem designed to nullify the election, protecting Republican power.
But sometimes hardball politics are the norm. Pressing the rules for full partisan advantage has long been part of democracy. For example, gerrymandering by partisan majorities is the norm.
State legislative parties have threatened to lock chambers, hidden bill jackets to prevent action, and fled states to prevent quorums in response to mid-decade partisan gerrymandering efforts. That might violate good government ideals — but it’s not new. You might even call it normal state legislative politics.
Considered individually, almost nothing happening now in Wisconsin or Michigan is unprecedented or even uncommon. Partisans have always played hardball; outgoing majorities do slimy things.
3. Some caution is still in order
But let’s examine the differences among the Michigan and Wisconsin proposals.
For instance, the Michigan legislature’s effort to prevent a voter initiative is nothing new. Elected officials around the country introduce dozens of measures a year to alter or overturn initiatives, from Utah to the District.
Okay, so how about partisan efforts to strip incoming executives of their powers? That’s not as common, but it isn’t unprecedented. Civil War-era Republicans famously stripped Andrew Johnson of the power to remove Cabinet officials, then impeached him when he did. They also altered the size of the Supreme Court three times: from seven to 10 to install an anti-slavery court; back to seven to stop the Democrat Johnson from making any appointments; then back to nine once Republican Ulysses S. Grant took office. More recently, Massachusetts stripped then-Gov. Mitt Romney of the power to appoint senators to vacant seats; five years later, they restored it for a Democratic governor.
And while the Michigan legislature may seem vindictive in transferring the secretary of state’s power over campaign finance to a bipartisan commission, that’s not new either — and it might have nonpartisan results. For example, the federal civil service system gradually expanded in the 19th century as partisan lawmakers tried to protect their own patronage appointees.
More problematic are changes to electoral rules, including the Wisconsin legislature’s effort to reduce early voting, separate a state Supreme Court election date from the presidential primary and codify voter ID requirements. Some of this hardball stays well within policy norms. Many states still have no early voting. And moving local elections from on or off the state or federal elections day is common practice in many states.
What’s more troubling is when partisans pursue changes that appear designed to reduce turnout, thereby undermining the very premise of democracy. Such efforts are reminiscent of racial voter suppression, from historical poll taxes and literacy tests to contemporary disparities in poll location availability and wait times to vote. And those are a continuing stain on U.S. democracy.
4. Yes, Republicans are playing more hardball lately than Democrats
Law professors Joseph Fishkin and David Pozen have identified a pattern they’re calling asymmetric hardball: The Republican Party has increasingly resorted to hardball tactics to maintain power, more than the Democratic Party has. Wisconsin and Michigan’s efforts echo similarly problematic Republican actions in North Carolina in 2016 after Democrats won the governorship.
Fundamentally, it’s that asymmetry — combined with what seems to be ever more aggressive hardball — that concerns scholars and other observers. Close up, the specific actions seem small and in line with precedent. But the fact that these are entire sets of actions, not one-off efforts, seems more aggressive and potentially insidious.
That’s especially true because President Trump routinely praises anti-democratic authoritarians around the globe. Underlying many critiques of these legislatures’ actions is the worry that worse is yet to come.