Alternate Title: “Rochester and Murdoch in Washington, DC“

The Supreme Court is prepared to hear arguments about whether President Trump may be disqualified from 2024 presidential election in several U.S. states just because he tried to overthrow the democratically elected government of the United States through an armed insurrection on January 6, 2021. On one hand, the 14th Amendment of the U.S. Constitution prohibits anyone who has engaged in insurrection from holding office:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. 

On the other hand, President Trump wants be president again. So you can see, there is a real dilemma here.

I don’t know how the Supreme Court will rule. Yet, I do know that the outcome probably has nothing to do with the letter of the law. So as much as I find solace in the sober analysis of someone like Michael Huemer, that is irrelevant. If the Court wishes to overturn Colorado and Maine, they will do so; if the Court wishes to defer to the states, they will. The outcome will depend on what nine Supreme Court justices decide they want to do, and in turn, that will depend primarily on whether or not they want Trump to have a chance to be president again.

You might read the preceding paragraphs as if I’m just being a little snarky, or exaggerating for effect. But I am entirely serious: in 2024, Americans must stop believing that the rule of law is an institution that just operates all by itself. The rule of law does not operate automatically, and law do not apply themselves, and they obviously do not just apply themselves when the people doing the applying have an interest in how they are applied.

These observations about the Supreme Court and President Trump point to a deeper insight about the rule of law in American politics, and the autonomous role of American political institutions in producing a regular political and social order. Political order is about power and interests, not institutions. To see that, let’s take a detour to Southeast Asia to think about how dictators have used institutions to cement their hold on power.

Do Political Institutions Constrain?

Ten years ago I published a review essay in the British Journal of Political Science entitled “The Institutional Turn in Comparative Authoritarianism” (free PDF). This essay reviewed three very good books (link, link, link) that made novel and important arguments about the institutional foundations of authoritarian rule, and argued that each of them faced a difficult conceptual problem in how they studied the effects of institutions like dominant parties and controlled legislatures. Specifically, there was a tension between the idea that political institutions constrain political actors, and the idea that political institutions are created by political actors in order to constrain. If we wish to argue that authoritarian institutions are constraints, it is hard to then also argue that they are themselves subject to political manipulation. I used the case of Malaysia under the Barisan Nasional to illustrate the issues. As I wrote,

By design…Malaysia’s most important political institution does not constrain legislative policy making. Laws change in response to periodic challenges to the existing political order, such as leadership disputes and economic crises….When the opposition denied the ruling coalition its supermajority after the 1969 general elections, political elites’ responses revealed their power to manipulate institutions. Using the pretext of ethnic riots in Kuala Lumpur, the executive declared a state of emergency and shuttered parliament, only to reopen it in 1971 after reshuffling the party’s leadership and absorbing an important opposition party into the new Barisan Nasional coalition. Faced with institutional constraints on their political power, the elites very publicly and very deliberately destroyed these constraints. What re-emerged after 1971 was a different equilibrium outcome: a national legislature dominated by a coalition of parties that was in turn dominated by UMNO.

An earlier version of that essay circulated under a different title: “Rochester and Murdoch in Kuala Lumpur.” This impenetrable title was a joke with an audience of one.* It described two important theoretical paradigms that have fundamentally shaped my own thinking as a political scientist, but which tend to have nothing to do with one another. One is the Rochester tradition of what people used to call “rational choice theory.” The other is what some people used to call the “Murdoch school of political economy.”

Both are schools of “political economy,” but with different foundations. The former uses mathematical formalisms to investigate the logical structure of arguments about how actors interact. The latter starts from the position that powerful actors, normally the wealthy, shape politic orders to suit their own material interests. “Rochester” uses the tools of microeconomic theory; “Murdoch” draws on Marxian paradigms. I argued that these two very schools of political economy actually produce the same critique of established work on authoritarian institutions: those institutions should not be understood as exogenous, but rather as endogenous, the product of goal-seeking actors who build institutions in order to realize their own interests.** Were those interests to change, then so would the institutions.

Scholars working in each tradition would look at Malaysia’s political institutions under authoritarianism and say, if you’re focusing on these to explain Malaysia’s political order, you’re missing the point. It’s about power and interests, and the institutions are the outcome, not the cause.

Institutional Disequilibrium in Washington, DC

A decade later, in 2024, I am struck by how relevant this perspective on authoritarian institutions is for democratic politics in the U.S. right now.

This might not be that surprising. My thoughts about Malaysia’s political institutions, and about institutions as constraints, were actually inspired by theoretical debates about U.S. politics. I specifically remember, as a graduate student, a long debate in my political economy seminar about whether it made any sense at all to invoke the notion of “Structure-Induced Equilibrium” (or SIE) to explain why there is any regular order in Congress. This debate was foundational my view of institutionalisms in political science, and it is foundational for understanding U.S. politics right now.

SIE is a conceptual solution to a theoretical problem. Simplifying greatly, the theoretical problem is that if politics involves multiple issues that can be represented as multiple dimensions and politicians are free to propose what they want in order to achieve their interests, there is no equilibrium outcome. Given any status quo policy bundle, there is a majority that supports an alternative policy bundle that defeats that status quo. This is a “problem” because it predicts chaotic (literally) behavior in Congress. But Congress actually functions: votes are held and bills are passed.

SIE works by distinguishing between policy coalitions and procedural coalitions. As I wrote in 2014,

Policy coalitions are ‘normal’ politics, in which legislators vote on substantive bills under broad agreement about the institutional rules that govern legislative behavior. Procedural coalitions form to vote on the institutional rules themselves. Legislators’ worries about co-operation and enforcement prevent procedural coalitions from forming very often, because all potential such coalitions recognize that they are vulnerable to later manipulation by future procedural coalitions. For a majority of legislative behavior, then, rules can be taken as exogenous and behavior analyzed as if institutions were indeed hard constraints

Mechanically, SIE shows how you can get equilibria (and, hence, regular order) in a multidimensional policy space. Substantively, it is a way to explain why there is no chaos in Congress. But the debate that I remember from graduate school is whether or not this theoretical solution is satisfying: is it satisfying to posit that the answer to the question “why is there order in Congress?” is “because legislators care about Congressional order in a way that is analytically separable from how they care about policy” and calling that a structural answer?***

My position was that the concept of SIE is not satisfying in the sense just described. I’m not taking issue with the empirical content of the predictions—there are some real institutionalists in Congress!—but with its conceptual foundations. SIE imposes a structure for actions that constrains actors’ strategies. But that structure is itself a political creation, and it will constrain only just so far as actors enable it to do so. In Shepsle’s own words, “Institutions are constraints except when decisive coalitions decide they are not.”

Power and Interests versus Institutions

It may be useful for most of the time to assume that political actors will act within institutions rather than overturning them to get what they want. Then again, remember when 25% of the House of Representatives voted to disenfranchise my parents because they didn’t want a Democrat to be the President? I sure do, and in fact, I watched it on TV. This was the day that President Trump tried to execute his own Vice President. One of the people who voted to disenfranchise my parents is now the Speaker of the House.

If you’re looking at U.S. institutions to save democracy, you are missing the point. William Riker made this point over four decades ago:

It is of course true that this easy predictability [of political outcomes] is an illusion—but it is an illusion by which many scholars are hoodwinked because in quiet times the institutions are constant and only tastes are in dispute, while in turbulent times the institutions are in flux and only human greed seems constant. One fundamental and unsolved problem of social science is to penetrate the illusion and to learn to take both values and institutions into account.

He concluded

Disequilibrium, or the potential that the status quo be upset, is the characteristic feature of politics…. institutions are no more than rules and rules are themselves the product of social decisions. Consequently, the rules are also not in equilibrium. One can expect that losers on a series of decisions under a particular set of rules will attempt (often successfully) to change institutions and hence the kind of decisions produced under them… Thus the only difference between values and institutions is that the revelation of institutional disequilibria is probably a longer process than the revelation of disequilibria of taste.

Americans are now looking Riker’s argument squarely in the face: losers who have lost on a series of decisions now wish to change the institutions. When Elise Stefanik says that she will not certify the 2024 election unless it’s “legal and valid,” what she means is that she won’t certify unless she likes the outcome.

We are far past the point in which one might plausibly argue that structure induces equilibrium. We are in the realm of power and interests. And for this reason, it is time for those who favor constitutional law in the United States—those who favor the current institutions over the alternative political order proposed by Trump, Stefanik, and other enemies of our republican form of government—to use their power in their interests.

What might this look like in practice? Here is a proposal. Support for Trump is support for insurrection. The facts of what Trump tried to do on January 6 are not in dispute, and his plan if reelected—openly, explicitly—is to turn the federal government into a weapon against his enemies. He is pledging not to be bound by the law, by the Constitution, or by republican principles. Trump should be barred from appearing on the 2024 ballot, and anyone who voted to disqualify electors in support of the January 6 insurrection should be expelled from Congress.

You can wrap up a justification in the 14th Amendment if you like. Or you can do it because you know that they would do it to you if they had the chance.

NOTES

* Me.

** At the time that I wrote that essay, I thought that this was the more interesting intellectual point: that two different political economy traditions—which would have dismissed one another, if each gave the other the time of day—made the same critique. (It is hard to convey in words the open disdain that scholars working in these two traditions had for one another in the 2000s. I know this from personal experience, but I shall not name names or give examples.)

*** You can see why this would be particularly odd to argue in the case of authoritarian institutions.