Designing Resistance - democratic institutions and the threat of backsliding (IDEA 2023)The following (non-exhaustive) list outlines 12 of the most frequently seen trends in backsliding:
1. Draining, packing and instrumentalizing the judiciary. This process begins by diluting the power of the judiciary—for example, by restricting its jurisdiction or lowering judicial retirement ages to purge sitting judges from the bench. The court is then packed, either by filling newly vacant seats or by adding or expanding tribunals in order to allow the current majority to confirm several judges at once. Once reconstituted, power is reinfused into the judiciary, who can act to enable and legitimize the backsliding regime’s policies as well as to attack the opposition. See: Bolivia, Ecuador, El Salvador, Hungary, Israel, Nicaragua, Maldives, Poland, Türkiye, United States of America, Venezuela.
2. Tilting the electoral playing field. This involves making changes to the electoral system to heavily favour the incumbent. This can include changing electoral districts and apportionment (gerrymandering), curating the electorate through selective enfranchisement/disenfranchisement and changing the way that surplus votes and seats are distributed between winners and losers. It might also include finding ways to disqualify opposition members from standing for election or reducing transparency or independence in election management and oversight. See: Albania, Benin, Bolivia, Dominican Republic, Ecuador, Georgia, Hungary, India, Mongolia, Nicaragua, Poland, Serbia, Türkiye, Ukraine, USA, Venezuela, Zambia.
3. Weakening the power of the existing opposition. Limiting the ability of the existing opposition to check the government complements the tactic of working to keep the opposition from gaining power. It has been achieved by using disciplinary sanctions against opposition members to remove them from parliament and amending parliamentary procedures to reduce the floor time or bargaining power of the minority. See: Ecuador, Hungary, India, Türkiye, Ukraine, USA (Tennessee), Venezuela, Zambia.
4. Creating a democratic shell. This tactic involves incorporating measures into the constitution or legal system which are ostensibly democratizing or liberalizing but do not necessarily have that effect in practice. This might occur when design choices are imported from other democratic systems but are divorced from other elements central to their functioning or lack the enforcement mechanisms that give them teeth. This strategy allows the backslider to point to design elements borrowed from strong democratic countries and insist that criticism is unfounded or even hypocritical. See: Hungary, North Macedonia, Türkiye.
5. Shifting competencies/parallel institutions. This strategy entails shifting powers from a non-captured institution to a captured one. This can be useful when the existing institution has effective safeguards for independence. For example, a backslider could set up a new elections oversight committee, which is then given some powers previously held by an independent election management board. While this may, at first glance, appear simply to give greater attention to an important issue, it ensures that this attention is exercised by those chosen by the administration. See: Hungary, Israel, Poland, Venezuela.
6. Political capture: realigning chains of command and accountability. This involveschanging appointment procedures or bringing an office under the command of a different (political) office, thus infusing civil service offices with a political pressure that is difficult to detect from the outside. For example, independent prosecutors may be brought under the command of the Minister of Justice, having originally been accountable to an independent judicial oversight board chosen by judges and lawyers. See: Hungary, Israel, Poland.
7. Selective prosecution and enforcement. Selectivity is one
of the most common and liberally used of the backsliding methods. On the
prosecution side, it may include prosecuting political opponents for low-level
non-political crimes—such as building code violations or tax infractions—whichare not generally strictly enforced. On the rights side, it might include having
laws on the books that ostensibly protect minorities but failing to enforce them
when certain unfavoured minorities are affected. See: India, Türkiye, Ukraine,
USA, Zambia.
8. Evasion of term limits. Eliminating term limits is usually
justified by one of two arguments. One is that they obstruct the ability of the
people to choose their own leader. The other is that they impede the ability of
the backslider—portrayed as the only true representative and defender of the
interests of ‘the people’—to vindicate those interests. Term limits may be
evaded in a number of ways beyond mere elimination. The toolkit includes
examples such as enacting term limits that do not apply retroactively
(El Salvador); rotating out of office and then back in (Russia); and delaying
elections on purportedly emergency grounds (Ethiopia). See: Armenia, Bolivia,
Burkina Faso, Burundi, El Salvador, Ethiopia, Honduras, Nicaragua, Sri Lanka, Venezuela.
9. Expanding executive power. Most tools in the toolkit involve
eroding the checks on the exercise of executive power. The converse of these
strategies is the direct expansion of that power. Expanding executive power is,
in some sense, the most direct form of backsliding because backsliding largely
serves the main end goal of aggrandizing power personally to the backslider.
While more efficient and effective, directly expanding power is more transparent
and thus politically costly than the subtler art of shaving down checks.
Executive powers that have been expanded include control over appointments
(Ukraine), control over finances (Hungary) or even the power to decree laws on
certain topics, like banking or use of national resources (Venezuela).
See: Armenia, Hungary, Türkiye, Ukraine, USA, Venezuela. 10. Temporal entrenchment (‘harpooning’). This refers to a
strategy whereby backsliders make major changes while they
enjoy a supermajority and then move to make it as difficult as possible for those
changes to be undone. This involves (a) requiring a future supermajority to undo
the changes and (b) relying on other measures, such as tilting the electoral playing
field, to make it difficult for the opposition to acquire such a supermajority. We refer
to this strategy as ‘harpooning’ because the backslider penetrates the halls of power,
makes changes and then makes these difficult to undo—much in the way that a
harpoon opens and cannot be pulled back out. See: Hungary.
11. Shrinking the civic space.
This tactic includes attacks on the media, civil society organizations and the civil
liberties of the electorate. These should normally act as checks on government by
demanding government transparency and promoting government accountability,
facilitating the organization of opposition and protest, and, of course, by exercising
the franchise. However, the backslider can significantly impair the ability of these
non-government ‘institutions’ to act as a check by buying up, shutting down or
regulating the media; placing onerous requirements on unfriendly civil society
organizations; and using libel laws or states of emergency to restrict freedoms of
expression and association among the electorate. See: Hungary, Poland, Türkiye, Zambia.
12. Non-institutional strategies. While this Report canvasses
institutional tactics by which backsliding is achieved, it is still imperative for the
constitution-builder to consider non-institutional strategies, such as using populist
rhetoric or supporting discriminatory policies. Account should be given to how
institutional design choices can help (a) to address a backslider’s ability to use such
non-institutional tactics to their advantage and (b) to prevent the conditions that
give rise to backsliding in the first place. Regulation of political parties, for example,
may help prevent backsliding candidates from entering office at all.
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