Subnational Politics and the Path of National Democracies

In Germany and the United States, political factions have emerged in the last decade that have challenged some of the core institutions, conventions, and norms of liberal democratic life. Like any comparison between two jurisdictions’ experience with democratic turmoil, a contrast drawn between the German and American experiences must be caveated heavily by recognition of the large differences in political culture, institutional context, geopolitics, and much else. We think particular caution is warranted in drawing prescriptions from comparative experience: The small-n universe of data and the innumerable differences between national polities make the effects of legal reforms often unpredictable. Nevertheless, we think the comparison is provocative and perhaps instructive: In both countries, subnational units of government—states or municipalities—have operated as staging grounds for parties or factions of parties that reject some or all necessary elements of democratic practice. While they have used different institutional tactics to this end, many basic elements of political strategy can be observed across the two cases.

What Thuringia and Florida have in common

Democratic backsliding in recent American history is closely identified with former President Trump. But he does not, for once, deserve all the credit. At the state level, governors and legislators have also pressed institutional and legal changes that impinge, potentially seriously, on the quality of democracy at both the state and national level.¹⁾ Republican states, for example, have enacted a wave of restrictions on voting over the past two decades. They are able to do so because Article I, Section 4 of the U.S. Constitution assigns states the power to determine the “times, places and manner of holding elections,” and because state and federal elections are held concurrently at the same locations, these restrictions have an effect on national democratic quality. In Texas, for example, a 2021 law called S.B.1 imposed a slate of restrictions on mail-in and absentee ballots, limited the assistance that can be provided to voters, reduced voting hours, and opened election workers and voters to new kinds of harassment by partisan “poll watchers.” In addition to these limits on the franchise, partisan gerrymandering after the 2010 census in seven Republican-controlled states–Michigan, North Carolina, Pennsylvania, Ohio, Wisconsin, Virginia, and Florida—netted the party thirty-three “extra” seats in Congress.²⁾ Finally, Republican politics at the state level have reached for “culture war” divides over immigration, race, and policing as a justification for enacting measures to make public protests more dangerous—for example, by relaxing rules on the use of deadly force by property owners and counter-protesters. In the case of Texas’s and Florida’s governors, these measures are plausibly viewed as implicit pitches for higher national office.

In Germany, the Alternative for Germany (AfD) party was formed in only in 2013—more than a century and a half after the Republican party in the U.S. Until recently, it did not enjoy sufficient electoral success to exercise political power. Its far-right nationalist policies continued to gain in popularity, and the party’s support in national parliamentary elections in 2017 leapt from 4.7% of the national vote to 12.6% in 2021. However, other parties had an informal “Brandmauer” or firewall against cooperating with the party, so it could not sit in government. In June 2023, the AfD candidate for Sonneberg in southern Thuringia won an administrative seat. Then in October 2023, the Brandmauer against the AfD buckled in the Thuringia state legislature in a vote on a minor property tax measure. In national polls, the party now attracts the support of roughly 20 percent of Germans despite its “anti-democratic,” “racist,” or “anti-Semitic codewords.”

The AfD’s growth has come from “cannibalizing what may have otherwise been [the] base demographic” of the National Democratic Party (“NDP”). It has been able to “normalize its extremism” by advancing previously scandalous positions on “culture war” issues such as immigration, Islam, gender, and LGBTQ rights. At the same time, its leaders follow the lead of many other populist parties by positioning themselves (and their potential electorate) as victims of a narrow, self-serving political elite that has betrayed the true interests of the German people (described as a unitary entity), and evince a deep skepticism about the shadowy bureaucrats of Brussels. Unlike the Republican Party in the United States, however, the AfD has little to say about public policy issues such as the economy or public health. Rather, the AfD’s claims to champion nation, race, and families against a demonized coterie of elite minorities tracks nothing so much as Carl Schmitt’s understanding of politics as orbiting about the “friend/enemy” distinction.³⁾

Different historical trajectories: the misuse of procedural opportunities

There are important differences, of course, between these two parties that make comparison tricky. Most obviously, the Republican Party is more than 150 years old, has undergone significant metamorphoses since the time of Lincoln, and has deep institutionally-rooted networks of activists and bureaucratic structures in both the several states and Washington DC. Its present manifestations in Texas and Florida also reflect one pole (albeit an increasingly hegemonic one) of the national party, but there are other forces at play within it. The party’s long history and effective subnational monopoly on political power in some parts of the country create ample opportunities for intraparty fluidity, as well as unfettered opportunities for actual exercise of governing power. In contrast, the AfD is just reaching its first decade, and is only now breaking into elected offices. Its chances to exercise practical governing power have, to date, been slim. We don’t yet know how it would govern were it to have the chance to do so.

The different historical trajectories of the AfD and the Republican party have implications for their possibilities of wielding political power and shaping public influence. Different legal techniques emerge as a consequence of divergent histories and political demographies. Unlike the AfD, the Republican party not only controls legislative majorities in many states but also has a durable hold on such power. It is capable of translating this temporary legislative control into more durable advantage simply by exercising its majoritarian prerogative to enact legislation such as S.B.1. The minority (Democratic) party tends to have few institutional perches from which to resist such measures qua legislators. This induces forms of extra-institutional action that appeal directly to the public. For instance, in 2021, Texas Democratic legislators temporarily fled the state in order to deny the legislature a quorum, and hence slow down the enactment of new voting restrictions. Secure majority status, in other words, allows the Republican Party both to entrench its political power and dictate a policy agenda by enacting laws: It does not need to be creative in the exploitation of procedural entitlements in the fashion of Texas Democrats. That said, there are instances in which majority status in a state legislature has been abused. In Montana, for example, the Republican legislature sanctioned trans representative Zooey Zephyr for saying that a statutory ban on gender-affirming care would leave “blood on their hands.” Zephyr was barred from attending or speaking during floor sessions—in effect for pressing a moral and pragmatic argument that unequivocally belongs within legislative debate. Republican legislators in Oklahoma and Tennessee have similarly used their majority power to punish minority (consistently Black, women, or trans) legislators for critical speech.

In contrast to the Republican party, the AfD has no opportunities to deploy unfettered law-making authority, or to squeeze legislative minorities. In consequence, they have adopted a different approach that instead exploits the formal procedural opportunities open to minority legislators. As Anna-Sophie Heinze documents in a companion piece in this symposium, the AfD has employed a range of formally proper but intentionally disruptive procedural tactics in state legislatures as a “paralysis strategy” and also as a way of gaining more public attention. Heinze also canvasses the AfD’s use of “misleading and even false information” and its appeals to “outrage and simplification.” Of course, the latter is a common tactic of populist movements globally (if not unique to them), and is not a formal exercise of power as such. But the AfD’s misuse of procedural opportunities for minority parties is unlike the approach taken by Republican legislators for the simple reason that the two parties’ formal and informal opportunity sets differ.

Reframing democracy

At the same time as there are differences, there are also other striking commonalities between the approaches taken by the two parties: In both contexts, a political formation has used subnational elections as a platform for raising “cultural” issues as a way of scrambling the terms of national politics. Republican politicians in Texas and Florida enact laws on abortion, gender identity, guns, and race-related education that drive the national conversation. They have even waded into the field of immigration, which is traditionally the domain of the national government. The AfD engages in a similar culture-war “metapolitics” locally again in a way that is intended to (and does) resonate nationally. In both cases, the aim is to “delegitimate” established parties and even the formal structures of electoral competition: AfD leaders are particularly clear on this point, characterizing Germany (implausibly) as a “dictatorship” wherein “the rule of law and democracy have been hollowed out from within.” As Heinze observes, this is also plausibly understood to be the ulterior motive of their procedural abuses as minority legislators.

In both cases, a moral case against actually-existing democracy is not offered in the service of actually improving democratic quality: It is for both parties a cynical wedge through which to prise apart democratic institutions and norms, leaving a vacuum in which ethno-national authoritarianism can flourish. Their common case against democracy, moreover, walks a delicate and seemingly paradoxical tightrope. It is not so much that democracy as such is decried, but rather, the idea of democracy is reframed, and eviscerated by, a presumed identity between nation and people. At the core of both parties’ moral case is the vision of a racially homogenous and culturally conservative family and nation being victimized by the usual phalanx of populist enemies—established elites, ‘cosmopolitan’ urbanites, and non-white migrants. The rhetoric is not identical. The explicit racism and anti-Semitism of AfD is a bit more muted on the Republican fringe, at least for now. Christianity, especially its Evangelical strain, looms large in the Republican mindset, but plays a more ambivalent role in AfD rhetoric. Nevertheless, we think that it is fair to say that both political factions is a common vision: the pure family, the pure nation, and the pure culture (church).

Three preliminary comparative observations

Holding both cases in view at the same time casts at least a partial light on three important constitutional design choices that have been deeply debated in comparative constitutional law scholarship of late. We offer three, necessarily preliminary, comparative observations here.

First, both the German and the American experience illuminate an important way in which subnational political contestation shapes the quality of national politics. Writing in 2018, we noted the possibility that political decentralization can “accelerate or retard” democratic backsliding at the national level.⁴⁾ We have also previously observed the possibility of using subnational law (e.g., Texas’s S.B.1 or Wisconsin’s gerrymander) as a device to stack the deck in national elections. But the commonalities observed above highlight the possibility that subnational politics can serve as “petri dishes” in which corrosive arguments and delegitimization strategies are tested and refined.⁵⁾ The lower stakes of subnational politics robs some of the force of the arguments of democracy’s defenders: Winning in Sonneberg simply doesn’t have the same stakes as prevailing in Berlin. At the same time, the local testing of exclusionary and delegitimating political tropes itself moves the Overton window on national politics—casting doubt on the dispositions of tolerance and comfort with alterity that are necessary for democracy to function. It is hard to see how this “petri dish” dynamic can be avoided without stifling necessary space for local democracy. Its inevitability, however, does not erase its pernicious effect on national democratic quality.

Second, a wave of recent scholarship has revisited the potential of militant democratic institutions to protect against democratic backsliding.⁶⁾ Exemplifying this possibility, Article 21(2) of the German Basic Law, excludes parties “seek[ing] to undermine or abolish the free democratic basic order” (Grundgesetz [GG] [Basic Law], Article 21(2)) from political competition. Writing in 2018, we expressed skepticism about militant democracy. We characterized it as a “very risky strategy” that would likely be used against ethnic and religious minorities even in the absence of any palpable threat to democracy.⁷⁾ The trajectories of the AfD and the Republican Party are consistent with our earlier skepticism. The presence of militant democratic institutions in Germany has not prevented the emergence of a political formation that has many continuities with the Nazi party.⁸⁾ Indeed, recall that AfD has drawn much early electoral support from the NDP. In January 2017, the Federal Constitutional Court rejected an application by states to ban the NDP on the ground that there were no specific and weighty indicators that suggest the party could actually achieve its anti-democratic goals. As the Court’s press release explained, “there are no indications that it will succeed in achieving its anti-constitutional aims.” The Court’s predictive judgment was plainly off—and now it has lost its effective window for intervention. At the same time, German police “have moved to ban many pro-Palestinian demonstrations, saying there is a high risk of ‘incitement to hatred’ and a threat to public safety.” Assuming arguendo that these bans cover only (or mostly) speech against Jews as such, the contrasting legal treatment of anti-Semitism hardly bespeaks a polity with a coherent grip on that profoundly troubling problem. This illustrates a theme we have emphasized in our evaluation of hate speech laws: they themselves tend to be deployed against minority or fringe groups, but have not prevented the emergence and potential mainstreaming of a major political force articulating some of the same tropes.

Finally, and most speculatively, is the possibility that the decentralized structure of politics can breed its own cures for democratic backsliding. Within the American Republican Party, critics of Trump have to date remained on the back foot (although one of the Republicans who voted for Trump’s second impeachment, Peter Meijer, is attempting a comeback in an ongoing Michigan senatorial race). Yet the federal structure of American politics means that there are pockets of more traditional Republican power, whose comeback remains a live possibility. Once Trump (79 years old, and facing four criminal indictments as we write) fades from the political scene as he inevitably must, this will become an arena to watch closely. The more interesting possibility in Germany is the announcement in October 2023 of a new party by Die Linke’s Sahra Wagenknecht. Her “BSW” blends economic redistribution and anti-immigration politics (but not attacks on democracy as such) in an effort to appeal, primarily, to AfD voters. On one estimate, BSW could command some 12 percent of the national vote, taking 5 percent from the AfD. We are not close enough to the grain of German domestic politics to have a clear sense of the BSW’s position, or its prospects. But its existence is at least a hint that the sheer range of possibilities for competition in a federal, semi-parliamentary system might generate a drag on anti-democratic forms of populism.

In this regard, it is important to remember that petri dishes can function as well for pro-democratic reforms as for anti-democratic ones. As we write, 21 U.S. states have adopted a form of non-partisan or bipartisan redistricting mechanism, minimizing the ability of any party in power to rig the rules for its own benefit. Even as some states have restricted the rights to vote, many others have adopted laws expanding voter access, and seeking to undermine some of the culture-war issues adopted by Republican leaders. Examples of the latter include pushing back against immigration restrictions, for example through the “sanctuary city” movement, and undermining book bans by making copies of banned books available nationally in digital forms. What equivalent steps might be taken in Germany is beyond our expertise: It would require considerably more knowledge about local institutional details than we have at hand. But we do not rule out the possibility that there may indeed be some such measures. The single, modest point we would make is a negative and cautionary one: The American experience of subnational government suggests that a party averse to democratic norms can be simultaneously in the minority and in the majority in different parts of the country. In one context, we might expect to see efforts to use minority rights to paralyze, and hence discredit government, and in another the misuse of majority power. Importantly, these might be employed simultaneously by one party. Under these conditions, it makes little sense for proponents of democratic norms to advance a one-size-fits-all solution, whether it favors majority or minority interests. More supple and flexible tactics in defence of democracy are likely required.

Sidelining and the virtues of democratic competition

We conclude with a normative comment about our own country. Scholars of federalism have for some time known that subnational politics can deviate strongly from national politics, and that pockets of subnational authoritarianism can persist for a long time.⁹⁾ To ensure the continual possibility of rotation in office requires a different set of tools, we believe, than those emphasized by proponents of militant democracy. In the case of the United States, democracy’s endurance would be facilitated by reinforcing the federal government’s ability to set floors on the conditions of local elections, and so to maintain the integrity of democratic competition. The quality of elections is an issue on which local decisions have national effects, and so there is a national interest in courts and other monitors ensuring that they remain free and fair. But this scrutiny goes to procedure, and does not try to sideline political views on the basis of their substance. We are too inexpert in the German context to make recommendations, but we believe that its approach would not help to protect our country in its ongoing, slow-moving, and agonizing democratic crisis.