Backlash against the procedural consensus

Introduction

Before he won the 2016 presidential elections, Donald Trump made it clear that he would accept the election result only if he won, not if Hillary Clinton were successful. In view of the upcoming presidential elections, it seems far from certain that he would respect a defeat – he is thus questioning the very rules of the democratic game (Zittel, 2018). In the United Kingdom, the leader of the new Brexit party, Nigel Farage, openly declares that the United Kingdom’s exit from the European Union (EU) is only the first step towards his goal of destroying and completely rebuilding the British political system (Farage, 2019). The right-wing populist ‘Alternative für Deutschland’ (Alternative for Germany, AfD) writes in its manifesto: ‘The secret sovereign is a small, powerful political elite within the parties . . . Only the people of Germany can end this illegitimate state’ and demands the establishment of a different, direct form of democracy (AfD, 2016, my translation). Wherever populist parties and candidates have won influence and power, concerns have been voiced not only about the substantive policies they seek to implement, but also about their more or less successful attempts to dismantle democratic and liberal institutions.

While populists in the United States and Western Europe without exception describe themselves as committed to democracy, they obviously challenge the existing liberal democratic order on which there seemed to exist a broad and stable consensus only two decades ago (Fukuyama, 1992). In fact, populists seem to be united by a specific conception of democracy that conflicts with the model of liberal, representative party democracy that is institutionalised in Western democracies. In particular, their understanding of democracy depreciates all mediating and constraining institutions that serve the reconciliation of conflicting interests and beliefs (Caramani, 2017). What is more, their instrumentalisation of emotions as well as the taboo-breaking, polarising and hardball tactics also seem intent to undermine established norms of cooperation more generally.

This essay will apply the composite definition of backlash politics suggested by Alter and Zürn (2020) to assess the relationship between actors and movements that are viewed as engaging in a ‘politics of backlash’ on one hand and the attacks on institutions of liberal democracy that we are currently witnessing on the other hand. The focus of this article is very much on contemporary consolidated democracies, and on the challenges they face from (especially right-wing) populist movements and politicians. The cases I will refer to are exemplary in nature rather than exhaustively discussed. Accordingly, my claims to generalisability are very limited and my main objective is to add a specific, and in my eyes important, angle to the discussion of backlash politics. I will start out by making the argument that democracy rests upon a procedural consensus. This consensus on a set of principles of interaction and collective decision-making enables societies to manage conflicting interests and deep disagreements peacefully and constructively. I will then address the way in which this consensus is challenged by backlash politics. First, I will explore whether the attacks on democratic institutions are motivated by retrograde objectives, that is, by the wish to restore a different, allegedly superior normative and institutional order from the past. Coming to the conclusion that a backlash against democratic procedures is unlikely without more substantive backlash goals behind it, I will assess the ‘frequent companionship’ between backlash politics and challenges to the institutional order, asking how and why procedural contestation is used in the pursuit of substantive retrograde objectives. In the final section, I will discuss possible outcomes of backlash politics for democratic institutions, arguing that in the best case, the present contestation of rules, norms and institutions could also lead to a democratic renewal of the procedural consensus.

Procedural consensus and liberal democracy

Cases like Hungary, where attacks on democratic rights and procedures have already been successful in reshaping the institutional order and damaging core institutions of liberal democracy, obviously give us reason to fear these attacks. But what is their significance on a more general level, why should they concern us even if institutions remain intact, at least for the time being? In his seminal text on ‘Legitimacy through Procedures’, the German social theorist Niklas Luhmann (1983) argued that in a secular, individualised and highly pluralistic society, only the political-administrative system can generate legitimacy for collectively binding decisions through respective procedures. These procedures enable societies to manage conflicting interests and opinions and to arrive at decisions that are accepted as legitimate even by those who disagree with them on a substantive level. Modern democracy is in this sense based upon a procedural consensus, which becomes ever more important as the heterogeneity of interests, values and opinions increases.

The ultimate object of this procedural consensus consists in a set of normative principles of interaction and collective decision-making. These principles are institutionalised in more specific formal rules and laws as well as in the more informal norms of respectful and non-violent interaction that Levitsky and Ziblatt (2018) describe as the ‘guardrails of democracy’. While the more specific implementation of these principles, for example, in an electoral system or the institutional design of political institutions, can be more or less controversial and subject to contestation, consensus on core principles of democratic decision-making and the rule of law seems to be an essential condition for institutionalised procedures to manage substantive conflict through decisions that are deemed legitimate by those who are bound by them.

The focus on the procedural consensus invites a contract-theoretical perspective. A ‘contractarian’ perspective would reconstruct agreement on a social contract over a set of rules and norms as a matter of self-interest, based on the assumption that everyone’s interests are eventually better served under the contract than under non-agreement. A ‘contractualist’ perspective, by contrast, views the social contract as the result of a negotiation in which rules are justified to all participants in the social contract (see Gauthier, 1997; Weale, 2013: 9–10). The justification of a democratic social contract, or a set of democratic institutions, can in principle be either instrumental, in the sense that the procedures help to attain higher-order goods, or based on the intrinsic values of procedures as, for example, guaranteeing equality or the exercise of individual and collective autonomy (see Coleman and Ferejohn, 1986). Assuming that justifying reasons become motives to support democratic institutions, it makes sense to study the role they play for citizens and democratic practice.

Pippa Norris (2011: ch. 8) has described the development of citizens’ conceptions of democracy in the process of democratic consolidation, arguing that authoritarian conceptions are replaced with instrumentalist and then procedural conceptions of democracy, ultimately leading to an ‘enlightened’ understanding of democracy, where support for democracy is based on the intrinsic merits of democratic institutions alone. However, Norris’ cognitivistic measurement strategy that is primarily interested in people ‘getting democracy right’ obscures the fact that both instrumental and procedural motives are likely to be relevant for supporting democracy (Landwehr and Leininger, 2019). Survey data from the last decades suggest that although large majorities of citizens in consolidated democracies strongly support core principles of liberal electoral democracy (Ferrin and Kriesi, 2016), satisfaction with democracy and trust in democratic institutions are suffering. This dissatisfaction could be due to the frustration of the instrumental and intrinsic reasons citizens have for supporting democracy: democratic institutions might fail to deliver on substantive expectations (such as economic growth, low unemployment or combatting climate change) or fail to meet procedural expectations (such as participation, equality and fairness) or both.

In any case, increasing levels of dissatisfaction reflect a disturbance of the procedural consensus that might further reduce the capacity and performance of democratic institutions. As Ruth Cohn (1969) argued with regard to group interaction more generally, ‘disturbances and passionate involvements take precedence’. This statement has since been interpreted as a rule to be implemented by facilitators in group discussion. Cohn (1969), however, was stating an empirical fact: challenges to the fundamental premises of interaction and decision-making will undermine reciprocity and prevent substantive agreement whether or not we want and allow them to. Only trust in one another’s reciprocity and a consensus on fundamental normative principles behind its procedures allow mass democracy to take decisions without explicit consent from all those affected by them. While support for majoritarian and not fully inclusive procedures is anything but self-evident, mutual trust in reciprocity and the procedural consensus that builds on it can guarantee that those whose preferences are not reflected in decisions remain loyal to the democratic regime. Political losers’ loyalty to democracy ultimately depends on the hope to win support for the own positions in the future, trusting that the winners will hear and understand their arguments and respect their interests. ¹ As noted before, this loyalty seems to be crumbling in some groups.

Backlash against democratic institutions?

Having discussed the importance of procedural consensus to democracy, I will now address the role of challenges to democratic institutions and procedural consensus in backlash politics. In their framing paper, Alter and Zürn (2020) argue that ‘institutional reshaping’ features as a frequent companion and possible outcome of backlash politics. Before considering the nature of this frequent companionship in the next section, however, I want to explore whether there are retrograde movements against democratic institutions, that is, whether institutions are a specific object of backlash movements and politics.

‘A retrograde objective of recovering the past’ is put forward by Alter and Zürn (2020) as one of three ‘jointly necessary elements’ of backlash politics. Retrograde is defined as ‘aiming to revert to a prior condition’ and distinguished from ‘regressive’, which refers to a ‘less developed stage’ (Alter and Zürn, 2020). A teleological perspective on institutions would suggest that any earlier stage of institutional development is also a less developed stage. As Alter and Zürn (2020) argue, however, from the perspective of backlash agents, the earlier stage is superior and the retrograde move does not at the same time constitute a regression. Seeking to avoid a normative condemnation of backlash politics in general at this stage, I will adopt the distinction between retrograde and regressive and ask whether backlash politics against democratic institutions seek to return to an earlier stage of institutional development or a supposedly better form of democracy that existed in the past.

Examples for retrograde, nostalgic thinking about political institutions can be found both on the right and on the left side of the political spectrum. Institutional nostalgia may be more surprising on the political left, which is traditionally characterised by the idea that the best – socialism or at least a more egalitarian social-democratic order – is yet to come. To thinkers on the political left, a return to pre-democratic institutions and practices would clearly seem not only retrograde, but from a normative perspective also regressive, as it clearly involves the sacrifice of essential egalitarian attainments. Reading more or less recent books by authors such as Colin Crouch (2002), Peter Mair (2013) or Wolfgang Streeck (2014), one is stricken by the nostalgia-tainted descriptions of the 1950s and 1960s as the ‘golden age of democracy’: Back then, electoral turnout rates and vote shares for labour parties were high, trade unions were strong, and capitalism was contained by democratic government. But according to these authors, neoliberal forces have since unshackled capitalism from democratic control and erected a post-democratic order in which national democratic institutions have been reduced to a mere façade. While none of them wants to turn back the clock to the 1950s and all acknowledge the past 50 years’ achievements in terms of liberalisation and equal rights, they are united in the wish to restore national sovereignty and democracy by reversing moves towards transnational government in the EU, which in their eyes is inherently elitist and technocratic.

On the political right, other and perhaps more disturbing examples for retrograde thinking about political institutions can be found. The monarchist ‘Schwarz-Gelbe Allianz’ (black-yellow alliance) in Austria seeks to redeem the Habsburg Empire and turn the country into a constitutional monarchy. Like British groups of monarchists, the rather marginal group thus does not aim to replace democratic institutions altogether, but instead seeks to strengthen national identity and political legitimacy through the influence of a supposedly popular hereditary monarch. The ‘Reichsbürger’ movement in Germany, by contrast, denies the existence of the Federal Republic of Germany and rejects its legal order, claiming that the 1919 Weimar constitution is still in place. The movement is heterogeneous and comprises neo-Nazi and esoteric groups, some of which issue fake passports and driving licences to citizens of the ‘Deutsches Reich’. There are some contact points between the Reichsbürger movement and the populist AfD, which, however, does not share their retrograde objectives for democratic institutional development. Instead, the AfD’s suggestions to establish a more direct democracy are presented as forward-looking and might at a first glance also seem progressive. However, considering the conception of democracy that is behind right-wing populist’s call for direct democracy, it becomes apparent that their procedural preferences are closely tied to their substantive goals: A strongly majoritarian, essentially illiberal democracy in which a strong leader acts in accordance with the ‘will of the people’ only makes sense for a highly homogeneous society. Nostalgia for a time in which more traditional norms were in place and society was seemingly less heterogeneous could thus also involve nostalgia for an (imagined) past in which politics was less conflict-ridden and less complex. Nonetheless, it is the substantive retrograde objectives of right-wing populist backlash movements that seem to drive their attacks on democratic procedures, which are in this sense mostly instrumental.

Returning to the question of whether we are presently witnessing backlash politics against democratic institutions, most of the above examples do not display all three elements Alter and Zürn (2020) regard as necessary for a diagnosis of backlash politics: While the Reichsbürger movement is retrograde and can be described as extraordinary in the sense that it fundamentally challenges the dominant script – it in fact denies the entire political order – it does pass the popular threshold. Monarchist movements, by contrast, seem to be predominantly affirmative of existing social and political order, but want to add or strengthen the monarch as a mostly symbolic entity to enhance national identity and legitimacy. Despite their nostalgia for the 1950s, leftist political thinkers such as Crouch (2002), Mair (2013) or Streeck (2014) and the political movements that were partly inspired by their ideas (such as Corbynites in the United Kingdom, Mélenchon’s ‘La France insoumise’ or the ‘Aufstehen’ movement in Germany) do not want to reverse democratic institutional development either. While they do challenge a number of policies, they want to use the institutions of liberal electoral democracy to change these and do not attack the procedural consensus.

Among the movements characterised by some degree of retrograde institutional thinking, right-wing populists seem to have the most potential of ‘launching a political dynamic . . . that is potentially transformative’ (Alter and Zürn, 2020), even if their attacks on institutions are mostly instrumental to their substantive goals. Two aspects seem particularly important to me here, however:

First, even where the democratic institutions of national democracy are not fundamentally questioned, the legitimacy of transnational institutions in general and the EU in particular is vigorously questioned. Attacks on the EU clearly have retrograde objectives and are commonly inspired by the idea that the prior state of national sovereignty should be retained. Insofar as European integration has at least in the old member states been part of the dominant script and its institutions and policies subject to an at least permissive consensus, these attacks are also clearly extraordinary and have passed a popular threshold that has already unleased a transformative dynamic. It thus clearly makes sense to talk about backlash politics against the EU and other trans- and international institutions (see Kriesi, 2020). Already, we can witness how the procedural consensus these had been subject to dwindles, leading a loss of decision-making capacity and reduced performance. I will come back to the case of the EU in the final section.

Second, attacks on equal rights by right-wing populist movements must be seen as challenges to the procedural consensus, even if they are not directed at democratic institutions. Instead, they question the foundational principles of liberal democracy and democratic interaction, which are egalitarian. Overt or concealed racism, sexism and homophobia violate the conditions of respect and reciprocity that are essential for democratic institutions to function. They thus create disturbances that erode the procedural consensus and reduce capacity and performance of institutions in substantive terms. However, given that the primary motives behind attacks on equal rights are substantive rather than procedural, it might be more fruitful to assess these attacks on democratic institutions as a frequent companion of backlash politics, which I will do in the next section.

Backlash and collateral damage to democracy

Alter and Zürn’s description of the frequent companionship between backlash politics and attacks on institutions fits the above diagnosis of mostly instrumental attacks on democratic procedures: ‘Extraordinary demands often involve the targeting of procedures and institutions of decision-making that are blocking the achievement of desired goals’ (Alter and Zürn, 2020). Recent examples of institutional reshaping in post-socialist states such as Hungary and Poland show that the judiciary in particular is under threat from backlash agents, who, once they have risen to power, seek to abolish its independence and prevent it from blocking their illiberal agendas. However, the temptation for power-holders to tilt decision-making procedures in their own favour is omnipresent in democracies, with practices of Gerrymandering in the United States serving as the prime example (see Waldner and Lust, 2018: 100). What seems surprising is that backlash movements frequently wield attacks against democratic institutions even where they do not (yet) gain access to power. Given the relatively strong support for democracy even among many supporters of backlash movements, these attacks at a first glance seem unlikely to find resonance. Strategically, it would apparently make more sense for backlash agents to hide aspirations for institutional reshaping until they gain access to power. Hence, the interesting question is not why backlash agents try to reshape institutions once they are in power, but why their attacks on democratic institutions resonate with supporters of backlash movements and what effect these attacks have even where democracy survives.

Given that democracy constitutes what Connolly (1974) calls an ‘appraisal concept’, it is not surprising that almost all backlash agents describe themselves as democrats. What they are offering to their followers is not authoritarian rule, but a different kind of democracy. As noted in the previous section, contemporary backlash movements in consolidated democracies do not typically have explicitly retrograde objectives for institutional development. Even if their visions may be tainted by nostalgia for a less heterogeneous and pluralistic society, they do not really want to return to a prior state of democracy, but instead aspire to a new type.

To put the alternative models of democracy propagated by backlash agents into perspective, it is important to acknowledge the fact that there is no such thing as a perfectly fair and outcome-neutral procedure: at the level of specific rules and institutions, any given democratic procedure benefits some interests and values more than others. Majoritarian electoral systems, for example, have more regressive distributional effects than proportional representation systems (Iversen and Soskice, 2006) but benefit the political representation of territorially concentrated interests. Parliamentary rules of procedure grant consultation rights to some interest groups and not to others, and bodies of functional representation will take different decisions if they are staffed with stakeholders than if they are staffed with academic experts. Accordingly, we should assume existing institutions and decision-making procedures to reflect and entrench dominant norms and interests. This dominance may well be the result of democratic will-formation and subject to majoritarian support. However, it is unlikely to be viewed as such by its opponents.

When existing democratic decision-making procedures produce perpetual losers who feel that these procedures are biased against their substantive objectives, these losers will likely move the conflict to a meta-level and challenge not only decisions themselves but also the institutions and procedures that produce them. Given that these attacks are wielded in the name of democracy and that the concept of democracy, while often overstretched, is not void, mere self-interest does not serve as a justification for attacks. Instead, attacks on democratic decision-making procedures require a distinct and coherent normative conception of democracy to which existing institutions are compared – and judged to be deficient.

Focusing on right-wing populist backlash movements, they clearly seem to share a populist conception of democracy that is characterised by three central elements: the demand for an imperative mandate and immediate responsiveness to a putative popular will, anti-pluralism and majoritarianism (Caramani, 2017; Steiner and Landwehr, 2018). This conception clearly meets with resonance among large groups of voters who are alienated and frustrated by mainstream political parties and office-holders and do not see their substantive preferences represented. However, there is also an interesting self-contradiction in populists’ views on democracy: While they claim to speak for ‘the people’ or at least a (possibly silent) majority, most of them do not (yet) win such majorities in democratic elections – even Donald Trump lost the popular vote to Hillary Clinton. Moreover, liberalisation, demographic changes and generational replacement constitute currents that work against the retrograde agendas of populist backlash movements. ² The apprehension that the dynamic of norm development has a different direction creates a sense of urgency among the supporters of backlash movements. If retrograde objectives cannot be achieved now, they may become forever unattainable. Although democratic institutions that stand in the way of these agendas are not the primary target of right-wing backlash politics, attacks on them can then be justified with a distinct conception of democracy that is coherent with their illiberal agendas. In cases where proponents of backlash agendas have gained access to power, such as Donald Trump in the United States, Victor Orban in Hungary or PiS in Poland, they accordingly have swiftly sought to remove institutions that protect pluralism and minorities. In addition, taboo-breaking tactics, violent verbal attacks on political opponents and challenges to equal rights and the egalitarian premises of democracy are undermining norms of respect and reciprocity, thus undoing the soft ‘guardrails’ of democracy. Even if the damage to democratic institutions caused by right-wing populist backlash politics is collateral in the sense that democracy is not their primary target, it can nonetheless be fatal. In the next section, I will therefore address possible outcomes of backlash politics for democratic institutions and reflect upon possible counter-strategies.

Possible outcomes for democratic institutions: Can we regain a procedural consensus?

Alter and Zürn (2020) argue that backlash politics are likely to end in one of three ways: ‘(1) through a loss of internal energy, (2) by being transformed into a cleavage that gets absorbed into ordinary politics; or (3) by achieving the desired retrograde change’ (Alter and Zürn, 2020). If we focus on the way in which backlash politics is directed not only against substantive policies but also against the political system and its procedures, what would these possible outcomes imply for democratic institutions? And is there anything to be done to achieve one rather than another?

If a backlash movement is successfully diffused, absorbed or suppressed by counter-strategies, there is little reason to expect that democratic institutions and decision-making procedures will not remain intact. Nevertheless, the disturbances created by taboo-breaking, verbal violence and hardball tactics employed by backlash agents may have lasting effects. Trust in politicians and institutions will have to be rebuilt and informal conventions of interactions and cooperation structures will have to be re-established.

If, on the contrary, a backlash movement leads to ‘social reversion’, that is, the redefinition of ordinary politics and establishment of a new status quo, what would this imply in the procedural dimension? Poland and Hungary may be viewed as cases of ‘democratic backsliding’ (see Waldner and Lust, 2018), in which seemingly consolidated democracies have regressed into more or less authoritarian, illiberal democracies, thus producing a new constitutional status quo. As noted before, the primary objectives of backlash movements in these countries are substantive rather than procedural. What seems to have happened is that democratically elected parties and leaders sought to put away obstacles that stood in the way of their agendas, thereby causing ‘collateral’ damage to democracy and the rule of law. As Levitsky and Ziblatt (2018) point out, ‘[b]ecause there is no single moment – no coup, declaration of martial law, or suspension of the constitution – in which the regime obviously “crosses the line” into dictatorship, nothing may set off society’s alarm bells’ (Levitsky and Ziblatt, 2018: 6).

The backlash against the EU may be another example of a looming redefinition of the status quo (see Kriesi, 2020). The integration process and the institutions of the EU can be and are criticised on both substantive and procedural grounds. As Kriesi (2020) argues, the substantive criticism that is aimed at austerity requirements and the lack of solidarity and redistribution and which is voiced predominantly in Southern Europe and by left-wing parties and politicians does not constitute a backlash, but rather a case of ordinary and legitimate contestation on the basis of procedural consensus on the European project as such. By contrast, the assault against the EU that is led by right-wing populists in Northern and Western European countries has procedural implications that puts to question the European project and the idea of supra-national decision-making as such, and in this sense qualifies as a backlash movement.

The much-feared landslide victory of right-wing populist anti-immigration parties did not happen in the 2019 European Elections, however. On the contrary, results lend credence to the emergence of a new cleavage being created within existing national and transnational political structures. On one side of this cleavage, we find more or less populist parties and movements influenced by communitarian ideology that pursue backwards-oriented and nationalist agendas. On the other side, liberal-green pro-European movements and parties with a cosmopolitan outlook are gaining strength and influence, while centrist catch-all parties have been struggling to find a new role (see Zürn, 2018; Zürn and De Wilde, 2016). In the 2020 coronavirus crisis, however, support for governing parties such as the centre-right Christian Democrats in Germany has soared, while populist parties and governments such as Boris Johnson’s in the United Kingdom and Donald Trump’s in the United States have lost backing and credibility. Nonetheless, the permissive consensus with which Europeans used to attend the integration process and that has been dwindling for years may well be lost if coordinated and effective measures to ameliorate the effects of the crisis fail. It seems likely that deficits of both European and national democratic institutions and decision-making procedures will be more vigorously addressed, thus enabling a politicisation of institutional design. As long as the consensus on foundational principles of democratic decision-making and interaction can be maintained, a considerable degree of contestation and rigorous assessment of existing institutions and procedures seem possible once backlash politics has lost some of its destructive energy.

It may then be possible to move arguments and conflicts to a meta-level and to address the institutional biases and deficits as well as the discursive disturbances that undermine the procedural consensus and hence substantial decision-making capacity (see Landwehr, 2015). In such meta-deliberative processes, destructive energies could in an ideal case be turned into more productive ones that enable democratic reforms and a renewal of the procedural consensus. However, this hope may just as well be too optimistic. Any attempt to heal disturbances by moving communication to a meta-level only promises success where those individual citizens whose retrograde desires and resentments are mobilised into backlash politics are concerned. The political entrepreneurs who mobilise and channel such emotions, by contrast, have no interest in reconciliation, as their influence and survival depend upon the backlash movement not losing momentum. It is to be assumed that the agents of backlash are not driven by emotions, but by profane self-interest. Thus, there is no easy way in which a procedural consensus could be (re-)established with the leaders of backlash movements and in which they could be won back to pluralist politics. Instead, attempts to heal disturbances and to reaffirm fundamental norms of interaction would have to focus on their individual voters and supporters and would thus have to be multitudinous, dispersed and spontaneous rather than fully coordinated. But in the political context, whether or not things can be changed will always depend upon the actions and decisions of others – in this sense, fighting back against backlash and securing a procedural consensus is a collective action problem.