Table of Contents
II. Theorizing Stealth Authoritarianism
A. Authoritarianism, Democracy, and Hybrid Regimes
III. Mechanisms of Stealth Authoritarianism
1. Consolidating Power
2. Bolstering Democratic Credentials
3. Avoiding Accountability
1. Voter Registration Laws
2. Electoral Barriers to Entry
3. Campaign Finance Laws
E. Surveillance Laws and Institutions
F. Bolstering Domestic and Global Legitimacy
1. Space for Discontent
2. Democratic Reforms and Democratic Rhetoric
IV. Rational Choice and Stealth Authoritarianism
A. Implementing Stealth Authoritarianism
B. Choosing Stealth Authoritarianism
1. The United States and Other International Actors
a. The United States
b. Other International Actors
2. Domestic Actors
3. Incumbent Officeholders
C. Regime Types and the Cost-Benefit Calculus
Stealth Authoritarianism
The post-Cold War international crackdown on transparently authoritarian practices provided significant incentives to avoid
them. Much like a virus that mutates
to adapt to new antidotes, authoritarians
or would-be { Authoritarians } learned to { play by the same rules } that exist in democratic governments. Although laws have always been valuable tools in an autocrat’s arsenal, modern authoritarians began to { deploy } to a much greater extent than their historical predecessors, the { same laws } and { legal institutions } that exist in democratic regimes for anti-democratic purposes. In so doing, the new generation of (authoritarians cloak repressive measures under the mask of law, imbue them with the veneer of legitimacy, and render authoritarian practices much more difficult to detect and eliminate.) In the modern era, authoritarian wolves rarely appear as wolves. They are now clad, at least in part, in sheep’s clothing.
Defending Our Constitution Requires More Than Outrage
{ Many government efforts to subvert
democracy are “legal”} ,
democracy are “legal”} ,
in the sense that they are
{ approved by the legislature or accepted by the
courts }
They {
may even be portrayed as efforts to improve democracy }
…making the judiciary more efficient, combating corruption or
cleaning up the electoral process.
Newspapers still publish but are bought off or bullied into self-censorship. Citizens continue to criticize the government but often find themselves facing tax or other legal troubles. This sows public confusion.
{
People do not immediately realize what is happening
}
Many continue to believe they are living under a democracy.
Because 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 }
Those who denounce government abuse may be dismissed as
exaggerating or crying wolf.
{ Democracy’s erosion is, for many, almost imperceptible }
Steven Levitsky and Daniel Ziblatt
I. Introduction
“For my friends, everything. For my enemies, the law.”
-
Óscar Benavides, former Peruvian President
Authoritarianism brings to mind repressive
dictators
to the likes of Adolf Hitler, Joseph Stalin, and Saddam Hussein.
Historically,
authoritarians
deployed their massive security apparatus to;
- torture and murder dissidents,
- jail journalists,
- rig elections, and
- shut down courts and legislatures.
They disregarded laws and constitutions
and systematically engaged in numerous ~
extra-legal and extra-constitutional efforts
~ to eliminate horizontal and vertical checks on their
power and perpetuate their rule.
The Cold War ushered in;
an era of expansive democracy-promotion programs
intended to detect and eliminate these transparently authoritarian practices.
The United States enacted numerous laws and regulations to promote
democracy, and by 1998, it had set up democracy-promotion programs in more
than 100 countries. Non-governmental organizations (“NGOs”) also joined the democracy-promotion chorus, working on the ground to
ensure the implementation of democratic laws, constitutions, and legal
institutions. Democracy clauses were placed in
international agreements to
sanction regimes that assume power through extra-legal means.
Those measures significantly raised the costs of maintaining transparently repressive regimes and led to the elimination of many authoritarian governments.
In the late 1980s and the early 1990s, dictatorships collapsed across post-communist Europe, Asia, and Latin America.
According to the Freedom House, the percentage of countries determined to be “not free” decreased from 46% in 1972 to 24% in 2012. At the same time, multiparty elections—the centerpiece of democracy—spread across the globe.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - -
The post-Cold War international crackdown on
transparently authoritarian
practices provided significant
incentives to avoid them.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - -
Much like a virus that mutates to adapt to new antidotes,
authoritarians or would-be authoritarians
learned to play by the same rules that
exist in democratic governments.
Although laws have always been valuable tools in an autocrat’s
arsenal,
modern authoritarians began to deploy, to a much greater extent than their historical predecessors, the same laws and legal institutions that exist in democratic regimes for anti-democratic purposes.
In so doing; the new generation of authoritarians
- [ cloak repressive measures under the mask of law,
- [ imbue them with the veneer of legitimacy, and
- [ render much more difficult to detect and eliminate.
In the modern era,
authoritarian wolves rarely appear as
wolves.
They are now clad, at least in part, in sheep’s clothing.
They are now clad, at least in part, in sheep’s clothing.
The scholarly comprehension of authoritarianism has failed to keep pace
with the evolution of authoritarian regimes. The burgeoning
literature on authoritarianism has focused primarily on traditional,
more transparent mechanisms of authoritarian rule.
These mechanisms include;
- overtly defying or disregarding laws and constitutions;
- imposing emergency laws or martial law;
- silencing dissidents through harassment and violence;
- shutting down newspapers and television stations;
- banning publications;
- manipulating the vote count through vote buying, intimidation, and electoral fraud;
- disregarding or evading term limits;
- packing courts and other state institutions with loyalists;
- establishing direct control over the media and civil society; and
- amending or replacing constitutions to eliminate checks and balances on their power.
As voluminous as this literature is, it suffers from a blind spot. The
existing scholarship has been
preoccupied with fairly transparent mechanisms of authoritarian
control detected relatively easily by both domestic and international
actors.
But there exists comparatively little scholarship on
the new, more subtle, mechanisms of authoritarian
control that rely on the same legal rules that exist
in regimes with favorable democratic credentials.
This Article fills that academic void by offering a comprehensive,
cross-regional account of that phenomenon, which I term “stealth authoritarianism.”
cross-regional account of that phenomenon, which I term “stealth authoritarianism.”
Stealth Authoritarianism - serves as a way to protect and entrench power when direct repression is not a viable option.
Stealth authoritarian practices use the law to entrench the status quo, insulate the incumbents from meaningful democratic challenges, and pave the way for the creation of a dominant-party or (one-party state).
The Article discusses
the primary mechanisms of stealth authoritarianism
and how they
(differ from traditional strategies)
of authoritarian control.
For example,
For example,
- instead of jailing journalists or shutting down media outlets, incumbent politicians sue them for libel, which raises the costs of critical commentary.
- Rather than imprisoning political opponents without due process, they prosecute them for violations of the existing criminal laws.
- They employ seemingly legitimate and neutral electoral laws, frequently enacted for the purported purpose of eliminating electoral fraud or promoting political stability, to create systematic advantages for themselves and raise the costs to the opposition of dethroning them.
- Often with the backing of international organizations, they adopt surveillance laws and institutions with the purported purpose of combatting organized crime and terrorism, but use those laws to blackmail or discredit political opponents.
- They rely on judicial review, not as a check on their power, but to consolidate power.
- To shape perceptions and deflect attention from anti-democratic practices, they frequently enact democratic reforms and invoke rule-of-law rhetoric.
The Article makes - (three primary contributions) - to the
scholarship.
First, the Article adds to a growing body of literature that analyzes how modern authoritarian governance - relies on formal rules - far more
than has been appreciated. Much of the literature assumes that authoritarians and would-be authoritarians primarily rely on
informal mechanisms of coercion and control to perpetuate
their power and that formal rules and institutions are of limited
utility to them. Stealth authoritarianism, which utilizes formal legal mechanisms for anti-democratic purposes, bucks this conventional wisdom.
In focusing on the use of formal rules as mechanisms of stealth authoritarianism, I do not suggest that informal mechanisms of control play an insignificant role in modern authoritarian governance. To the contrary, informal mechanisms still remain significant and often work in combination with formal mechanisms of control to enable political monopoly. The Article’s primary focus is on formal mechanisms of control because the authoritarian reliance on formal rules—particularly sub-constitutional rules that exist in regimes with favorable democratic credentials—has been undertheorized in the literature.
Second, the Article aims to orient the scholarly debate towards - regime practices, rather than regime types. The existing literature conceives of regimes as democratic, authoritarian, or hybrid regimes that exist somewhere in between. These labels, though certainly helpful for categorical purposes, can also cause conceptual confusion and obscure anti-democratic practices that exist in those regimes placed on the democratic side of the scale. Stealth authoritarianism is not a new regime type. Rather, stealth authoritarianism refers to government practices, analyzed in detail below, which render that regime less democratic than it was before. The tendency to entrench political power and lock up the political marketplace also exists in democratic regimes, which can manifest itself through the use of stealth authoritarian practices, albeit to a lesser extent than nondemocracies. Throughout, the Article draws attention to instances of stealth authoritarianism in regimes with favorable democratic credentials, including the United States. In so doing, the Article informs important questions in legal theory by demonstrating the limits of democratic processes and their vulnerability to abuse.
Finally, existing democracy-promotion mechanisms in the United States and elsewhere are of limited use in detecting stealth authoritarian tactics. Paradoxically, these mechanisms, which narrowly search for obvious democratic deficiencies through one-size-fits-all checklists, have provided legal and political cover to stealth authoritarian practices and created the very conditions in which these practices thrive. Although these checklists are efficient and work relatively well in detecting traditional, more transparent mechanisms of authoritarian control, they are much less effective in detecting the subtle reconfigurations of the political order that stealth authoritarianism effectuates. The prevailing democracy-promotion mechanisms have thus facilitated a certain level of authoritarian learning that has prompted the replacement of transparently authoritarian mechanisms with more stealth mechanisms of control.
The remainder of the Article proceeds in three parts.
Part II elucidates the concept of stealth authoritarianism.The Article concludes by discussing the implications of stealth authoritarianism for scholars and policymakers.
Part III examines the most prominent mechanisms of stealth authoritarian governance.
Part IV then discusses three related theoretical questions: (1) What conditions enable stealth authoritarianism? (2) Why do political leaders deploy mechanisms of stealth authoritarianism, as opposed to more traditional, and overt, mechanisms of authoritarian control? and (3) What regime types are more likely to adopt stealth authoritarian practices?
Interview with -
Ozan O. Varol
- Trends in Modernity
II. Theorizing Stealth Authoritarianism
The study of political regimes is marked by “[t]he proliferation of
modified terms and . . . conflicting definitions.” Because this is an
area where precise use of terminology is important, I begin with
definitional and theoretical preliminaries. Part II.A defines
authoritarianism and democracy and briefly summarizes the burgeoning
literature on hybrid regimes that describes governments that lie
somewhere between those two conceptual extremes. Part II.B introduces
and begins to elucidate the concept of stealth authoritarianism.
A. Authoritarianism, Democracy, and Hybrid Regimes
As Larry Diamond and his co-authors have observed, the boundary between
democratic and nondemocratic regimes is “a blurred and imperfect one.”
To navigate that blurred boundary, most scholars have adopted a
continuum approach to conceptualizing democratic and nondemocratic
regimes. If regime types are placed on a one-dimensional conceptual
continuum, authoritarianism and democracy would appear at the polar ends
of that continuum.
Authoritarianism traditionally refers to a legal order in which there
is little or no political pluralism and the incumbent party acts, “via
legal or extra-legal means, to suppress political opposition. . . . The
ruling leader or leaders often lack an elaborate and guiding ideology
and exercise power within ill-defined norms.” Corruption is rampant, as
is abuse of state resources. In authoritarian regimes, it is
prohibitively difficult to unseat the incumbent party through elections.
Regime change is possible primarily through a pacted transition,
revolution, coup, or foreign intervention.
On the other end of the continuum is democracy. Democracy itself exists
on a continuum, with procedural democracy and constitutional democracy
on polar ends. A procedural democracy, under Samuel Huntington’s
definition of the term, is a regime in which political leaders are
selected through free and fair elections. Robert Dahl defines procedural
democracy in slightly more demanding terms that feature four key
attributes: (1) free, fair, and competitive elections; (2) universal
adult suffrage; (3) protection of civil liberties necessary to
facilitate free and fair elections, including freedom of speech, press,
and association; and (4) the absence of unelected tutelary institutions
(e.g., the military) that limit the authorities of elected leaders. Even
more demanding is a “constitutional democracy,” which is often
interchangeably referred to as a “liberal democracy.” A
constitutional democracy contains both a procedural and a substantive
component. Although definitions vary, a constitutional democracy
ordinarily refers to a pluralistic legal order where multiple opposition
parties compete for the incumbent seat in free and fair elections, the
electoral playing field is reasonably level, protection of civil
liberties is high, a robust civil society exists, and state actors
respect the legal-constitutional boundaries that restrain them.
Recently, there has been a burgeoning literature that examines regimes
that lie somewhere between the polar ends of the
democracy–authoritarianism continuum and combine features of both.
Scholars have branded these regimes “competitive authoritarianism,”
“electoral authoritarianism,” “semi-authoritarianism,” “hybrid regimes,”
or “Frankenstates.” Although definitional differences exist between
these brands, most bear the same hallmark: Multiparty electoral
competition is real but unfair because the incumbents enjoy systematic
advantages vis-à-vis their opponents. As a result, the incumbents tend
to stay in power indefinitely and a core purpose of
democracy—competitive elections and the resulting turnover of government
power—becomes significantly impaired.
B. Stealth Authoritarianism
I describe the mechanisms of stealth authoritarianism in the next Part,
but the concept can be articulated here briefly: Stealth
authoritarianism refers to the use of legal mechanisms that exist in
regimes with favorable democratic credentials for anti-democratic ends.
Although the various ends that incumbent officeholders pursue are not
always clear, anti-democratic ends, as used here, refer to the erosion
of “partisan alternation,” defined as the cycling of political power
among more than one party. Turnover in government control is a core
component of democracy and evinces an electoral system that responds to
change in electoral preferences and confirms that “[t]he incumbent[s] .
. . can be dethroned.” The erosion of partisan alternation can, in turn,
enable the creation of a political monopoly.
Stealth authoritarianism undermines partisan alternation by
significantly increasing the costs of unseating the incumbent. Through
the practices described below, stealth authoritarianism erodes
mechanisms of accountability, weakens horizontal and vertical checks and
balances, allows the incumbents to consolidate power, exacerbates the
principal–agent problem by curtailing the public’s ability to monitor
and sanction government policies, and paves the way for the creation of
a dominant or one-party state where the electoral field is uneven and
the incumbent enjoys systematic advantages. These practices make it
significantly more difficult to dethrone the incumbents and undermine a
core component of democracy: free, fair, and contested elections and the
resulting turnover in government control. In other words, as a result of
stealth authoritarian practices, partisan alternation might not occur
even in the face of changing political preferences by the
electorate.
Stealth authoritarianism creates a significant discordance between
appearance and reality by concealing anti-democratic practices under the
mask of law. In so doing, stealth authoritarian practices avoid, to a
great extent, the costs associated with transparently authoritarian
practices that are much more likely to draw the opprobrium of both the
domestic and the international community. Practices that appear clearly
repressive in a transparently authoritarian regime appear more ambiguous
in a regime that employs stealth authoritarian practices.
This is not to suggest that stealth authoritarian practices go
completely unnoticed. As discussed in Part III, some cases of stealth
authoritarianism are not so stealthy in that they draw the attention and
opprobrium of the relevant domestic and global actors. The mechanisms of
stealth authoritarianism are, however, relatively more difficult to
detect than transparently repressive authoritarian strategies. Because
stealth authoritarianism relies on the exercise of legal mechanisms that
exist in regimes with favorable democratic credentials, it becomes more
difficult to differentiate between their abuse and legitimate
application.
Although stealth authoritarianism utilizes legal mechanisms that exist
in regimes with favorable democratic credentials, these mechanisms are
not always verbatim replicas of their democratic counterparts. In some
cases, the relevant laws may be subject to subtle reconfigurations that
deviate in meaningful ways from those laws typically found in
democracies. I examine these differences below in discussing the
mechanisms of stealth authoritarianism. In some cases, however, the
deviations from the typical democratic laws also exist in one or more
established democracies, so that the deviation does not appear
transparently anti-democratic. For example, as discussed below, Russia
has criminalized defamation, which represents a deviation from the
non-criminal nature of defamation in most democracies. But criminal
defamation laws also exist in a number of regimes with favorable
democratic credentials, such as Canada, Italy, and the United States.
The criminalization of defamation by established democracies allows
Russian officials to rebut any criticism directed at their criminal
libel laws by citing prominent democracies that also deviate from the
norm.
Although underexamined in the literature, formal rules are not entirely
foreign to authoritarian governance. Historically, authoritarian leaders
used formal rules to constrain rogue bureaucratic agents who operated
the government. They also used the legal system to maintain control over
the populace. In other words, laws were deployed, not to regulate and
constrain the government, but to enable it to constrain others and
ensure their compliance with government authority. Commentators have
referred to this as the “rule by law” tradition, in contrast to the
“rule of law” tradition in modern democracies. The formal rules in
rule-by-law regimes typically reflect their authoritarian nature with
“brutal candor.” For example, the Saudi Arabian Constitution requires
the media to “employ civil and polite language” and conform their
publications to state regulation. Likewise, the first constitution of
the Soviet Union committed the state to “deprive[] individuals and
sections of the community of any privileges which may be used by them to
the detriment of the Socialist Revolution.” Pre-modern China and, to a
lesser extent, pre-modern Korea are also good illustrations of a
rule-by-law regime.
This Article’s focus is different. Formal rules in rule-by-law regimes
transparently express their authoritarian nature. In contrast, the
mechanisms described in this Article obscure anti-democratic practices
under the appearance of legal mechanisms that exist in regimes with
favorable democratic credentials. Through the more complex, and more
interesting, phenomenon of stealth authoritarianism, modern-day
authoritarian practices are becoming increasingly more difficult to
detect and eliminate for both domestic and global actors.
The full story, however, is more nuanced. Modern authoritarian
governments have not completely abandoned traditional, more transparent
mechanisms of authoritarian control. Even in the case studies I discuss
in the next Part, stealth authoritarian mechanisms are sometimes
complemented by more transparently authoritarian strategies of control.
Later in the Article, I analyze, drawing on rational-choice theory, why
political leaders may adopt stealth authoritarian practices, how they
are able to do so, and which types of regimes are more likely to benefit
from the adoption of stealth authoritarian practices. But first, I
discuss the mechanisms of stealth authoritarianism.
III. Mechanisms of Stealth Authoritarianism
In this Part, I analyze the primary mechanisms of stealth
authoritarianism. This is not meant to be an exhaustive list of all such practices;
rather, I focus on the most prominent examples.
- Part III.A - analyzes the use of judicial review to consolidate power.
- Part III.B - discusses the use of libel lawsuits against dissidents to create a culture of self-censorship.
- Part III.C - studies the adoption of electoral laws, such as voter identification laws, electoral barriers to entry, and campaign finance laws, to disenfranchise the opposition and raise the costs of unseating the incumbents.
- Part III.D - analyzes the use of non-political crimes, such as laws criminalizing tax evasion or embezzlement, to prosecute political dissidents.
- Part III.E - explains the use of internationally-backed surveillance laws and institutions to blackmail or discredit political dissidents.
- Part III.F - discusses the enactment of democratic reforms and use of rule-of-law rhetoric to shape perceptions and deflect attention from anti-democratic practices.
Each Subpart first explains the applicable theory and then
illustrates the theory through case studies.
A. Judicial Review
Judicial review is ordinarily assumed to be a check on the political
branches of government. In this Subpart, I discuss three ways in which
judicial review may function as a tool of stealth authoritarianism.
Specifically, I analyze how judicial review may serve as a mechanism
for consolidating power, bolstering the democratic credentials of the
incumbent regime, and allowing the incumbents to avoid political
accountability for controversial policies.
1. Consolidating Power
Tom Ginsburg and Ran Hirschl have set forth separate theories on why
political elites may choose to create and empower autonomous courts.
According to Professor Ginsburg’s “insurance model” of judicial
review, if politicians drafting a new constitution “foresee themselves
losing [power] in postconstitutional elections, they may . . .
entrench judicial review [in the constitution] as a form of political
insurance.” Even if the constitutional drafters lose the elections,
another avenue—judicial review—remains available to challenge
legislation passed by their opponents. Likewise, Professor Hirschl has
argued that threatened political elites transfer power from political
institutions to the judiciary to preserve their political hegemony and
entrust their policy preferences to unelected judges who share the
elites’ ideology and shield the elites’ policies from the vagaries of
domestic politics. Even if the political elites lose power, unelected
judges continue to enforce the elites’ policy preferences via judicial
fiat.
Unlike the elites in Ginsburg’s and Hirschl’s models who empower a
judiciary because they may lose power, my focus is on elites who
desire to retain power indefinitely. At first blush, the creation of
an autonomous judiciary may appear inconsistent with that quest. After
all, the judiciary, empowered with judicial review, can strike down
anti-democratic legislation and expand individual rights and liberties
related to the democratic process, thereby leveling, at least to some
extent, the unlevel electoral playing field that may be crafted by the
incumbents. That account, however, underestimates the extent to which
judicial institutions can be structured to generate substantive
outcomes that favor regime interests. The structure of the courts, the
appointments process, and the rules of access to judicial review can
all be adjusted to further the interests of the incumbents.
The creation of the Turkish Constitutional Court is illustrative. The
15-member court was created following a military coup in 1960. The
military leaders structured the appointments process to the Court to
ensure, to the extent possible, the appointment of justices favorable
to their interests. According to the Constitution, which was drafted
under military tutelage:
Eight of the fifteen permanent members would be selected by other
appellate courts (Council of State, High Court, and Court of
Accounts), three by the Parliament, two by the Senate, and two by the
President of the Republic. The power to select a majority of the
members on the Constitutional Court was thus given to the unelected
judiciary, whose members were more likely to be aligned with the
military’s policy preferences than were elected political
actors.
To be sure, judicial autonomy can be a double-edged sword for the
incumbent regime. Judiciaries may disappoint the leaders that
established them or appointed their members. Judicial institutions can
turn the relative autonomy provided to them against the political
elites and challenge their policies and shed light on stealth
authoritarian practices. In addition, any regime attempts to penalize
the judiciary for unfavorable rulings may backfire by damaging regime
credibility. For example, in Pakistan, Chief Justice Muhammad Chaudhry
publicly resisted General Musharraf’s attempts to remove him from
office in 2007, damaging Musharraf’s credibility and legitimacy.
Likewise, the impeachment of Peruvian Constitutional Court judges for
attempting to limit President Fujimori’s third term in office sparked
major protests and drew the opprobrium of the international
community.
Although occasional judicial resistance remains a real possibility,
consistent counter-establishment jurisprudence is unlikely. Judges are
strategic actors. They do not operate in a vacuum. The judiciary is
influenced by the political environment in which it operates, and
judges are unlikely to engage in a sustained resistance effort against
powerful incumbents. As Professor Hirschl explains, “When
contemplating highly charged political questions, constitutional
courts—as a result of a combination of their members’ ideological
preferences and their own astute strategic behavior—tend to adhere
closely to prevalent worldviews, national meta-narratives, and the
interests of influential elites when dealing with political
mega-questions.” The judiciary, whose structure may have been
established or shaped by the incumbents or many of whose members may
have been appointed by them, may thus turn out to be a reliable
partner on questions of particular importance in protecting the
political status quo.
For example, Vladimir Putin deployed judicial review to help
consolidate his power in Russia. For the purported purpose of creating
a unified political space, he authorized federal courts to nullify
regional laws inconsistent with the federal constitution. That
authorization appears, at least on its surface, to be nothing more
than a neutral, straightforward assertion of vertical federal
supremacy and is consistent with the models in other federal states,
including the United States. According to Putin, the new federal
judicial authority to strike down regional laws would thus merely
reemphasize “Russia’s commitment to ‘legality and the state.’” The
Russian federal courts deployed their newfound power with zeal and
struck down thousands of regional laws. The elimination of those
regional laws allowed Putin to centralize and consolidate his power
and reduce the vertical checks on his power by regional
governments.
Putin also enlisted support from the Russian Constitutional Court and
its chairman, Valery Zorkin. Once “[d]escribed as ‘Russia’s answer to
Chief Justice John Marshall,’” Zorkin had unsuccessfully strived to
preserve constitutional legality during the strife between Boris
Yeltsin and the Russian Parliament. The Zorkin court struck down as
unconstitutional Yeltsin’s 1993 decree disbanding the Parliament, and
Zorkin himself openly criticized Yeltsin for his disregard of the rule
of law. After assuming the presidency, Putin commended the Zorkin
court’s decision against Yeltsin, stating that the court had
legitimately fought back against “politicians who appeal to political
expediency rather than the standards of law.” The current Russian
Constitutional Court, chaired by Zorkin, paid back Putin’s
commendation in spades. Recent Constitutional Court opinions upheld
pro-government legislation, such as a law that gives the President the
authority to appoint regional governors, on the basis that Russia
needs a strong executive amidst a fragile transition process to
democracy.
To gain their acquiescence, incumbents may also strategically reward
judges with increased authorities, especially in areas of little
importance to political control. For example, Zorkin’s support for the
Putin government has regained the court many of its former
authorities. The same errant executive power against which Zorkin
rallied in the 1990s became more palatable once the same power was
exercised to bolster the authorities of Zorkin and his court.
Judicial review may also be established to maintain control over the
state’s often unwieldy administrative hierarchy and mitigate
principal–agent problems that arise when the lower-level
administrative agents fail to act in the best interests of the
principal, the incumbent officeholders. Avenues for judicial relief
may permit challenges to the actions of bureaucratic subordinates,
which serve two purposes. First, judicial review of administrative
actions provides a legitimizing function, especially in states where
corruption or abuse of state resources may be commonplace. Judicial
review provides the appearance, if not the reality, of some level of
relatively neutral checks on errant administrative practices. Second,
it also allows regime elites to monitor the actions of subordinate
administrative agents and discipline them where necessary, thereby
mitigating the principal–agent problem.
A relatively autonomous judiciary may thus be helpful in
consolidating authority and retaining political power. A judiciary so
empowered can safeguard the interests of the authoritarian elites even
where the elites are deposed. For example, the Mubarak appointees in
Egypt’s courts have rendered a number of decisions in the post-Mubarak
era—such as a recent decision that bans the Muslim Brotherhood—that
appear to promote political configurations that existed during the
Mubarak autocracy.
2. Bolstering Democratic Credentials
In addition to enlisting the courts in order to consolidate control,
judicial review can also be used to bolster democratic credentials at
home and abroad. Judicial review portrays the constitutional framework
to the world as one imbued with checks and balances on arbitrary rule,
especially where the judiciary enjoys a better reputation than the
political branches as a relatively neutral, impartial body. That, in
turn, serves to promote the regime’s image before domestic and global
audiences and allows the regime to cite independent judicial review to
rebut any criticism regarding anti-democratic practices.
For the judiciary to serve that legitimizing function, it must enjoy
relative autonomy from the political branches and must, at least
occasionally, act against the wishes of the incumbent regime.
Incumbents might thus tolerate, or perhaps even welcome, adverse
decisions by the judiciary to maintain the veneer of checks and
balances, so long as the judiciary does not pose a real threat to
central areas of political control. For example, under Mubarak, the
Egyptian judiciary enjoyed a large measure of judicial independence
until the early 2000s. The court enjoyed structural autonomy from the
political branches and also selectively wielded the power of judicial
review to expand and protect individual liberties. The court also
found electoral fraud in hundreds of elections and required judicial
supervision of the 2000 elections. Remarkably, the Mubarak government
complied with these decisions. At the same time, however, it largely
refrained from accepting any challenges to emergency laws or the trial
of civilians in military tribunals, which were the primary tools of
authoritarian control in Egypt. Likewise, the same Zorkin court that
upheld Putin’s reform agenda, as discussed above, also accepted a
number of constitutional challenges to criminal laws and surveillance
laws that target members of the opposition.
The legitimacy provided by autonomous courts may also be helpful in
attracting foreign investment and trade. Judicial review can provide
legal assurances to foreign investors by protecting property rights
and ensuring stability in the economic sphere, especially in regimes
with some level of government corruption. For that reason, the World
Trade Organization (“WTO”) requires judicial supervision in
trade-related areas, the establishment of which can convince a
skeptical international community to invest in a state, despite any
anti-democratic practices. For example, the Egyptian Constitutional
Court was provided interpretative power over the constitution in part
to attract foreign investment and assure international investors that
the court would deter any changes to a free market economy.
3. Avoiding Accountability
Judicial review can also be established to avoid accountability by
delegating controversial questions to the judiciary. By entrenching
its policy preferences in a relatively autonomous judiciary, the
regime can allow the judiciary to protect its interests, authorize
judges to issue controversial decisions that political elites approve
but cannot publicly champion, and insulate themselves from political
accountability in the process. For example, in a series of
controversial decisions, the Egyptian Constitutional Court overturned
socialist policies to the alacrity of the ruling elite, who avoided
the political backlash that would have resulted from the enactment of
the contentious reforms through the political process.
B. Libel Lawsuits
As early as 1765, John Adams wrote that “liberty cannot be preserved
without a general knowledge among the people, who have a right . . .
and a desire to know . . . the characters and conduct of their
rulers.” The media, non-profit organizations, think tanks, and other
independent groups play a crucial role as public watchdogs in
promoting government transparency by providing information and
critical commentary on the people’s representatives and their
policies.
Libel laws, which exist in various forms in all democratic countries,
have become a powerful legal tool for undermining the public’s ability
to monitor their political leaders. Although definitions vary, libel
generally refers to a written statement that defames others by
injuring their reputation. Deployed against dissidents, libel lawsuits
can raise the costs of criticism by exposing the speaker to a costly
libel lawsuit or a criminal libel prosecution, create a “chilling
effect” on speech, and thus lead to self-censorship of critical
commentary. A culture of self-censorship can undermine the public’s
ability to observe the incumbent politicians’ behavior, obtain
critical inquiry regarding the incumbents’ actions and inactions, and
mitigate the informational asymmetry between the regime and the
citizenry. That, in turn, curtails the public’s ability to effectively
reward or punish incumbent behavior, thereby tilting the electoral
field in favor of the incumbents and exacerbating the principal–agent
problem, which refers to the failure of the agents (the politicians)
to follow the best interests of the principals (the citizens).
Political debate is at the very core of a democratic society, and the
excessive use of libel lawsuits against political dissidents can
stifle political speech necessary to the healthy functioning of the
democratic marketplace. Even where the libel lawsuit does not succeed,
the costs of a protracted libel litigation can intimidate all but the
most well-funded opponents and deter critical commentary.
During the Civil Rights Movement in the United States, for example,
several Southern officials used libel lawsuits to silence critics and
curb media coverage of the civil rights struggle. The absence of
national media scrutiny would have allowed segregationists to crack
down on civil rights activism with impunity. For instance, by 1964,
Southern officials had filed numerous libel actions seeking a
cumulative $388 million in damages from various media outlets and
civil rights leaders. The Supreme Court’s famous First Amendment
decision in New York Times Co. v. Sullivan itself was a libel lawsuit
filed by Police Commissioner Lester Sullivan in Montgomery, Alabama,
against the New York Times, which had published an advertisement with
charges of police brutality against civil rights activists. Sullivan
and its companion cases sought a total of $5.6 million in damages,
which “threatened the financial solvency of the Times.” Libel lawsuits
also intimidated other publications, which could dispatch a reporter
to cover civil rights demonstrations in the South only under the
looming threat of a costly lawsuit. The U.S. Supreme Court’s decision
in Sullivan created a heightened threshold for libel lawsuits by
public figures and required them to establish actual malice (a knowing
or reckless disregard of the truth), curbing what might have been an
onslaught of libel suits against press coverage of the civil rights
movement.
In many cases, the use of libel laws to silence dissent is less
costly than overt repression. Oppression of dissidents through direct
harassment or violence admittedly is more efficient than a protracted
libel lawsuit through the judicial system, which may produce uncertain
outcomes. But the overt oppression of dissidents through non-legal
means can also damage the credibility and the legitimacy of the
government at home and abroad. A government’s response to free
expression with overt repression may serve to galvanize activists
against the government, strengthen their resolve, and allow them to
leverage the repression to obtain domestic and global resonance for
their movement. In Singapore, for example, banning a publication
typically increases its luster and provides grounds for attacking the
incumbents for restricting free speech. Likewise, in Turkey, the
government’s pre-publication seizure of a book titled The Imam’s
Army—which described the infiltration of the Turkish police force by
members of an Islamist movement—had the counterproductive effect of
drawing more attention to it. The text of the book was posted online
and was downloaded by more than 100,000 readers in one day, many of
whom may not have read the book without the publicity generated by its
seizure.
In contrast, the use of libel lawsuits is less likely to impose the
same costs on the regime as overt repression. To be sure, selective
use of libel laws towards dissidents, especially prominent
journalists, can also grab the attention of both domestic and global
audiences. Nevertheless, where the prosecution of the libel lawsuit
adheres to existing laws—as it often does—its use portrays the
curtailment of dissent as an application of the rule of law. That, in
turn, makes it more difficult to differentiate between legitimate
application and abuse. In addition, any opprobrium directed at the
regime can also be mitigated by the prosecution of libel cases through
a relatively autonomous domestic judiciary, as well as review of libel
judgments by a supranational court, such as the European Court of
Human Rights, for conformity with international norms.
The use of civil libel lawsuits against government critics has been
popular in modern-day Russia. Although there is no conclusive data on
the number of defamation lawsuits filed each year, some reports
indicate that between 5000 and 10,000 defamation cases are filed in
Russian courts annually. The Mass Media Defence Centre estimates that
approximately 60% of all defamation cases are filed against
journalists.
In addition to civil lawsuits, criminal charges are also often
brought against Russian journalists and media companies. After
Vladimir Putin returned to Russia’s presidency in May 2012, he
“reintroduced criminal liability for libel,” which had been
decriminalized by President Dmitry Medvedev in November 2011. Notably,
the bill was supported by the Moscow-based Russian Union of
Journalists. The Union Chairman explained that he is “categorically
against libelous and ordered articles” and those who write and publish
them “must be held responsible.” The law also permits the reopening of
libel prosecutions that “were suspended or scrapped” during Medvedev’s
term. Since 2004, Russian journalists convicted of defamation have
filed 36 claims before the European Court of Human Rights for
violations of Article 10 (freedom of expression) of the European
Convention on Human Rights. Russian authorities accept the
jurisdiction of the Court, albeit grudgingly, and pay any compensation
that may be awarded to the complainants. Yet, the Court has been
unable to prevent the onslaught of defamation lawsuits, which remain
prevalent.
Likewise, Turkey has recently experienced an upsurge of libel
lawsuits against government critics. During his term as Prime
Minister, Recep Tayyip Erdoğan
su[ed] perhaps hundreds of private individuals for insulting him . .
. [including] a student theater troupe that does skits wearing long
black hippie wigs; unemployed siblings who posted a song about Mr.
Erdoğan on the Internet; and a British teacher-cum-anti-Iraq war
activist-cum-fortune teller, who made a collage showing Mr. Erdoğan’s
head on a dog.
In July 2013, prominent journalist Ahmet Altan was fined 2800 euros
for insulting Erdoğan in an article. In another case, Erdoğan sued
columnist Mahir Zeynalov for his Twitter posts about a corruption
investigation that targeted several high-ranking government officials
in Turkey in December 2013. In May 2014, another prominent journalist
was sued for waging a “psychological campaign” to defame Erdoğan on
Twitter.
Turkey has also deployed other laws against journalists, including
ones that prohibit “‘breaching the confidentiality of an
investigation’ and ‘influencing a fair trial’ through news coverage.”
Many of these laws were carefully constructed to comport with the free
speech provisions in Article 10 of the European Convention on Human
Rights, which permits limitations on free speech “for the protection
of the reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.” In July 2012, in
response to European pressure, the Turkish government made largely
cosmetic changes to these laws but retains an extensive arsenal of
libel laws to use as sticks against criticism and dissent. That
arsenal, and its effects on media coverage, were on full display
during the widespread protests against the incumbent government in
summer 2013. On June 7, 2013, at the height of the protests, six
popular mainstream newspapers published identical headlines, all
trumpeting Erdoğan’s commitment to democracy.
In Singapore, the incumbent government also tends to respond to
critical commentary “instantly and with enormous litigation efforts.”
These lawsuits have been successful in bringing several prominent
publications to heel. For example, to prevent an onslaught of libel
lawsuits, Dow Jones & Company apologized for several articles
published in the Asian Wall Street Journal in 1985, 1986, and 1989 and
withdrew articles in Far Eastern Economic Review, another
Dow-Jones-owned publication. Likewise, the International Herald
Tribune, owned by the New York Times and Washington Post, issued
apologies for published articles, and libel lawsuits against The
Economist also produced withdrawals, apologies, as well as significant
libel judgments in 1993, 2004, and 2005. Libel lawsuits in Singapore
are particularly effective tools of stealth authoritarianism since
Singapore’s electoral rules prohibit people with undischarged
bankruptcies from assuming public office. For example, between 1971
and 1993, 11 opposition leaders declared bankruptcy after being sued,
becoming ineligible for public office.
Examples from other nations abound. In Malaysia, Prime Minister
Mahathir Mohamad launched a “suing craze,” using defamation suits to
silence dissidents. Likewise, the Cameroon government prosecuted 50
journalists for libel in the late 1990s and fined several newspapers
out of business. In Croatia, the government launched 230 libel suits
in 1997 against independent newspapers. In some nations—such as
Belarus, Cambodia, and Russia—the repeated use of libel lawsuits led
to the closure of many media outlets. In other cases—such as Malaysia,
Ukraine, and Turkey—the threat of libel lawsuits caused widespread
self-censorship, which in turn undermined the public’s ability to
monitor and sanction their leaders.
To be sure, the libel laws that exist in the above legal regimes are
not verbatim replicas of their democratic counterparts. The U.S.
Supreme Court, for example, imposes heightened proof standards in
defamation lawsuits on public figures, such as prominent politicians,
who must show that the defamatory statement was published with actual
malice. In contrast, in Singapore, both public and private figures are
subject to the same evidentiary requirements. Singapore’s approach
does not represent an extreme outlier, however, since a number of
legal regimes with favorable democratic credentials have also rejected
a heightened evidentiary standard for public figures in defamation
cases. For example, the High Court of Australia places the burden, not
on the public official, but on the speaker to prove that the published
information was true, it was not published recklessly, and the
decision to publish it was justifiable. The Australian approach has
been influential in a number of other jurisdictions, including South
Africa. Singapore’s electoral rules, which ban bankrupt individuals
from running for public office, are also not uncommon. As Mark Tushnet
observes, with the possible exception of a rule that imposes higher
damages for libel when the target is a public official, the
regulations that Singapore imposes on freedom of expression have
counterparts in nations generally considered constitutionalist.
Another variation in libel laws concerns their criminal nature.
Russia, for example, has both criminal and civil laws against
defamation. Defamation is not criminalized in many democratic regimes
and various international organizations have called for the abolition
of criminal defamation. There are, however, established democracies
with criminal defamation laws. As of 2005, 17 states and two
territories in the United States had criminal libel statutes.
Likewise, Italy and Canada criminalize defamation and the United
Kingdom did so until November 2009. The European Court of Human Rights
has also permitted member states to adopt criminal laws against
defamation. Although a criminal prosecution carriers a greater social
stigma, as well as the possibility of imprisonment, criminal
convictions also typically require a higher standard of proof and
juries can award, and have awarded, damages in civil lawsuits that
significantly exceed the maximum criminal fines for defamation.
C. Electoral Laws
A particularly fertile ground for stealth authoritarianism is the
structuring of electoral laws. As Richard Pildes explains, “democratic
processes must be structured through law, but those in control of
designing those laws are themselves self-interested political actors.”
Since these laws provide the basic rules of the democratic game, they
are ripe for manipulation by self-interested political leaders with a
mind to insulate themselves from meaningful democratic challenges.
Electoral laws regulate the conditions under which voting will occur,
the qualifications for appearing on the ballot and obtaining
legislative representation, the method for aggregating individual
votes, and a host of other decisions with significant consequences.
These laws can be reconfigured for the seemingly legitimate and
neutral purpose of eliminating electoral fraud or promoting political
stability in order to raise the costs of unseating the
incumbents.
To be sure, the prevention of fraud and the protection of political
stability are important state interests. Electoral fraud can itself
lead to the extra-legal entrenchment of power, and political
instability can create power vacuums, ushering in extra-legal changes
in government authority, such as a military coup. Some level of
regulation is thus necessary for the electoral system to function with
integrity. But magnanimous-sounding interests like fairness and
stability can also mask more insidious and anti-democratic purposes.
Although many electoral regulations—including well-worn methods like
gerrymandering of election districts—provide fertile grounds for
stealth authoritarianism, this Subpart discusses three
less-transparent sets of electoral laws that are particularly prone to
abuse: (1) voter registration laws; (2) electoral barriers to entry;
and (3) campaign finance laws.
1. Voter Registration Laws
Laws that regulate voter registration, which exist in virtually all
democratic nations to ensure electoral fairness, afford the
opportunity to disenfranchise portions of the population. For example,
an electoral law adopted in Zimbabwe by President Robert Mugabe
required urban residents, many of whom were strongly opposed to
Mugabe’s rule, to show “proof of residency . . . to register for the
2002 presidential elections.” That law had the effect of
disenfranchising thousands who lived with friends or family or did not
pay utility bills—a common form of proof of residency—because they did
not have electricity or running water.
Voter registration processes can also place prohibitive obstacles to
voting by those in rural areas located far from official registration
sites.
In some regimes, voters living in rural, often neglected, areas
of the country are more dissatisfied with the incumbent
government.
That dissatisfaction makes them a preferred target for
disenfranchisement through stringent registration processes that might
require rural voters to make multiple trips to distant registration
sites to register, pick up their registration cards, and then
vote.
Voter registration laws can also be deployed to discourage or promote
voting by the diaspora. Senegal, for example, establishes polling
stations in major American and French cities to allow its diaspora to
participate in elections because the Senegalese diaspora tend to
identify with the incumbents. In contrast, President Hugo Chavez
hampered the voting ability of dissident Venezuelan citizens residing
in Miami who were unlikely to support him. Likewise, refugees, who are
more likely to be dissatisfied with the incumbent government, can also
be excluded from voting on the facially neutral basis that they reside
outside the country.
Voter identification laws, which require voters to show proof of
identification to combat voter fraud, are also prone to abuse. These
laws exist in democratic nations, such as the United States, Germany,
and Canada, and are often adopted for the purpose of preventing
electoral fraud. But they can also be used to exclude opposition
voters from electoral participation. In many African nations, for
example, voter identification laws have been used to disenfranchise
ethnic minorities frequently denied formal identification or excluded
as citizens of other nations. The adoption of voter identification
laws in the United States has also given rise to concerns about
disenfranchisement. Democrats criticize these laws on the basis that
they disenfranchise the poor, who are more likely to support the
Democratic Party. Republicans, in contrast, argue that the laws are
necessary to prevent voter fraud.
2. Electoral Barriers to Entry
Electoral barriers to entry refer to those laws that set restrictions
on the ability of individuals and political parties to compete in
elections and obtain legislative representation. These barriers are
often enacted to prevent voter confusion and protect political
stability. Yet, they can also exclude new and emerging political
parties and candidates, protect the incumbents, and entrench the
political status quo.
Electoral thresholds are a good example of entry barriers. They refer
to the percentage of votes that a political party must attain in
national elections in order to obtain parliamentary representation.
Electoral thresholds exist in many democratic nations that have
adopted an electoral system of proportional representation, including
Austria (4%), the Czech Republic (5%), Germany (5%), and Greece (3%).
They are often introduced in the name of promoting stability in a
fractious political marketplace. Too much political competition and
too many small political parties can lead to the formation of weak and
unstable coalition governments and foment legislative deadlocks and
political instability.
Although these are important purposes, high electoral thresholds can
also curb political competition and unreasonably tilt the electoral
playing field towards the incumbents. High electoral thresholds skew
parliamentary representation because the seats awarded to the parties
that clear the threshold tend to be significantly disproportionate to
the number of votes they receive. Electoral thresholds may also set
prohibitively high entry barriers for new or emerging political
parties. These political parties must raise funds, organize, expand,
and obtain national visibility to become a viable alternative to
incumbents. Often, that is an incremental process. An emerging
political party may be unable to clear a high electoral threshold in
the first elections in which it participates. That, in turn, deprives
the party of national visibility that parliamentary representation
brings and places significant impediments to achieving national
recognition. The lack of national visibility increases the costs to a
political party of raising sufficient political funding to organize
and mount a political campaign capable of elevating the party above
the threshold. What is more, in nations with high electoral
thresholds, voters can be dissuaded from voting for emerging or
smaller parties on the basis that their “vote[s] will not count.”
These high entry barriers can award systematic advantages to the
incumbents and create a vicious cycle that can exclude at least some
opposition parties from the political marketplace.
For example, at 10%, Turkey’s electoral threshold is the highest in
the world. To obtain representation in the Parliament, a political
party must obtain at least 10% of the popular votes in the general
parliamentary elections. The electoral threshold was implemented in
the early 1980s for the purpose of bolstering legislative stability
following two decades of weak coalition governments. But the threshold
has also had the effect of significantly skewing parliamentary
representation in Turkey.
The November 2002 parliamentary elections are illustrative. Out of
the approximately 32 million votes cast, the Justice and Development
Party (Adalet ve Kalkinma Partisi) obtained approximately 11 million
votes and the Republican People’s Party (Cumhuriyet Halk Partisi)
received approximately six million votes. The remaining 15 million
votes were cast for parties that could not clear the threshold. Those
15 million votes were reallocated between the parties that cleared the
threshold, landing the Justice and Development Party 64% of the
parliamentary seats with only 34% of the popular vote.
Although the electoral threshold in Turkey has been subject to
domestic criticism, it was blessed by the European Court of Human
Rights. In 2008, the Court held that the 10% electoral threshold did
not violate the European Convention on Human Rights. The Court
reasoned that, so long as elections are free, are held by secret
ballot, and “ensure the free expression of the opinion of the people,”
member states are free to hold elections as they please. Applying that
principle, the Court held that the 10% threshold was within the margin
of appreciation afforded to Turkey, which, on the Court’s account, had
implemented the threshold for the legitimate aims of decreasing
legislative fragmentation and preserving a unitary state.
During his second term as Russian President, Vladimir Putin also
increased the electoral threshold from 5% to 7%. Various commentators
have argued that the threshold was increased to solidify United
Russia’s dominance over Russian politics. With United Russia in
control, Putin could comply with the two-term presidential limit by
stepping down from the presidential office in 2008 without risking his
reelection prospects when he ran for the presidential office in 2012
after a four-year term as Prime Minister.
Egypt provides yet another illustration. Under pressure from the
United States to liberalize the Egyptian political system, Hosni
Mubarak modified the presidential election process in 2005. The new
system provided that candidates could be nominated only from those
political parties that had been in existence for five years and had
received at least 5% of the seats in each chamber of the legislature.
The only political party that met the threshold was Mubarak’s party
(the National Democratic Party), but, pursuant to a waiver procedure
that applied only to the first elections held under the new system,
other political parties were permitted to nominate a candidate. The
adoption of these new electoral procedures allowed Mubarak to preserve
his political dominance while claiming to global audiences that he was
liberalizing Egypt’s political system. U.S. Secretary of State
Condoleezza Rice commended “the new [electoral] system as ‘one step in
the march towards the full democracy that the Egyptian people desire
and deserve.’”
3. Campaign Finance Laws
Campaign finance laws intended to curb foreign influence on the
domestic political process are common in many nations. In the United
States, for example, foreign nationals have been banned from making
political contributions and expenditures since 1966 with the enactment
of amendments to the Foreign Agents Registration Act (“FARA”). The
purpose of the amendments “was to minimize foreign intervention in
U.S. elections by establishing a series of limitations on foreign
nationals.” In 1974, the prohibition was incorporated into the Federal
Election Campaign Act, which now prohibits foreign nationals from
contributing, donating, or spending funds in any federal, state, or
local election, whether directly or indirectly. Foreign nationals are
also prohibited from directly or indirectly participating in the
decision-making process of any person, corporation, labor
organization, or political organization with regard to that entity’s
election-related activities, including decisions related to finances
and funding. In addition to these restrictions that apply to foreign
nationals, U.S. citizens are also prohibited from soliciting campaign
funds from foreign nationals and from providing “substantial
assistance” to foreign nationals to spend money in domestic
elections.
Although they exist in countries with favorable democratic
credentials, such as the United States, campaign finance laws intended
to curb foreign influence on the domestic political process have also
been deployed as a tool of stealth authoritarianism. These laws have
been frequently used to sanction or evict foreign NGOs that support
the domestic civil society or opposition groups. For example, in 2012,
Russia enacted a “foreign agents” law that requires nongovernmental
groups that receive foreign funding and engage in political activities
to register as “foreign agents.” Pursuant to that law, Russian
authorities launched audits of prominent NGOs, such as Memorial,
Amnesty International, Human Rights Watch, and Transparency
International, among others. In condoning the audits, President Putin
was careful to not admonish civil society activism. Instead, he stated
that the audits were motivated by rule-of-law concerns—to “check
whether the groups’ activities conform with their declared goals and
whether they are abiding by the Russian law that bans foreign funding
of political activities.” Pursuant to the same law, the Russian
government evicted the U.S. Agency for International Development
(“USAID”), which financed much of local civil society, on the basis
that USAID was impermissibly using foreign funds to influence Russian
elections. The Egyptian government likewise brought numerous charges
against dissidents for unlawfully accepting foreign funds and
instituted widespread crackdowns on NGOs for the purported purpose of
preventing the use of foreign funds to influence the local political
process.
Even where foreign funding of civil society organizations is
permitted, the government can impose excessive taxes on foreign
grants, as in Belarus. The pertinent regulations may also require that
the foreign funding be channeled through designated banks that may
refuse to release the funds to civil society groups, as in Uzbekistan.
These actions significantly raise the costs of political opposition by
demobilizing civil society groups and depriving them of critical
funding necessary to effectuate their purposes.
D. Non-Political Crimes
Another popular stealth authoritarianism strategy is the use of
non-political crimes to prosecute political dissidents. Prosecution
often involves selective, though legally accurate, application of the
existing criminal laws that do not overtly concern political
opposition, such as tax evasion, fraud, and money laundering. The
prosecutions are also often supported with sufficient evidence of
guilt, which makes it more difficult to detect whether the motive for
the prosecution is political. A non-political prosecution of a
dissident reduces the costs associated with overt repression, which
might draw domestic and international opprobrium. It also allows the
regime to portray the prosecution to domestic and global audiences as
an application of the rule of law. The legitimacy provided by a
non-political prosecution increases where the conviction is blessed by
a supranational arbiter, such as the European Court of Human
Rights.
This strategy is not new. Beginning in the late 1950s,
segregationists in the Southern United States began to use laws
unrelated to race to prosecute civil rights activists, including
disorderly conduct, trespass, disturbing the peace, defamation, and
tax laws. For example, Alabama prosecuted Martin Luther King, Jr., on
charges of “tax evasion and perjury related to the filing of his tax
forms.” Likewise, Virginia went after the NAACP under the façade of
enforcing legal ethics requirements.
A modern illustration is the conviction of former Russian oil
executive Mikhail Khodorkovsky for tax evasion and fraud. Khodorkovsky
drew the ire of the Putin government by funding opposition parties and
media critical of the Kremlin. In April 2003, Khodorkovsky confirmed
that he would leave the business world and enter politics himself in
support of the opposition. A few months later, in June 2003,
Khodorkovsky was charged with and later convicted of tax evasion and
fraud. He was sentenced to eight years in prison. In December 2010,
Khodorkovsky and former business partner Platon Lebedev were further
convicted of embezzlement for allegedly stealing 218 million tons of
oil and laundering $27 billion in proceeds between 1998 and 2003, and
sentenced to an additional term of six years in prison. Khodorkovsky’s
defense attorneys argued that the prosecution was politically
motivated and the resulting trial was tainted by judicial misconduct.
Yet, the Russian government largely prevailed before the European
Court of Human Rights. Although the Court found that the conditions
and process of Khodorkovsky’s detention violated the European
Convention on Human Rights, it found insufficient evidence that the
prosecutions were politically motivated.
The Khodorkovsky prosecution is an example of stealth
authoritarianism that received global visibility. His conviction
generated widespread international criticism, including from the U.S.
State Department. In December 2013, President Putin granted amnesty to
Khodorkovsky after he served ten years of his prison term in a thinly
veiled attempt to alleviate some of the criticism ahead of the Winter
Olympics. That amnesty, however, hardly addresses the bigger problem
of stealth authoritarianism in Russia, which has many more cases that
are less visible than the Khodorkovsky case.
In Turkey, tax audits and fines have become a popular tool for
punishing political dissidents. Most media companies in Turkey are
subsidiaries of larger corporations, which in turn allows the
government to reward corporations with loyal media subsidiaries with
government contracts and punish corporations with dissident media
subsidiaries with tax fines. For example, a $2.5 billion tax fine was
levied in 2009 against the largest media company, Dogan Media Group, a
few months after Prime Minister Erdoğan asked the Turkish public to
boycott its newspapers for publishing critical commentary. Although
the fine was reduced to approximately $600 million, the Group was
forced to downsize by selling two of the country’s largest newspapers
and its main television station.
Turkey’s largest company, the Koc Group, also became the subject of
tax audits after a hotel owned by the Koc Group offered refuge to
protestors escaping from tear and pepper gas during protests in summer
2013. In response, Prime Minister Erdoğan accused Koc Group of aiding
and abetting unlawful activities. A few weeks thereafter, the Ministry
of Finance raided the three major energy-sector companies of Koc Group
to conduct financial audits. Although the Ministry of Finance branded
the audits as “routine,” investors were more skeptical. The day after
the raids, all three companies registered losses on the Istanbul stock
market and the Koc Group is estimated to have lost approximately $930
million in one day. The audit could result in heavy fines and cause
the Koc Group to lose its energy licenses.
Other examples abound. In Malawi, President Bingu wa Mutharika
imprisoned his opponent, ex-President Bakili Muluzi, on corruption
charges. Likewise, in Ukraine, President Leonid Kuchma launched
corruption charges against Prime Minister Pavlo Lazarenko to derail
Lazarenko’s presidential bid. Finally, in the United States,
allegations of political bias have also been levied against the
Internal Revenue Service, which has been charged with selectively
targeting political opponents for increasing scrutiny under the guise
of enforcing the tax laws.
E. Surveillance Laws and Institutions
The attacks of September 11, 2001, ushered in a new era of
surveillance to combat organized crime and terrorism. In the United
States, for example, the enactment of the USA Patriot Act provided
additional surveillance authorities to federal government agencies.
Many other countries followed suit pursuant to Security Council
Resolution 1373, which requires states to change their domestic laws
to criminalize terrorism and enact certain surveillance measures.
Because these surveillance laws are often enacted with the imprimatur
of international organizations, they also enjoy a certain level of
legitimacy both domestically and internationally.
Despite the protections they offer, surveillance laws and
institutions can also be employed for two primary anti-democratic
purposes. First, surveillance can chill the exercise of civil
liberties. As Lilian Mitrou puts it, “Under pervasive surveillance,
individuals are inclined to make choices that conform to mainstream
expectations.” That inclination to support the status quo may impede
political and intellectual diversity and help protect and entrench the
incumbent’s stronghold on government power. In addition, the fear of
being watched by the government may cause people to think and speak
differently and foment self-censorship.
Second, governments can use surveillance mechanisms for blackmail.
Surveillance can permit the incumbents to gather information about
dissidents to blackmail them into silence or discredit them by
revealing sensitive, and perhaps embarrassing, secrets to the public.
In many post-communist states in Eastern Europe, for example, “secret
surveillance files are routinely turned into a weapon in political
struggles, seriously undermining democratic processes and freedoms.”
The information gathered through surveillance can also serve as
evidence to prosecute political opponents for non-political
crimes.
Financial surveillance laws have been a particularly expedient tool
of stealth authoritarianism. These laws are often enacted with the
backing of the Financial Action Task Force (“FATF”), an
intergovernmental body founded to “combat[] money laundering,
terrorist financing and other related threats to the integrity of the
international financial system.” The FATF serves as a policy-making
body that works to generate domestic legislative and regulatory
reforms in financial surveillance. To that end, the FATF has developed
a series of recommendations intended to be of “universal application”
to combat financial crimes. In addition to issuing recommendations,
the FATF also “monitors the progress of its members,” which include 34
countries and two regional organizations. The FATF’s mission expanded
considerably over time and most notably following the September 11,
2001, attacks. After September 11, the FATF specifically “urged its
member states to enhance their domestic financial surveillance” by
establishing “centralized financial intelligence unit[s].” These
units, according to the FATF, should be “operationally independent and
autonomous” and should “have access to the widest possible range of
financial, administrative and law enforcement information.”
Russia was among the nations that welcomed the FATF’s post-September
11 recommendations with alacrity. Russia had been blacklisted by the
FATF after being branded a haven for money laundering and financial
crimes. To eliminate that blemish, the FATF asked Russia to comply
with a number of demands, including the establishment of a financial
intelligence unit. Under Putin’s leadership, Russia then passed
comprehensive legislation intended to combat money laundering to
satisfy the FATF’s recommendations. In addition, Russia created a
financial intelligence unit—the Russian Financial Monitoring
Service—composed of KGB veterans subject to Putin’s formal control.
The Service was accepted to the Egmont Group, an international
umbrella group of financial intelligence units. Following the adoption
of these reforms, Russia became a full-fledged member of the FATF. The
Russian Financial Monitoring Service was praised by the FATF as
“exemplary” and listed in 2011 as among the world’s best financial
intelligence units. With the imprimatur of the FATF and the Egmont
Group, the Russian Financial Monitoring Service obtained legitimacy at
home and abroad and its establishment portrayed the image of a valiant
modern Russia taking a stance against its historical struggle with
financial crime. On July 1, 2013, the presidency of the FATF passed to
Russia.
Under the FATF-sanctioned façade of legitimacy, however, lies an
institution that bolsters Putin’s stronghold on Russian politics. From
its inception, the Russian Financial Monitoring Service served as
“Putin’s personal surveillance unit,” intended to gather sensitive
financial information on Putin’s opponents to blackmail or discredit
them before the public or prosecute them for non-political crimes,
such as tax evasion or money laundering. Compared to direct repression
of opponents, the gathering of financial information about them
through the use of a FATF-backed financial intelligence unit serves as
a more legitimate and credible method of stifling opposition.
F. Bolstering Domestic and Global Legitimacy
This Subpart discusses two mechanisms that incumbent officeholders
use to bolster their domestic and international legitimacy: (1) the
provision of a space for discontent against the incumbent government
and (2) the implementation of democratic reforms, coupled with the
frequent use of rhetoric that invokes the rule of law, democracy, and
constitutionalism. These techniques, as detailed below, primarily
surface in hybrid regimes where the democratic credentials of the
incumbents have been called into question. And to be sure, these
strategies might also be genuine attempts by the incumbents at
democratic reform. My claim here is limited: When used, the strategies
described in this Subpart allow the incumbents to rebut criticisms of
anti-democratic behavior, regardless of whether such strategies are
genuine attempts at democratic reform or mere fig leaves for
concealing anti-democratic practices.
1. Space for Discontent
Unlike their historical predecessors, authoritarians or would-be
authoritarians increasingly allow some space for the expression of
discontent against them through opposition political parties, civil
society organizations, and an independent press. So long as the space
for discontent is relatively limited and the existing civil society
groups remain weak, any costs imposed on the incumbent government by
its existence are likely to be outweighed by its benefits. The public
display of discontent can create the appearance of a pluralistic
society where the incumbent government accepts, if not welcomes,
criticism of its policies. That, in turn, can create the illusion of
meaningful electoral choice among competing political actors. A space
for discontent also provides “a way to blow off steam” to domestic
opposition groups. The unavailability of a space, however limited, for
the expression of discontent may serve to galvanize the political
opposition and turn political disagreements into violent
confrontations. If the expression of discontent exceeds acceptable
limits, the incumbent regime can control it through the stealth
authoritarian mechanisms already discussed. The incumbents, for
example, can sue the political dissidents for violating libel laws or
charge them with the violation of a non-political crime.
Azerbaijan under Heydar Aliyev was a good example of a hybrid regime
with significant space for the expression of discontent. Despite the
government’s semi-authoritarian nature, opposition political parties
continued to operate, a relatively independent press continued to
publish, and civil society organizations continued to proliferate and
accept foreign funds. Azerbaijan also developed a wide array of civil
society organizations, appeasing international institutions that look
to the existence of such organizations as indicators of a robust
democracy.
Although civil society organizations can provide some space for the
expression of discontent against the incumbents, their functioning may
be limited through registration and reporting regulations. For
example, a number of governments have implemented expensive and
time-consuming requirements for registration of civil society groups,
which are often held up by excessive delays, separate and more
cumbersome requirements for international civil society groups, as
well as re-registration requirements every few years. These
mechanisms, though content neutral on their surface, can significantly
raise the costs to entry. Likewise, extensive reporting requirements
for already registered organizations, burdensome procedures to apply
for and receive foreign funding, and provisions permitting the
discretionary auditing of civil society organizations can also raise
the costs of operation and impede their organizational objectives.
Examples of these barriers to entry and operation can be found in
Egypt, Turkey, Russia, Venezuela, Algeria, Azerbaijan, and Ethiopia,
among other countries.
Finally, incumbent politicians in many countries have established
government-organized NGOs (“GONGOs”). By creating these
government-friendly organizations, incumbents project the illusion of
a functioning civil society, use funds to support preferred causes,
and channel funding away from independent NGOs. GONGOs tend to focus
on apolitical and non-threatening areas, such as education, sports,
training, and youth development. GONGOs have been formed in Tunisia,
Egypt, Jordan, Syria, and Russia, among other countries, for these
purposes.
2. Democratic Reforms and Democratic Rhetoric
To imbue their regimes with the veneer of legitimacy and legality,
authoritarians or would-be authoritarians frequently implement
democratic reforms and employ rhetoric that invokes the rule of law,
democracy, and constitutionalism. This sleight of hand can distract
domestic and international audiences who often fail to detect
anti-democratic measures through the fog of democracy rhetoric and
reforms.
For example, Prime Minister Erdoğan’s government in Turkey instituted
a widespread array of democratic reforms after assuming power in 2002.
During Erdoğan’s term, ethnic and religious minorities in Turkey have
obtained increased legal and constitutional protections. Likewise,
through a series of legal and constitutional measures, the Erdoğan
government established civilian control over the country’s
once-untouchable military that staged four coups since 1960. The
Special Security Courts, which were notorious for handing out swift
and brutal punishments, were also abolished during Erdoğan’s term.
Many of these measures, however, remain largely cosmetic. For example,
other courts ended up with the same sweeping powers previously held by
the now-defunct Special Security Courts. And despite increased legal
protections on paper, religious and ethnic minorities continue to
experience disparate treatment by the government.
Russia likewise underwent a democratic overhaul of its legal system
under Putin’s rule. In his first term as President, Putin introduced
ten new legal codes that create the foundation for free market
economics. Putin also eliminated a number of Soviet-era criminal laws,
including laws that allowed near-unlimited pretrial detention and
searches without judicial authorization. These laws were replaced with
a new criminal code that expands access to jury trials, limits
prosecutorial power, and reduces the time permitted for pretrial
detention. Putin also substantially increased the funding of legal
institutions, raised judicial pay, and required the use of licensed
lawyers in criminal trials. On the international sphere, Putin’s
Russia ratified the United Nations Convention Against Corruption,
joined the Financial Action Task Force, and faithfully implemented
adverse decisions rendered by the European Court of Human
Rights.
Several nations across the Arab world modified their electoral laws
to ease restrictions on opposition parties. In several instances, the
modifications produced real reforms. For example, during Hosni
Mubarak’s rule, 88 members of the Muslim Brotherhood emerged
victorious in the 2005 parliamentary elections. Likewise, in Morocco,
the September 2007 elections landed the Islamist Justice and
Development Party 47 seats in the Parliament. Although these reforms
drew praise from foreign officials, as Steve Heydemann puts it, the
“reforms . . . have less to do with democratization than with making
elections safe for authoritarianism.”
Another popular area for strategic reform is the economy. The
adoption of tax, fiscal, and trade liberalization policies allows
regime officials to enter into rent-seeking arrangements. The relevant
regulations often provide government officials with discretion to
award exemptions from taxes or customs duties, among other types of
privileged treatment, which permit incumbents to form and cement
alliances with business elites and reinforce their hold on political
power. In addition to rewarding loyalists, incumbents can penalize
dissidents by denying them access to economic opportunities,
significantly raising the costs of political opposition. Rather than
creating political openings, economic liberalization can generate
financial and political benefits for the incumbents.
In addition to democratic reforms, rhetoric that invokes the rule of
law, democracy, or constitutionalism is often used to distract
audiences from anti-democratic practices. Now-President Erdoğan in
Turkey, for example, frequently reiterates his grand vision of
creating an “advanced democracy” in Turkey. He also rebuts criticisms
levied at controversial government measures either by citing a
constitutional or legal basis for the measure or invoking comparative
law and pointing to a democratic country (usually in the West) that
has implemented the same measure. For example, a set of constitutional
amendments that packed the Turkish Constitutional Court in September
2010 were adopted as part of a “democratization” package intended to
increase the involvement of the political branches in judicial
appointments and bring the appointments process in line with liberal
democracies, such as Germany.
Similar rhetoric also features prominently in statements by the Putin
government in Russia. In his pre-election “Millennium Manifesto,”
Putin proclaimed his desire to create a powerful Russian state with an
emphasis on law and what he termed “constitutional security.” In his
very first month in office, Putin delivered four major speeches on the
importance of law to his governing philosophy. To support his legal
reform agenda to increase the powers of his central government, Putin
frequently draws an unlikely historical parallel to the experience of
the United States during the Great Depression. According to Putin, the
American experience shows that the central government plays an
imperative role in negotiating a national crisis and that he will
relinquish his stronghold on the central government only “after we
create the necessary legal conditions and mechanisms, when all parts
of a market economy work to the full extent.”
President Viktor Orbán in Hungary likewise habitually responds to
criticisms against the laws and constitutional provisions adopted by
his government by citing similar laws and provisions in democratic
states. For example, Orbán defended a controversial media law on the
grounds that the law simply emulates those that exist in other
democracies. The law authorized a newly established National Media and
Communications Authority to impose fines for unbalanced or offensive
coverage. To critics who suggested that the law can be misused to curb
media independence, Orbán responded: “There is not a single passage in
the law that does not correspond to the media law in E.U. countries.”
Orbán defended on similar terms his decisions to restructure the
judicial branch, impose supermajority appointment requirements and
longer terms of office to institutions packed with his loyalists, and
adopt restrictions on political advertising.
This Part analyzed the most prominent, but non-exhaustive, mechanisms
of stealth authoritarianism. The next Part returns to the theory to
discuss three related questions. Because the answers to all three
questions draw on rational-choice theory and strategic-choice theory,
I begin with a brief exposition of these theories.
IV. Rational Choice and Stealth Authoritarianism
Strategic-choice theory falls within the broad rubric of
rational-choice theory, which posits that rational actors make choices
based on an analysis of the costs and benefits of potential courses of
action. In strategic-choice theory, which is similar to game theory,
the relevant cost-benefit assessment includes an analysis of other
relevant actors whose future behavior may alter that assessment. In
other words, under strategic-choice models, an actor’s ability to
further its goals depends on how other actors behave. Since actors
often cannot know for certain how other relevant actors will behave,
they frequently make inferences about future behavior based on
available information about past behavior.
Applying strategic-choice theory, this Part considers three related
theoretical questions. Part IV.A discusses the conditions that enable
stealth authoritarianism. Part IV.B analyzes why governments choose to
deploy mechanisms of stealth authoritarianism, as opposed to more
traditional, transparent mechanisms of authoritarian control. Part
IV.C studies which regime types are more likely to adopt stealth
authoritarian practices. After analyzing these questions, Part IV.D
concludes by discussing the implications of stealth
authoritarianism.
A. Implementing Stealth Authoritarianism
An essential component of strategic-choice models is discretion.
H.L.A. Hart, in a newly published essay, defines discretion as a
“choice to be made . . . which is not determined by principles which
may be formulated beforehand.” Discretion is embedded into many laws,
even in democratic regimes. Judges in the United States, for example,
have discretion in sentencing defendants and certain aspects of their
own jurisdiction. Police officers likewise exercise wide latitude in
enforcing criminal laws and prosecutors enjoy “extraordinary, almost
unreviewable[] discretion” in charging decisions and plea bargaining.
Administrative agencies also possess significant discretion. The
discretion accorded to these institutional actors may be constrained
through various formal and informal mechanisms. The fewer informal and
formal restraints on discretion, the more room there is for selective
enforcement of laws. Selective enforcement refers “to selection of
parties against whom the law is enforced and selection of the
occasions when the law is enforced.”
The possibility of selective enforcement, in turn, fuels stealth
authoritarianism. As Kenneth Davis explains in his seminal book,
Discretionary Justice: A Preliminary Inquiry, “[w]here law ends,
discretion begins, and the exercise of discretion may mean either
beneficence or tyranny, either justice or injustice, either
reasonableness or arbitrariness.” As discussed above, some stealth
authoritarian practices rely on selective enforcement of laws, such as
libel laws or criminal laws. In criminal cases, prosecutors often have
the discretion to bring charges against a suspect, and that discretion
enables selective enforcement. For example, in a society where tax
evasion is prevalent, prosecutors can selectively apply the criminal
tax laws against political dissidents while permitting other violators
to go unpunished. Likewise, in libel lawsuits, government officials
have discretion as to the publications or journalists to target with
litigation.
Bureaucratic subordinates often exercise discretion in the exercise
of stealth authoritarian mechanisms. For example, it is often a police
officer who decides whether to make an arrest and a prosecutor who
decides whether to bring charges. For stealth authoritarianism to work
effectively, the regime must possess sufficient mechanisms for
controlling the behavior of these lower-level regime actors and
mitigating the principal–agent problem, which may arise when the
bureaucratic agents fail to act in the best interests of the
principal, the regime leaders. In other words, a system must be in
place for ensuring that the relevant legal mechanisms are enforced
only against political dissidents. With sufficient tools for punishing
or rewarding agents—such as by firing, reassigning, or promoting
them—the regime can ensure that the agents exercise their discretion
in conformity with the principal’s interests. Judicial review, as
discussed above, can also provide the incumbents with the opportunity
to monitor and sanction the behavior of bureaucratic agents.
In democracies, the discretion of the relevant actors tends to be
more tightly constrained than in nondemocracies. In the United States,
for example, sentencing guidelines constrain the discretion of judges,
district policies constrain the discretion of police officers and
prosecutors, and statutes restrict agency discretion. In addition to
these formal mechanisms, informal mechanisms may also impose
restraints. Repeated discretionary decision-making may accumulate in a
set of informal norms or precedents that help inform, if not
constrain, discretion. Calculations related to self-interest, such as
a desire to retain employment or political office, may also constrain
the exercise of discretion. For example, a prosecutor or a police
officer who selectively enforces criminal laws may be fired. Other
checks on the exercise of discretion in democracies include judicial
review of discretionary decision-making by a neutral arbiter and
political leaders from opposition parties with an interest in
revealing arbitrary or self-interested uses of discretion by the
incumbents. The abuse of discretion by public decision-makers is also
more likely to be detected and sanctioned in democracies with an
independent press and active civil society, which further constrains
discretion.
In nondemocracies, there are relatively fewer formal and informal
restraints on discretion. That, in turn, permits more latitude for
selective enforcement of laws, which explains in part why stealth
authoritarian strategies are more prevalent in hybrid or fully
authoritarian regimes. In nondemocracies, due to restrictions on
political opposition and public watchdogs such as the media, the
informational asymmetry between the public and the incumbents tends to
be greater. That, in turn, makes detection and sanction of selective
enforcement more difficult.
Discretionary decision-making in nondemocracies is also amplified by
the use of vagueness in the relevant laws that serve as the foundation
of stealth authoritarian practices. Vague laws are those “that have
indefinite application to particular cases,” which can create
indeterminacies in legal rights and obligations. Vagueness, in turn,
fuels discretion and stealth authoritarianism. For example,
legislation regulating civil society organizations in Russia has been
criticized as “impossibly vague.” Similar objections have been lodged
against laws in Turkey, Hungary, Algeria, Azerbaijan, and Ethiopia
that have been used as mechanisms of stealth authoritarianism. These
laws function like the sword of Damocles, leaving relevant actors
uncertain and anxious about the legality of their actions and exposing
them to threats of punitive measures should they overstep poorly
defined or undefined boundaries.
Even in democracies, however, some level of vagueness is inevitable
in crafting statutes of general applicability. In drafting statutes,
legislatures cannot address all of the unforeseen circumstances that
can come up in their application or resolve all instances of vagueness
or ambiguity that might permit discretionary decision-making. In
addition, statutes that shun all discretion would also prevent
individualized justice that tailors results according to the unique
circumstances of each case.
The prevalence of discretion across different legal regimes renders
its abuse more difficult to detect. For example, where there is
sufficient evidence to support a criminal conviction of a dissident
for a non-political crime, it becomes more difficult to determine
whether the motive for the prosecution is political, absent any direct
evidence. In other words, the motive for the conviction appears more
ambiguous than the transparently repressive case of a political
opponent jailed without due process. It might be possible to establish
a case for selective prosecution if there is a strong enforcement
trend of the relevant norms only against political dissidents, but
evidence of such trends are often difficult to develop. Even in the
United States, where constitutional claims based on selective
prosecution remain theoretically available, it is extraordinarily
difficult for a defendant to prevail on such claims.
B. Choosing Stealth Authoritarianism
Having described what makes stealth authoritarianism possible, the
Article turns to a related theoretical question: Why adopt mechanisms
of stealth authoritarianism over other available alternative
mechanisms of authoritarian control? An incumbent can achieve her
desire to retain political power through a number of different
strategies, which present different costs and benefits. Of specific
concern here is the choice that incumbents face between what I would
term “transparently authoritarian” and “stealth authoritarian”
strategies. These are admittedly oversimplified categories, and the
line of separation between transparent and stealth is not always
clear, but they provide helpful frameworks for analyzing the relevant
cost-benefit calculus.
Transparently authoritarian mechanisms represent the traditional
strategies of authoritarianism and have been well-explored in the
literature. These mechanisms include overtly defying or disregarding
laws and constitutions; imposing emergency laws or martial law;
silencing dissidents through harassment and violence; shutting down
newspapers and television stations; banning publications; manipulating
the vote count through vote buying, intimidation, and electoral fraud;
disregarding constitutional term limits; packing courts and other
state institutions with loyalists; establishing direct control over
the media and civil society; and amending or replacing constitutions
to eliminate checks and balances. I term these strategies
transparently authoritarian because these mechanisms are patently
antithetical to modern democratic norms.
The second set of regime strategies, those that I call stealth
authoritarian, represent more subtle mechanisms of authoritarian
control. As analyzed above, they involve the use of legal, primarily
sub-constitutional, mechanisms that exist in regimes with favorable
democratic credentials. They may have been adopted with the express
imprimatur of global actors, and they often involve legally accurate
applications of the existing laws. Because these legal mechanisms
exist in regimes with favorable democratic credentials, their use is
imbued with a certain level of legitimacy, making it more difficult to
differentiate between their abuse and legitimate application.
The choice between these two sets of practices—transparently
authoritarian and stealth authoritarian—is not made in a vacuum. It is
influenced by the behavior of other actors, domestic and
international, and the social, economic, and political struggles that
the interactions with these actors produce. Internationally, the
relevant actors include foreign countries, supranational organizations
(e.g., the United Nations, the European Union, etc.), and foreign
non-governmental organizations. Domestically, the relevant actors
comprise, among others, political actors, the citizenry, the civil
society, and the armed forces.
In the next three Subparts, the Article explores the relevant
behavior of three sets of actors: international actors, domestic
actors, and the incumbent officeholders. The first two Subparts
present a historical background of the international and domestic
responses to the authoritarian epidemic. That background sets the
stage to next describe how the behavior of relevant international and
domestic actors has altered the cost-benefit calculus of incumbent
politicians and the resulting metamorphosis that took place in
authoritarian practices.
1. The United States and Other International Actors
Being a modern-day authoritarian is no easy task. In the post-Cold
War era, there are significant costs associated with maintaining a
transparently authoritarian regime. International crackdown on blatant
authoritarian practices in the aftermath of the Cold War has led to a
marked reduction in regimes that openly embrace autocracy. In the late
1980s and the early 1990s, dictatorships collapsed across
post-communist Europe, Asia, and Latin America. According to the
Freedom House, the percentage of countries determined to be “not free”
decreased from 46% in 1972 to 24% in 2012. Authoritarian regimes that
do not comply with democratic criteria may be expelled from
international organizations and face significant economic and military
sanctions. Transparently authoritarian states may also lose domestic
and global legitimacy, which is a form of reputational cost.
This Subpart surveys the democracy-promotion programs in place in the
United States and in the international front. These programs have
adopted one-size-fits-all checklists that target transparently
authoritarian practices. Although these checklists are efficient and
work relatively well in detecting traditional mechanisms of
authoritarian control, they are much less effective in detecting the
subtle reconfigurations of the political order that stealth
authoritarianism effectuates. That, in turn, has provided significant
incentives to avoid the overt appearance of authoritarianism through
the adoption of stealth authoritarian practices. The prevailing
approaches to democracy promotion in the United States and elsewhere
have therefore facilitated a certain level of authoritarian learning
and created the very conditions in which stealth authoritarian
practices thrive. What is more, the label of “democracy” is often
awarded to a state that satisfies the applicable democracy-promotion
criteria, which can obscure stealth authoritarian practices and
provide legal and political cover to them.
a. The United States
The United States has been at the vanguard of global democracy
promotion. Democracy-promotion programs have been a central component
of American foreign policy, with some notable interruptions, since at
least the First World War. The Cold War spurred a heightened interest
in democracy promotion in the United States. In 1976, Congress
established the Commission on Security and Cooperation in Europe (more
commonly known as the “Helsinki Commission”) to ease government
repression and promote democratization in areas controlled by the
Soviet Union. The now-renamed Organization for Security and
Cooperation in Europe (“OSCE”) supports democratic development in 56
member states, which include nations of the Caucasus and Central
Asia.
That support continued after the fall of the Soviet Union through
democracy assistance programs in the budding post-Soviet republics in
Central and Eastern Europe. Congress enacted major pieces of
legislation, including the Support for East European Democracy
(“SEED”) Act of 1989 to support democratization in Hungary and Poland
and the FREEDOM Support Act of 1991 to promote “freedom and open
markets” in the former Soviet republics, specifically Armenia,
Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia,
Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. The 1990s also
marked the emergence of the Washington Consensus, which represented
the belief that democracy, free markets, and the rule of law would
develop in unison. By 1998, these efforts had culminated in the
establishment of democracy-promotion programs in more than 100
countries.
Democracy promotion also became a focus of American national security
policy. Every U.S. National Security Strategy issued since 1990
emphasized that democracies are the most effective partners for
addressing transnational security issues, such as terrorism, nuclear
proliferation, climate change, and disease. Defense agreements with
nations such as Japan, Spain, Greece, and Turkey made democratic
principles a foundation of the agreement.
Currently, the United States continues to operate a complex and
multifaceted democracy-promotion machine. It contributes to
multilateral efforts to promote democracy, including the United
Nations Development Program, the United Nations Democracy Fund, the
Community of Democracies, the Freedom House, the World Bank, and the
Organization of American States (“OAS”). The State Department funds
its own initiative, titled Governing Justly and Democratically, and
also provides funding to two NGOs whose mission is to promote
democracy: The National Endowment for Democracy (“NED”) and the Asia
Foundation. Congress also continues to play a significant role in
democracy promotion.
Many of these programs operate on checklist criteria that look for
obvious deficiencies in the political order. For example, to be
eligible for foreign aid under the Millennium Challenge Corporation,
which is a U.S. foreign aid agency, a foreign country must
“demonstrate a commitment to just and democratic governance,
investments in its people, and economic freedom as measured by
different policy indicators,” including “the rule of law,” “political
rights,” and “civil liberties.” Countries that have satisfied the
financial assistance criteria despite questionable democratic
credentials include Burkina Faso, Honduras, Namibia, Jordan, and
Uganda.
Also illustrative of American democracy promotion is the criteria
used to allocate foreign assistance to the independent states of the
former Soviet Union. In awarding financial assistance, the President
is required to “take into account,” among other factors, the extent to
which the candidate country is “mak[ing] significant progress toward,
and is committed to the comprehensive implementation of, a democratic
system based on principles of the rule of law, individual freedoms,
and representative government determined by free and fair elections.”
These criteria erroneously conflate the requirements for the rule of
law with those of a liberal democracy. The former are a necessary, but
not sufficient, condition of the latter, and the adoption of formal
rules does not necessarily lead to the establishment of a democracy,
as evinced by the mechanisms of stealth authoritarianism.
b. Other International Actors
The approach of other international actors to democracy promotion is
in accord with the United States. Historically, a country’s form of
government was viewed as a matter of internal governance and beyond
the purview of international law. More recently, however, there has
been a heightened interest in democracy promotion at the international
level. In the 1990s, commitment to democracy became an express
criterion for NATO membership, and Poland, Hungary, the Czech
Republic, and Slovenia were admitted to membership on the grounds that
they had established democratic regimes. The United Nations Charter,
the Universal Declaration on Human Rights, and the International
Covenant on Civil and Political Rights also refer to democratic
principles. The 2005 U.N. World Summit likewise declared democracy to
be a “universal value.”
In addition, treaties and international agreements have increasingly
come to include so-called “democracy clauses.” For example, the
Inter-American Democratic Charter and the charters of the OAS and the
African Union include democracy clauses that require member nations to
fulfill democracy criteria in order to be eligible for membership or
trade benefits. The clauses also permit the imposition of sanctions,
such as the suspension of membership, on states that undergo
“‘unconstitutional interruptions’ in their democratic order.” These
clauses are effective at detecting blatant disruptions in the
political or constitutional order, but are of limited or no use in
detecting or eliminating more subtle reconfigurations.
The democracy criteria established by the Community of Democracies
are also illustrative. The Community “is a global intergovernmental
coalition of states . . . pursui[ng one] common goal: supporting
democratic rules and strengthening democratic norms and institutions
around the world.” Over 100 countries who meet democratic standards
participate in meetings every two years to discuss issues of common
concern. Membership in the Community is based on the adoption of the
following norms: (1) “[f]ree, fair and periodic elections”; (2) “[t]he
rule of law”; (3) “[t]he obligation of an elected government to
protect and defend the constitution, refraining from
extra-constitutional actions and to relinquish power when its legal
mandate ends”; (4) “[s]eparation of powers”; (5) “equality before the
law”; and (6) a laundry list of individual rights to be protected,
including freedom of speech and assembly, freedom of the press,
protection against cruel and inhumane punishment and detention, the
right to a fair trial, and the right to non-discrimination. The
Community includes nations such as Azerbaijan, Hungary, Russia,
Turkey, Venezuela, and Yemen, who have fulfilled these democracy
criteria by enacting the required legal-constitutional reforms but
whose democratic credentials are subject to serious challenge.
International financial institutions have also adopted democracy
criteria that target obvious democratic defects. In 1989, following a
three-year study of Africa’s economic problems, the World Bank
concluded that the improvement of the political conditions on the
continent were essential to reversing Africa’s economic decline. That
conclusion shifted the focus to “the rule of law as an essential
component of good governance.” By the late 1990s, nearly 78% of
conditions imposed by international financial institutions in loan
agreements targeted legal reform and the promotion of “the rule of
law.” Although effective at detecting regimes that blatantly eschew
the rule of law, these criteria are significantly less effective at
identifying stealth authoritarian practices, which utilize formal
legal mechanisms to perpetuate power and project the illusion of a
rule-of-law society.
Similar checklists are also prevalent in the academic scholarship.
For example, in the widely used Polity dataset, the existence of free
and fair elections is the primary criterion for determining whether a
country is democratic. Several countries with prevalent stealth
authoritarian practices have scored relatively well in the dataset,
where the scores range from -10 to +10. For example, according to the
dataset, Hungary is a model constitutional democracy with a score of
10 out of 10, and Turkey enjoys a fairly high score of 9 out of
10.
Stealth authoritarian practices have taken hold even under the
watchful eye of the European Union, which was left powerless to stop
the creation of a competitive authoritarian regime in Hungary under
the Fidesz government led by Viktor Orbán. As Kim Lane Scheppele has
demonstrated across a series of articles, the Fidesz government staged
a “constitutional coup” by using the mechanisms of constitutional
amendment and replacement to systematically eliminate checks on its
power. For example, the Fidesz government lowered the retirement age
of judges in order to remove much of the leadership of an active and
powerful judiciary that threatened Fidesz interests. The European
Court of Justice resisted and held that the lowering of the judicial
retirement age violated E.U. law. Orbán, dissatisfied with the
decision, eventually reinstated the judges. Since E.U. law did not
require the assignment of the judges back to their former leadership
positions, however, Orbán managed to circumvent the ruling by
assigning the judges to other, less influential positions, while
projecting the appearance of compliance with E.U. law.
In sum, the prevailing democracy-promotion mechanisms in the United
States and elsewhere have focused primarily on detecting obvious
deficiencies in the democratic order. That focus has facilitated a
certain level of authoritarian learning that, for the reasons
discussed below, prompted the replacement of transparently
authoritarian mechanisms with more stealth mechanisms of
control.
2. Domestic Actors
In addition to the international community, the actions of domestic
actors influence political behavior. Transparently authoritarian
practices can discredit an incumbent government and foment rifts
within its support structures, thereby raising the political,
economic, and military costs to the government of maintaining the
status quo. It can also galvanize opposition movements, strengthen
their resolve, and allow them to leverage on the repression to win the
sympathy of others and obtain domestic and global resonance for the
movement. For example, social movements that organized during the 2011
Arab Spring were successful in overthrowing the incumbents in Tunisia
and Egypt, which had maintained openly authoritarian governments for
decades. Likewise, the Color Revolutions—such as Georgia’s Rose
Revolution in 2003 and Ukraine’s Orange Revolution in 2004—also led to
the popular overthrow of authoritarian leaders. Finally, the domestic
armed forces may also play a role in combatting authoritarian
practices and stage a coup d’état to effectuate a democratic regime
change. Authoritarian regimes in Turkey in 1960, Portugal in 1974, and
Egypt in 2011 all suffered that same fate from their domestic
militaries.
Political leaders therefore have significant incentives to conceal
obvious authoritarian practices and the appearance of authoritarianism
to avoid resistance or backlash from the relevant domestic actors. To
be sure, the possibility of domestic backlash has more salience for
some regimes than others, as I discuss below. But first I analyze how
political leaders may respond to the relevant behavior of
international and domestic actors in determining whether to choose
transparent or stealth mechanisms of authoritarianism.
3. Incumbent Officeholders
This Subpart begins with two theoretical premises based on
rational-choice theory. First, politicians are self-interested actors
who seek to minimize costs and risks and maximize the payoff. Second,
politicians follow their own self-interest of advancing their
prospects for retaining power, rather than serve as the faithful
agents of the citizenry, which may produce outcomes at odds with the
national interest.
Rational choice admittedly presents a reductive account of political
behavior. It may not fully capture the entire complexity of the
incentives and motivations of relevant public decision-makers. It also
neglects the “suboptimal choices” that politicians make as a result of
their cognitive limitations. The theory of political behavior
described here accepts, and works within, these limitations. This
Subpart first delineates expected political behavior under traditional
rational-choice assumptions. The next Subpart explains patterned
behavioral deviations that result from contextual differences and the
introduction of cognitive biases and high information costs.
A significant benefit of traditional, repressive authoritarian
mechanisms is their efficiency. For example, subjecting civil society
organizations to intense regulatory oversight to impede their
operation is likely to be less efficient and more costly than
immediately shutting them down. Likewise, imprisoning a journalist for
critical commentary may also be more efficient at chilling speech than
a protracted libel lawsuit. A decision to adopt these openly
authoritarian practices may increase today’s payoff, but it will also
generate significant costs that may reduce tomorrow’s.
As discussed above, maintaining an openly authoritarian regime can be
a costly proposition given the international crackdown on
authoritarian practices in the post-Cold War era and the domestic
overthrow of authoritarian leaders in the aftermath of the Color
Revolutions and the Arab Spring. Stealth authoritarianism provides an
optimal decoy by manipulating information output about anti-democratic
practices and modifying the perceptions of the relevant actors.
Practices that appear clearly repressive in a transparently
authoritarian regime appear more ambiguous in a regime that employs
stealth authoritarian practices. Stealth authoritarianism raises the
actual or apparent costs of detecting and eliminating authoritarian
practices for both domestic and global actors, which generates
significant payoffs.
As to domestic actors, opposition becomes more costly if the
governing regime utilizes mechanisms that exist in regimes with
favorable democratic credentials to perpetuate its rule. As an initial
matter, detection of anti-democratic measures can be more difficult
than in a transparently authoritarian regime. Repressive practices,
masked by the rule of law, may go undetected by significant segments
of the polity, which, in turn, can raise the costs of mobilization
against the incumbents. For example, where a criminal prosecution
(backed with sufficient evidence) or a libel lawsuit is employed
against a political dissident, it can be difficult to differentiate
between legitimate application and abuse, at least compared to
transparently authoritarian practices. For similar reasons, as
Christopher Schmidt explains, segregationists in the Southern United
States abandoned costly direct legal methods of oppression, such as
expressly legalized discrimination, in favor of indirect, less
transparent, and race-neutral legal methods to defend white
supremacy.
Even where detected, stealth authoritarian practices may be less
objectionable to segments of the domestic polity than direct
repression. Stealth authoritarianism becomes even more palatable where
the regime couples stealth authoritarian practices with desirable
democratic reforms. In addition, the existence of a limited space for
political opposition and discontent can create the illusion of
political competition and meaningful electoral choice among competing
political actors. The illusion of choice can pacify the polity by
allowing citizens to experience participation in the democratic
process, without providing a meaningful opportunity to displace the
incumbents. Especially in fully authoritarian regimes, the use of
stealth authoritarian practices can also be praised as signs of
democracy since these practices rely on formal legal mechanisms that
exist in regimes with favorable democratic credentials. The ability to
challenge the incumbents, raise political arguments, and establish
reputations may justify participation in the electoral marketplace by
opposition activists. As a result, the public incentive to oppose a
regime that applies stealth mechanisms of control may be less than an
openly repressive one. That, in turn, may impede the opposition’s
mobilization efforts. Without participation by broad segments of the
population, the opposition movement runs the serious risk of being
disregarded as an unrepresentative fringe faction. As Adam Przeworski
explains, “[a] regime does not collapse unless and until some
alternative is organized in such a way as to present a real choice for
isolated individuals.” In a regime that perpetuates its power through
the same mechanisms that exist in democratic regimes, constructing
that alternative reality often presents a costlier proposition.
Stealth authoritarianism also increases the costs of detection and
sanction for global actors. Stealth authoritarian practices transform
the domestic legal framework to appear consistent with the normative
expectations of international actors. Subtle reconfigurations of the
existing order through the use of stealth authoritarian practices are
more difficult to detect than long-condemned authoritarian practices
that portray an openly repressive regime with ubiquitous government
control. International actors, sitting at a distance from the domestic
political arena, may have even more difficulty in detecting stealth
authoritarian practices than domestic actors.
In addition, the adoption of democratic reforms may help incumbent
officeholders build coalitions with international institutions, which,
in turn, bolsters regime legitimacy. For example, several human rights
groups supported Hugo Chavez for some time after he inserted language
they proposed into Venezuela’s Constitution. Likewise,
semi-authoritarian Ugandan leader Yoweri Museveni increased his
popularity by enacting a new law on land ownership and inheritance in
response to demands by international human rights groups.
What is more, many of the sub-constitutional mechanisms that serve as
the foundation for stealth authoritarian practices exist in countries
with favorable democratic credentials or are adopted with the
imprimatur of international organizations. The adoption of financial
surveillance laws with the backing of the FATF provides a good
illustration. International institutions are less likely to criticize
legal mechanisms or institutions whose adoption they advocated or
endorsed, as evidenced by the FATF’s continuing commendation of
financial surveillance laws in Russia despite evidence of abuse.
Likewise, foreign political actors can also be loath to resist
stealth authoritarian practices if such practices enforce laws that
exist in their own legal systems, lest they be criticized as
hypocritical. For example, Turkey’s high electoral threshold—whose
anti-democratic effects were discussed above—has, for the most part,
escaped the opprobrium of the international community and even
obtained the blessing of the European Court of Human Rights. One
reason might be that electoral thresholds exist in many democratic
countries and serve useful purposes for the incumbent regime. In
Germany, for example, an electoral threshold was adopted for the
purpose of creating some stability in a fractious political
marketplace. German political actors’ criticism of Turkey’s electoral
threshold may call into question the wisdom of the German threshold.
For that reason, many incumbent officeholders who deploy stealth
authoritarian practices attempt to deflect criticism by citing
democratic foreign countries that have adopted the same criticized
legal mechanisms. That provides some legitimacy to those mechanisms
before domestic audiences, but also raises the costs to the global
community of detecting their abuse and resisting their adoption.
C. Regime Types and the Cost-Benefit Calculus
The previous Subpart discussed why the relevant cost-benefit
calculus may lead to the adoption of stealth authoritarian practices
in light of domestic and global backlash against transparently
authoritarian regimes. The full story, however, is more nuanced. If
the benefits of stealth authoritarianism always exceeded their
costs, then all authoritarian governments would replace
transparently authoritarian practices with more stealth mechanisms
of control. That is at odds with the empirical evidence. Although
the number of openly authoritarian regimes has significantly
decreased in the aftermath of the Cold War, transparently
authoritarian practices still exist. This Subpart discusses why.
Here, I relax the traditional rational-choice assumptions and
explain patterned behavioral deviations that result from contextual
differences and the introduction of cognitive biases and high
information costs.
Context matters to political behavior. Political leaders do not all
face the same cost-benefit calculus. As a result, they are not
equally likely to adopt stealth authoritarian practices. As
discussed above, the adoption of stealth authoritarian practices is
driven primarily by a desire to appease the international community,
satisfy the normative preferences of global actors, and assuage the
domestic populace. Those objectives carry more salience for some
regimes than others. In other words, some regimes are more dependent
on international approval, global legitimacy, and domestic popular
support than other regimes that derive their support structures and
legitimacy from other sources. Stealth authoritarianism is more
likely to take root in regimes with a quantum of democratic
responsiveness and a viable threat of destabilization, which renders
reliance on direct repression too costly.
These regimes are, in turn, likely to occupy the gray zone of hybrid
regimes between democracy and authoritarianism. Hybrid regimes are
less likely to resort to overt mechanisms of repression—such as
violence or harassment—than fully authoritarian regimes. In a regime
that can categorically repress political opposition with impunity,
there is no need for stealth authoritarian mechanisms, such as libel
lawsuits or non-political crimes. In addition, the reputations of
fully authoritarian regimes may already have been sufficiently
tarnished that attempts to rebuild global goodwill by concealing
openly authoritarian practices may not produce significant benefits.
What is more, “a reputation for toughness” can itself generate
benefits for fully authoritarian regimes.
Fully authoritarian regimes might shun stealth authoritarian
practices also because they ground their legitimacy in sources other
than international or domestic approval. Take, for example,
monarchies, which rely primarily on family and kinship to perpetuate
their rule against any domestic resistance. Many monarchies, such as
Saudi Arabia, base their legitimacy on historical or religious
grounds, which serve as a substitute for adopting the trappings of
the democratic, modern nation-state. If historical or religious
claims ensure the perpetuation of monarchical rule, monarchies have
relatively less need for employing stealth authoritarian strategies.
The adoption of stealth authoritarianism may likewise be unnecessary
in military dictatorships, which are controlled by one or more
military leaders who rely on brute force through the military
apparatus to consolidate control. Military dictatorships have
historical pedigree in various countries across Latin America (e.g.,
Chile under Augusto Pinochet) and Africa (e.g., Libya under Muammar
Gaddafi). Because military dictatorships rely primarily on
instruments of coercive power to perpetuate their rule, the global
reputational costs discussed above of maintaining an openly
authoritarian regime are less salient for them.
Regimes that are dependent on foreign investment are also more likely to employ stealth authoritarian practices. Investors often require legal assurances that their investments will be protected and the domestic economic sphere will remain relatively stable. Especially in regimes with high levels of government corruption, the appearance of the rule of law can provide skeptical investors the necessary confidence to invest. The same laws and institutions that protect foreign investors can be applied selectively in the domestic sphere against political dissidents. As noted above, the Egyptian Constitutional Court was provided interpretative power over the constitution in part to attract foreign investment and assure international investors that the Court would deter any changes to a free market economy. The same Constitutional Court, however, also protected regime interests by rejecting challenges to emergency laws and military tribunals, which were the primary tools of authoritarian control under Mubarak’s rule.
For three primary reasons, a regime’s use of stealth authoritarian practices does not necessarily imply its absolute rejection of more transparently authoritarian behavior. First, structural constraints, including existing political and legal configurations, may prevent the abolishment of transparently authoritarian practices even where the incumbents desire to do so. Second, adoption of stealth authoritarian practices may prove insufficient to maintain the desired level of control. Although these practices undermine the healthy functioning of the democratic marketplace, political leaders may need to resort to more overt authoritarian practices to consolidate control. For example, if the use of libel lawsuits or selective prosecution of political opponents fails due to pushback from the judiciary, the regime may adopt the more transparently authoritarian function of reorganizing or packing the courts to make them more complacent. In Singapore, for example, the government terminated judicial review, in compliance with established procedures in its Constitution, after the judiciary moved to expand individual rights.
Third, the persistence of transparently authoritarian practices may also result from high information costs and cognitive biases. Due to high costs of processing information about regime practices and the behavior of other relevant actors, the regime in question may not have adapted to the new trends in authoritarian governance and, as a result, failed to implement stealth authoritarian practices. One can refer to this phenomenon as the lack of dictatorial learning. The operation of “the status quo bias, which refers to an irrational preference for the current state of affairs,” may also be at work. Affected by the status quo bias, the authoritarian government may rely on traditional mechanisms of control even where stealth authoritarian practices would reduce costs and yield more benefits. That suboptimal choice, however, often comes at a price. Incumbents, who opt for transparently authoritarian mechanisms where it is irrational to do so, will be driven out of the authoritarian market. The empirical data, which shows a significant decline in transparently authoritarian regimes since the end of the Cold War, largely supports that theory.
As illustrated above, stealth authoritarianism can also entice incumbents in democratic regimes. Stealth authoritarianism may be especially attractive to democratic leaders given the additional cover of well-established democratic credentials. Because of the democratic reputation of the regime that implements them, stealth authoritarian practices might be condoned as legitimate, as opposed to abusive, exercises of discretion. Nevertheless, the discretion afforded to relevant decision-makers tends to be more constrained in democracies through formal and informal mechanisms, which, in turn, inhibits opportunities for stealth authoritarianism. In addition, stealth authoritarian strategies, when employed in democracies, are subject to criticism by political opponents, the media, and civil society actors for their entrenchment tendencies. Abuse of legal mechanisms in democracies can also result in civil lawsuits or criminal prosecutions against the relevant decision-makers. Because the possibility for monitoring and sanction of public decision-makers in democracies is higher than in nondemocracies, stealth authoritarian practices in democratic regimes are more likely to cause domestic backlash, which constrains their use.
D. Stealth Authoritarianism: Implications
As noted above, the phenomenon of stealth authoritarianism is regime neutral and can be observed in both democracies and nondemocracies. This Subpart first discusses the implications of stealth authoritarianism for democracies, followed by nondemocracies.
For democracies, the consequences of stealth authoritarianism depend on the magnitude of their use. Sporadic use of these practices in established democracies is not uncommon and should not necessarily present a cause for concern since, as noted above, their use is more likely to be detected and sanctioned by an informed public. The extensive use of stealth authoritarianism in democracies can, however, erode partisan alternation, restrict civil liberties, and lead to the creation of a political monopoly. The precise point at which this happens is highly context dependent, which makes accurate calibration difficult. But the absence of turnover in several electoral cycles in either the executive or legislative branch, coupled with the prevalence of stealth authoritarian practices, is a strong indicator that the regime is sliding towards the authoritarian end of the democracy–authoritarianism continuum. For example, for much of the 20th century, the United States South, largely through the manipulation of electoral laws, was a one-party political monopoly.
More uncertain, however, are the implications of stealth authoritarian practices in authoritarian or hybrid regimes. As an initial matter, stealth authoritarianism, in many cases, presents a lesser moral evil than traditional mechanisms of authoritarian control. The use of formal legal mechanisms as a method of repression is often preferable to the use of arbitrary force. Libel lawsuits, for example, are preferable to torture and harassment of journalists. Likewise, a criminal prosecution that permits avenues for judicial relief before domestic and international tribunals is preferable to imprisonment without a trial or due process. A regime that permits a limited space of discontent is also morally preferable to a regime that tolerates no dissent.
In that sense, democracy-promotion programs in the United States and elsewhere have achieved success by persuading authoritarians to adopt less morally questionable practices. As discussed above, however, existing democracy-promotion mechanisms have also facilitated a certain level of authoritarian learning and created the very conditions in which stealth authoritarian practices thrive. Because these mechanisms narrowly focus on detecting obvious democratic deficiencies, they are substantially less effective in detecting the subtle erosion of political competition that stealth authoritarianism effectuates. That, in turn, has provided significant incentives to authoritarians to replace transparently authoritarian mechanisms of control with stealth authoritarian practices. In addition, a state that satisfies the applicable democracy-promotion criteria is often bestowed with the label of “democracy,” which can provide legal and political cover to stealth authoritarian practices.
What does the prevalence of stealth authoritarianism in an authoritarian or hybrid regime portend for the regime’s future? There are three primary paths: The regime can persist in its present form, decay into a more authoritarian regime, or mature into a democracy.
Although less insidious than traditional forms of authoritarianism, stealth authoritarianism may also generate a more durable form of authoritarianism that allows the regime to persist in its present form or become more authoritarian. In the post-Cold War era, the use of transparently authoritarian mechanisms can reduce the lifetime of a repressive regime, whereas stealth authoritarianism can prolong it. As discussed above, the use of stealth authoritarian mechanisms can allow the incumbents to retain power by appeasing both global and domestic audiences, providing a limited space for the expression of discontent, and disabling political opponents through seemingly legitimate means. Because it relies on formal legal mechanisms that exist in regimes with favorable democratic credentials, stealth authoritarianism is more difficult to detect and eliminate than its more transparent counterpart, which can bolster its durability. Stealth authoritarianism can also permit incumbents to retain their political monopoly even with the arrival of democratic reforms.
Even where it is possible to dethrone the incumbent regime, the replacement regime can rely on the same legal mechanisms and structures set up by the incumbent to perpetuate its rule. Newly elected political leaders often have little incentive to change a legal system that provides systematic advantages to the incumbents. As Steven Levitsky and Lucan Way observe, numerous electoral turnovers after the Cold War brought little institutional change, and successor parties did not govern democratically. In Russia, for example, the constitutional order constructed by President Boris Yeltsin, with a strong executive and weak checking institutions, has allowed the persistence of a competitive authoritarian regime long after Yeltsin’s resignation. Electoral turnover in hybrid regimes can therefore permit the perpetuation of stealth authoritarian practices.
Stealth authoritarianism can also be pernicious because it can facilitate authoritarian learning and spread to other regimes. Stealth authoritarian practices that generate durability in one regime can be emulated in others for anti-democratic purposes. Information that teaches incumbent officials how to retain political power while appeasing domestic and global audiences can effectively spread across different legal regimes via emulation or inter-regime dialogue, generating a stealth authoritarianism playbook.
There remains, however, the possibility that the use of stealth authoritarianism can eventually usher in democratization. The use of stealth authoritarian practices may mark the beginning of the end of a repressive government. Stealth authoritarianism, in other words, may represent a temporal snapshot in a regime’s gradual transformation from a fully authoritarian government to a democracy. Although stealth authoritarian practices are anti-democratic in effect, they might, in some cases, produce the conditions by which democracy can mature, even if it does so in a manner that, on the surface, defies democracy. The rejection of openly repressive authoritarian tactics, and the adoption of legal mechanisms that exist in democratic countries, can open up a democratic Pandora’s box and foment further democratic reforms. It may be possible for subsequent generations to breathe democratic life into formal legal mechanisms that were initially adopted or used for stealth authoritarian purposes. As a result, even though formal legal mechanisms can provide the tools for stealth authoritarianism, they can also, in some cases, produce democracy-enhancing benefits.
V. Conclusion
The scholarly comprehension of authoritarianism has failed to keep pace with the evolution of authoritarian regimes. The voluminous scholarship on authoritarianism has focused primarily on explicating traditional, and fairly transparent, mechanisms of authoritarian control. These traditional, transparent strategies still persist, to be sure, but the narrow focus on them has left undertheorized an emerging trend in authoritarian governance.
This Article provided a comprehensive, cross-regional account of that trend, which I termed stealth authoritarianism. In response to the post-Cold War crackdown on transparently authoritarian practices, the new generation of authoritarians or would-be authoritarians learned to resort to more subtle forms of control. Specifically, they learned to perpetuate their power through the same legal, primarily sub-constitutional, mechanisms that exist in regimes with favorable democratic credentials. Drawing on rational-choice theory, the Article argued that stealth authoritarian mechanisms generate significant benefits for many regimes, while raising the actual or apparent costs of detecting and eliminating authoritarian practices for relevant domestic and global actors.
The rise of stealth authoritarianism is significant for three primary reasons. First, it challenges the conventional wisdom in the literature, which has largely eschewed the role that formal legal mechanisms play in authoritarian control. Second, the study of stealth authoritarianism informs important questions in legal and democratic theory by demonstrating the limits of democratic processes and their vulnerability to authoritarian abuse. As the Article explained, stealth authoritarianism is a regime-neutral phenomenon and, with the appropriate level of discretion embedded in the relevant rules, these mechanisms are subject to use and abuse by both nondemocracies and democracies. Third, existing democracy-promotion mechanisms, though effective in detecting traditional strategies of authoritarian governance, are much less effective in detecting stealth authoritarianism, which relies on more subtle reconfigurations of the political order. Paradoxically, these democracy-promotion mechanisms, which narrowly search for obvious democratic deficiencies, have provided legal and political cover to stealth authoritarian practices and created the very conditions in which these practices thrive. Although stealth authoritarianism may foment a more durable authoritarian order, it might also produce, in some regimes, the conditions by which democracy can mature and expand in a two-steps-forward-one-step-backward dynamic.
* Associate Professor of Law, Lewis & Clark Law School.
Many friends and colleagues shared their thoughts on this Article, and I particularly thank Richard Albert, Alexander Blum, Ed Brunet, Joel Colon-Rios, A.E. Dick Howard, David Fontana, Leah Gilbert, Tom Ginsburg, Samuel Issacharoff, Jeremy Kidd, David Landau, David Law, Eugene Mazo, Bertil Emrah Oder, Ana Ibarra Olguin, John Parry, William Partlett, Erin Ryan, Christopher Schmidt, Kim Lane Scheppele, Juliet Stumpf, Kathy Varol, Yurdanur Varol, Tacettin Varol, Mila Versteeg, Adrien Wing, and the participants at workshops and conferences held at Cornell Law School, the Center for the Constitution at James Madison’s Montpelier (the Montpelier Roundtable in Comparative Constitutional Law), Lewis & Clark Law School, Koc University Law School in Istanbul, Turkey, and the Third Annual Conference of the Younger Comparativists Committee of the American Society of Comparative Law. For outstanding research assistance, I thank Eric Brickenstein, Brandon Hawkins, Philip Thoennes, and Lynn Williams.
