by Sanford Levinson

An article in today's Washington Post, is tellingly titled "In a Pivotal Year, GOP Plans to Get Personal: Millions to Go to Digging Up Dirt on Democrats." The gist of the article is that Republicans expect to spend millions in highly negative ads for the duration of the campaign, correctly realizing that it would be impossible to win the mid-term elections on the issues and believing, perhaps correctly, that their best chance is trying to destroy the reputation of any and all Democratic challengers (save, of course, for Joseph Lieberman). As a more-or-less "good Democrat," I hope that the Democratic Party strategists have learned from earlier elections and are prepared to give as good as they get. That being said, I wonder how much more delegitimation the Congress can suffer. If both sides are fully negative, then one can predict that roughly half the country will (accurately?) believe that Congress is staffed by scoundrels, just as more than half of the country now believes (I believe altogether accurately) that George Bush is an untrustworthy liar (and, I hope it would follow, unfit to be president). I have been arguing for some time now that Carl Schmitt's 1920s analysis of Weimar Germany is more-and-more relevant to our own situation. No one took any of the debates within the parliament at all seriously, because no one could believe that one party was honestly talking to the other and/or that the opposition parties were willing to listen. It was all show, all posture, focusing on what we today would call "mobilizing the base." And, of course, Schmitt called for a strong executive to provide necessary political order. We are evermore in a "race to the bottom" with regard to the mechanics of electoral campaigning. As theorists of the "prisoner's dilemma" would predict, it is absolutely irrational for one party to behave "virtuously," which in this case would mean a serious debate on issues and rejection of negative campaigning, if the other party can gain by taking the low road of personal vilification, as the Post article suggests is the Republicans' rational strategy. On a quite different matter, incidentally, the Republicans' predicted behavior is just one more reason why it is so foolish that New Republic favorite Senator Joseph Lieberman joined with other self-styled "moderates" to stymie any Democratic filibusters of right-wing extremists to the Court. They presumably believe that the Republican Party would play similarly fair if a Democratic president were making the nominations. There is, alas, no reason to believe that. San Diego law professor David Law and I have tried to show elsewhere "Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments," 39 UNIVERSITY OF RICHMOND LAW REVIEW 923-947 (2005). If, of course, one side engages in unilateral disarmament, the situations changes. One question facing Democrats, then, in how much unilateral disarmament to engage in against their political enemies who view American politics in terms of continuing and relentless warfare. Again, Carl Schmitt is relevant, inasmuch as he defined the distinctiveness of politics precisely in terms of creating the "enemy" against whom one mobilizes. That is precisely what the Republican Party has done for the past 20 years. The foreign enemy used to be Communists; now it's "Islamo-fascsists," whether or not the concept makes the slightest bit of sense. (A panel at last week's American Political Science Association meeting, which included, among others, both Francis Fukayama and Benjamin Barber, was united around the proposition that it indeed makes little or no sense.) The domestic enemy is "defeatocrats" who actually believe that government might be efficacious at tasks other than instilling fear in the populace and "fighting terrorism" by moving us closer to the psychic reality of a police state. These remain dire times for the Republic, and no one should believe that a Democratic victory in the mid-terms will be anything more than a brief respite of a continuing war-like struggle whose next electoral battle will occur in only 26 short months.