Over at his indispensable blog Public Law for Everyone, Mark Elliott writes about an online petition to the UK Parliament which calls for a new general election. The stated reason for this demand is that the petition’s signatories “believe that the current Labour Government have gone back on the promises they laid out in the lead up to the last election”. As Professor Elliott explains, “[t]he petition might well”, like a similar one submitted less than a year ago (but before an election and a change of government took place), “trigger a debate in the House of Commons, but it is plainly not going to result in an early general election”. As Professor Elliott also notes, though, the petition is interesting as a sign of our populist times.
More specifically, Professor Elliott sees it as a manifestation of a “populist authoritarianism [which] presents an unprecedented threat to democracy”, because on this approach to politics “legitimacy is judged not by the quality of democratic process but by the extent to which the outcomes of that process align with populist tastes” (emphasis Professor Elliott’s). He adds:
One of the staples of the populist playbook is to ignore or undermine existing institutions and constitutional mechanisms as part of the creation of an overarching narrative that pitches ‘elite’ institutions against ‘the people’. A petition calling for a general election only a few months after an election that was unimpeachable in terms of its compatibility with relevant legal and democratic values is fully of a piece with this. In particular, it speciously attempts to cast doubt on the legitimacy of the recent general election while eschewing reliance on existing mechanisms of accountability.
Professor Elliott notes that there are both legal and political mechanisms to hold the government accountable ― up to and including a loss of confidence that would indeed trigger either a change of government or a new election. But voters don’t get to do a do-over just because they feel like it.
Broadly speaking, I agree with this, but there are a few things to clarify or even quibble with. First though, I would note, as Professor Elliott is perhaps too polite to do, that the same people who are eagerly signing this petition were probably among the most outraged when, in the wake of the Brexit referendum, calls went up for, you guessed, a do-over. And, granted, the two cases aren’t exactly the same. The referendum was seen, certainly by Brexit supporters but ultimately even by its opponents, as one-time decision that could not be gone back on. An election, by contrast, is inherently not irrevocable: there will be another one, albeit perhaps not as soon as some, or even many, people would like. (And we could debate whether the five-year term of the UK Parliament is too long. Canada has settled on (no more than) four years; Australia and New Zealand, three; the US House of Representatives is elected every other year.) But the intuition behind the two campaigns was the same: if people, taken to be synonymous with the people, don’t like the consequences of a vote, another one must be held ― now. The Brexit re-referendum, incidentally, was prospectively dubbed a “people’s vote” ― as if only Jacob Rees-Mogg had voted the first time around: a populist slogan if there ever was one.
Perhaps because I think we should remember that populism comes at us from directions, I like Professor Elliott’s use of the word “tastes” in his definition of populism. Alison Young, in an article on “Populism and the UK Constitution“, argues against treating appeals to emotion (to which I think taste is closely related) as characteristic of populism, because they are something all politicians engage in. But I think’s not a good enough reason to ignore the fact that populism is all about tastes, vibes, and other feels. And if that forces us to conclude that all practitioners of democratic politics are populists, though of course some more than others, well, so be it.
Conversely, again because of my ecumenical view of populism, one of my quibbles with Professor Elliott concerns his use of the qualifier “authoritarian”. I don’t think that demanding a new election ― however populist and unreasonable the demand is ― is really a sign of authoritarianism. Misunderstanding (real or, as Professor Elliott rightly suggests, feigned in the case of politicians) of how the constitution and institutions work, sure. A distaste with democratic institutions as they exist, yes. But it doesn’t follow that all populists, or these particular populists, are opposed to democracy on principle, or would like to replace it with some other system of government. I think this point is worth making even if, or indeed precisely because, elevating populist sensitivity in the democratic discourse very much risks preparing the ground for an authoritarian takeover. There are plenty of people who enable this tragic outcome without wishing to, and if we want to encourage some of them to have second thoughts, it might help to acknowledge the sincerity of their views.
This brings me to a broader concern with Professor Elliott’s discussion of populism. I think it’s not quite right to say that populism is about “ignor[ing] or undermin[ing] existing instituions”. Rather, as I argue in a forthcoming article on the decay of Canadian constitutional conventions,
despite its emphasis on the conflict between the people and the elites, populism is not an appeal to unalloyed direct democracy. It does not reject institutions as a category. Although a given populist current may attack institutions as currently constituted or even advocate the dismantlement of some of them, populism’s general concern is to ensure that institutions act in accordance with the will of the people. In short, populism is the creed of those who would recognize themselves in the (probably apocryphal) words: “There go the people. I must follow them, for I am their leader.”
The petition calling for a new general election is not, on its face at least, an attempt to get rid of Parliament altogether, but to produce a new one, ex hypothesi more attuned to the people’s desires. In practice, this principle cannot work: whatever the right length of a Parliamentary term, it cannot be six months. The petition’s principle, taken to its logical conclusion, would indeed be destructive of representative democracy. But many of its signers probably don’t realize this or do not mean to be particularly logical, and any not all populist arguments work like that.
Again I think this nuance is worth recognizing, because it explains why populism can be so insidiously seductive to those who should know better by virtue of being embedded within the institutions it targets, as well as their supporters. Sure, part of the appeal is that these people are unwise and think they can ride the tiger. But part of it, I suspect, is that they don’t see populist arguments as destructive of their institutions. If anything, they believe, mistakenly but in good faith, that the legitimacy of institutions will only be enhanced by aligning them more closely with popular beliefs and desires. Hence, for instance, the Supreme Court of Canada’s endorsement of the view that its function is not merely to say what the law is, but to give voice to “social values” of this or that segment of the citizenry. For a court to actually rule on the basis of social values rather than the law would eviscerate its role, transforming it into an unelected pretend-legislature. But the judges who signed onto that ruling did not intend that outcome.
This brings me to the last issue I wanted to raise, this one very much an addendum rather than a quibble; I do not think Professor Elliott would disagree. While his post is focused on democracy, his understanding of populism as the tendency to judge legitimacy “not by the quality of [the] process but by the extent to which the outcomes of that process align with populist tastes” is every bit as applicable to law as it is to politics. Populism holds that the outcomes of legal disputes, as well as the outcomes of legislative debates, have to align with popular taste and will, and that their failure to do so is something to be fought ― not necessarily by destroying the relevant institutions, but by ensuring, in one way or another, that they fall in line. This does risk hollowing the institutions in question, making them empty shells of what they ought to be. But populists ― and once, again, they are not all self-conscious authoritarians, let alone all on the political right ― do not see that.
I conclude where Professor Elliott does. As he says, “[t]he Prime Minister is … right to have said that he will not be calling an election as a result of this petition”. Existing institutions aren’t always good, and one can of course argue that they are altogether bad and should be abolished or replaced. But we should remember that existing instituions probably do serve at least some important purposes, and arguments for radical reform need to give some thought to how these purposes can still be served without these institutions. And at an even more basic level, such arguments need to clear-eyed. The populist claim, explicit or implicit, that institutions can be preserved or even enhanced while being forcibly aligned with real or supposed popular predilections is an illusion.
And I agree, too, that we “should worry about the underlying forces that fan the flames of such initiatives”. But it’s important to recall that these forces are far more diffuse than it is tempting to suppose. It is often not the case that some one politician or tech mogul is pushing society and politics in a populist direction. Whether a democratic polity can escape these forces is an age-old concern because they are probably inherent to any political culture that values equality. If any solution to this problem exists at all, we cannot hope to find it without recognizing that the fault is not in our podcasters, tech bros, and reality-TV stars, but in ourselves.