Of Robocalls, Rocking Cars, and Rule of Law

In an evolving political mess now dubbed the “robocalls” scandal, Canada’s national election-management body announced last week that it was investigating a deluge of complaints it received during federal elections held in May 2011. The torrent of complaints came from voters who received automated calls on election day with bad information about the location of their polling stations, making it harder for them to cast their votes. Where the commission typically fields 300 to 600 complaints in a federal election, it got.roughly 31,000 after the 2011 contest, and the robocalls in question appeared to target voters affiliated with the Liberal Party.

Going into the 2011 election, the Liberals held 77 of the 308 seats in parliament; after the vote, they held just 34. Meanwhile, the ruling Conservatives saw their seat total jump from 143 to 166, enough to secure a majority. According to interim Liberal leader Bob Rae, the suppression of turnout directly contributed to his party’s defeat in at least 27 races, some of which were won by margins as narrow as 18 votes. Recent reports peg the number of constituencies hit by the suspicious calls at 77, and the second-place-finishing New Democratic Party claims it might have won the election in the absence of those “dirty tricks.”

The big question, of course, is whether those calls were an unintentional error or something more malicious. Opposition parliamentarians suspect the latter. “The evidence is mounting that the 41st general election may have been hijacked by the most comprehensive electoral fraud in our nation’s history,” said Pat Martin, a member of parliament from the New Democrat Party, which finished ahead of the Liberals but behind the Conservatives in the 2011 contest. “We’re now in uncharted waters as far as the history of the country is concerned,” said Liberal leader Rae.

As it happens, a similar scandal swirled around the gubernatorial election in my home state of Maryland in 2010. Heading into election day, polls indicated that Republican incumbent Bob Ehrlich was going to lose handily to his Democratic challenger, Martin O’Malley. On election day, more than 110,000 registered Democrats in predominantly black Baltimore City and Prince George’s County got robocalls telling them to “relax” because O’Malley had already won, so there was no need to go vote. According to prosecutors who caught wind of the fraud, the calls were part of a larger plan to tip the election in Ehrlich’s favor by suppressing black turnout in a state where blacks comprise nearly 30% of the population. O’Malley won the election anyway, and the Ehrlich aide responsible for those robocalls was eventually convicted of suppressing voter turnout and sentenced to a month of home detention, fours years of probation, and 500 hours of community service in the targeted areas.

Maryland got another taste of political scandal just a few days ago, when the Washington Post reported that John Leopold, chief executive of Anne Arundel County, had been indicted on numerous counts of official misconduct involving the use of his security detail for personal and political gain. In the parlance of international election observation missions, Leopold’s alleged crimes, which he denies, are the sorts of things get tagged as “abuse of administrative resources.” Compared to what you might read in an observers’ report from, say, Russia or Kazakhstan, the purported political gains were pretty modest, but anyone familiar with the rules of the electoral game would know they were wrong. According to the state prosecutor’s office,

Leopold also used his police escorts to chauffeur him to roadside spots to vandalize his opponents’ campaign signs in 2010…With police idling nearby, according to the documents, the county executive ripped campaign signs out of the ground, threw one down a ravine and tossed another up a hillside. His security staff was also ordered to haul hundreds of his campaign signs to and from his home and collect and deposit contributions into his campaign bank account.

Those actions are clearly inappropriate, but they’re hardly likely to have affected the outcome of the election. More salacious than these low-grade political crimes, and perhaps more illustrative of the kinds of impulses that motivate them both, were Leopold’s alleged personal transgressions. As the Post has it,

Leopold’s indictment comes more than three years after an anonymous 911 call describing naked people in the back of a rocking car led a police officer to a busy Annapolis mall parking lot and a car containing Leopold. That incident prompted a number of county employees to come forward with allegations of sexual harassment by Leopold. But he remained in office and won reelection in 2010…

To facilitate an affair with an employee of the county’s department of parks and recreation, Leopold had his security staff drive him to commercial parking lots as often as two or three times a week [allegedly] to rendezvous with his lover.

According to the civics-class version of the historical narrative, these kinds of things aren’t supposed to happen in rich, long-established democracies. But, of course, they do. The Maryland version of the robocall scandal and Leopold’s alleged corruption might seem like small deals, but let’s not forget that Watergate also happened just 40 years ago, and that wasn’t exactly small fry.

The fact that these scandals happen doesn’t mean there’s no difference between “consolidated” and “unconsolidated” democracies. What it does mean, I think, is that the difference between consolidated and unconsolidated democracies doesn’t reside in the norms and habits of political elites–at least, not entirely. In their book on problems of democratic transition and consolidation, political scientists Juan Linz and Alfred Stepan posit (p. 5) that, “with consolidation, democracy becomes routinized and deeply internalized in social, institutional, and even psychological life, as well as in calculations for achieving success.” If that were true, though, then we shouldn’t see these kinds of scandals erupt in the first place. Political elites would recognize that they can’t win by cheating, and they wouldn’t want to anyway, so they wouldn’t bother to try.

Instead, I think these anecdotes underscore the importance of effective oversight and enforcement–in a phrase, rule of law–in sustaining democracy. The impulse to bend or break the rules in pursuit of personal gain is universal. Norms and values surely shape human behavior, and they clearly vary across societies with different political traditions, but those norms and values can’t overwrite the basic features of human nature. As Hamilton or Madison wrote in Federalist Paper No. 51 to motivate the need for a separation of powers in government,

The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

For thinking about what democratic consolidation means, the story isn’t that Watergate or the robocall scandals or the collected works of Mr. Leopold happened in the first place. The real story is that, when these things happened, they came to light and were not shrugged off or ignored by complicit or indifferent officials. Instead, they were discovered, investigated, and (so far) punished when proved. Those course corrections are what democratic consolidation is really all about, and the agents of oversight and enforcement capable of engineering them, not purity of thought or belief, are the constraints that produce it.

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