by Meena Jagannath and Nikki Thanos

Originally published February 21, 2024 in Convergence Magazine

In the first Dispatch on Democracy, we laid out the urgent need for progressive lawyers to join the fight for a multiracial, pluralistic democracy in the United States by not only protecting formal democratic rights but also accompanying communities in their struggles to democratize all areas of their lives—the workplace, the schools, the economy and more.  Several recent Supreme Court terms have made it painfully clear that we all—especially progressive lawyers committed to multiracial democracy—must acknowledge the limitations of the law and legal institutions. The courts are not and never have been a vehicle of social change on their own; social change requires shifting culture, systems, and power. To confront the growing threat of authoritarianism in the US, we urgently need more lawyers who can back up social movement organizers in a power-building project that is much larger than any one case or policy fight.

We also need to understand the international dimensions of the current crisis.  Recently, our global team at Movement Law Lab, coordinating the Global Network of Movement Lawyers (GNML), worked with folks from over a dozen countries in a multi-month process to analyze authoritarian tactics around the world and strategize about the right to resist. That process informs our offerings in this dispatch. We will unpack what’s behind the rise in authoritarianism both in the US and globally, and what’s at stake if we don’t orient ourselves differently to the moment. We also offer our ideas on what that new orientation could look like.

The current moment is marked by an accelerating climate disaster; pandemic; geopolitical tensions and war; the erosion of democratic norms and institutions; food and energy insecurity; ongoing racism and xenophobia; a migration crisis; hostility towards women, queer, and trans people; and economic precarity. These compounding global crises create heightened states of anxiety and instability the world over, generating a pervasive culture of despair and nihilism that limits a future where peace, political stability, and prosperity are accessible to the many.

The rise of authoritarianism is thus a consequence and an aggravating factor for the compounding crises we are witnessing today, both in the US and worldwide. Any issue, no matter how particular or local, that any progressive lawyer is hoping to advance is inextricably bound up with this current world moment and the rising threat of authoritarianism. We are all responsible for understanding the threat more fully so that we can better play our part in a pro-democratic front to both thwart authoritarian power grabs and build toward a better future.

How authoritarians repress: the global playbook

The present challenges to democracy in the United States cannot be divorced from a broader global context; indeed, the US’s role in deepening these crises is all too evident. Recent examples include refusing to remove intellectual property barriers to universal access to lifesaving COVID-19 healthcare products; spreading a surveillance and counterterrorism framework that has encouraged misuse and crackdowns on civil society globally; and the US’s current role in facilitating the unfolding genocide in Gaza by providing unconditional military aid and diplomatic cover to Israel. We must also remember that the particular form of authoritarianism in the US, while it may have its own local characteristics, is not blooming in a vacuum, but rather in conversation with the Modis, Netanyahus, and Orbáns of the world.

Recent elections in the Philippines, Argentina, the Netherlands and now Indonesia have shown that authoritarianism is on the rise globally, and with it, a playbook is emerging for reshaping state institutions to serve anti-democratic ends. The more we can familiarize ourselves with “authoritarian-light” tactics—think of them as early warning signs—the more likely we’ll be able to interrupt a slip toward fascism.  Authoritarian-leaning leaders are watching and building off their counterparts’ experiments to transform every layer of civic life.  They’re sharing notes on how to: erode democratic institutions; crack down on democratic expression and protest; eliminate oversight and accountability mechanisms; concentrate power in the executive; tighten borders and strengthen anti-migrant policies; roll back gains in the fight against racism and heteropatriarchy; weaken regulatory frameworks to enable corporate capture of the State; and undermine efforts to stem climate change and environmental destruction.

One tactic to monitor is the criminalization of protest to suppress dissent and stymie accountability of authoritarian leaders. This tactic is often accompanied by a marked increase in surveillance and harassment.

In the US, as part of a wave of anti-protest legislation across a number of red states, Florida’s “anti-riot” legislation signed by Governor Ron DeSantis in 2021 created new criminal offenses and increased penalties for individuals who participate in, or even support those who participate in, public protests. In Argentina, new measures in the same vein include a protocol that gives greater license to law enforcement to use repressive tactics on demonstrators; President Javier Milei’s omnibus law (since rescinded) also proposed a slate of new restrictions on the right to protest. Though the law was withdrawn, it is important to note that the Argentinian omnibus law incorporated multiple other tactics from the international authoritarian playbook, including watering down environmental protections and giving the legislature an unprecedented new power to grant law-making authority to the president himself.

Another common emerging tactic among global authoritarians is the use of social media platforms to spread disinformation and initiate smear campaigns against their opposition.  For example, former Brazilian President Jair Bolsonaro’s 2022 campaign used an altered photo to associate his opponent, Lula da Silva, with Satanism. 

In almost all cases, the groups on the frontlines demanding transparency and accountability are the first to be targeted. We’ve seen an uptick in tactics to decertify or forcibly disband human rights organizations and civil society groups, such as those used in Hungary.  In 2017, Hungary passed legislation that requires foreign-accredited universities to have a base in their home country, which it used to legitimize the expulsion of the Central European University from Hungary. It’s also becoming more common to “audit” NGO actors as a thinly veiled means of surveillance, as India did with its foreign funding audits; to blacklist or label civil society actors as “terrorist organizations;” and to search or close down offices. Last year the State of Israel designated seven human rights organizations as “terrorist” and raided the esteemed Palestinian human rights organization Al-Haq’s offices in a brazen move to chill dissent.

Again, we can already see ripples of these tactics close to home: far-right Attorneys General in the US have begun probing the use of audits to target progressive 501 (c) (3) nonprofits and are poised to place procedural hurdles to stymie public ballot initiatives and other participatory democratic mechanisms. Authoritarian-leaning regimes have also censored education and/or the mention of particular subjects, as several U.S. states have done with bills banning critical race theory or targeting trans folks, and Hungary did with the banning of gender studies.

How authoritarians are coming to power

Proto-fascists of late have gained power through a model of “electoral autocracy” or “illiberal democracy” in the words of Hungarian President Viktor Orbán—essentially, a system that preserves some kind of formal elections at the same time that it concentrates power in the executive branch, shrinks space for protest, and weakens the independent press, among other measures. This would be the most likely path towards consolidation of authoritarian power in the US if the MAGA bloc were to win in the 2024 presidential elections and succeed in fortifying authoritarian strongholds at the state and local levels.

Who is aiding the rise of authoritarians?  Authoritarians are often backed by oligarchs, including leaders of extractive and other multinational corporations, financiers, bankers, and techno-oligarchs.  In many cases, these ultra-rich individuals have more financial and political power than the nation-states in which they reside and conduct business.  They often have more in common with each other than their fellow countrymen; just look at Elon Musk’s interest in lithium from northern Argentina and his budding relationship with President Milei.  Authoritarianism ultimately presents one solution to a core challenge the ruling class faces today: how to divert public attention away from the corruption, nepotism, and wholesale theft of public goods that is a central feature of contemporary racial capitalism.

Fifty-plus years of neoliberalism have squeezed public coffers, leading to an overall decline in the quality of life for working people.  Racist and xenophobic scapegoating serves to obscure the real cause of worsening conditions—the influence-peddling of a motley crew of global elites who benefit from this particular form of racial capitalism.  To consolidate public opinion in their own favor, authoritarians—often at the behest of the ruling political class —charge the oppressed as the cause of societal discontent, dislocation, crisis, and poverty.  Common scapegoats include low-income people, migrants (especially Black and Brown migrants), Muslims, Jewish people and religious minorities, LGBTQ+ folks, indigenous groups, and drug users, as well as people facing mental illness and housing insecurity, among others.

In the US, these conditions have helped the far Right consolidate power and metastasize white nationalist sentiment in the MAGA popular base.  Populist demagogues often cast themselves as saviors who will take society back to an imaginary past time of prosperity. As the sustained popularity of the “Make America Great Again” banner and “Build the Wall” slogans advanced by Trump in his campaigning suggests, this tactic has no less allure in the US.

Dire consequences if authoritarianism grows in the US

Authoritarianism is a threat to every progressive movement in every country where it arises—and, as the shared ‘playbook’ above demonstrates, it becomes a threat to progressive movements in other countries, as new “authoritarian-curious” leaders start adopting tactics used elsewhere. To paraphrase Dr. Martin Luther King Jr., authoritarianism anywhere is a threat to multiracial democracy everywhere. First, most people think of presidents or heads of state when they think about authoritarianism, but the path towards authoritarianism begins long before authoritarians take federal power, in smaller and sometimes invisible places. Authoritarian tactics are often tested out at a regional, state, or town level—just look at Florida and Texas. Oftentimes, especially in contexts where folks face multiple, simultaneous fires, those targeted zones get sacrificed. That is a mistake, and one we must urgently correct.

For example, Florida Gov. Ron DeSantis has moved a shocking number of draconian policies since taking office in 2018, including banning books, chilling protest, and undermining the independence of public universities and colleges. In Texas, Gov. Greg Abbott has defunded the legislative branch, used his office to retaliate against his enemies, bused migrants to Democratic states, and blocked judges from releasing prisoners who couldn’t post cash bail.  If left unchecked, these “small” experiments grow and spread.

In Louisiana, recently elected Governor Jeff Landry learned from the Abbott and DeSantis playbooks and is planning to implement even more troubling restrictions in Louisiana. We can see a similar pattern of problematic tactics spreading from state to state in the fight for reproductive and abortion rights.  Since June, 14 states have passed near-total abortion bans while two states have banned abortion past roughly six weeks of pregnancy, locking in the Supreme Court’s overruling of Roe v. Wade.

Second, democratic backsliding isn’t always easy for the public to see—and the powers that resource and manipulate our systems can be even more elusive. At the direction of the Federalist Society, the judiciary has been transformed into a powerful arm for advancing a reactionary right-wing agenda. Now that the Supreme Court has been captured, it is quite easy to see the role of the Federalist Society. For decades, however, the behind-the-scenes infrastructure that made the capture of the Court possible operated largely in the shadows. 

Presently, those same forces are attacking Chevron deference, a well-established precedent in administrative law that says ambiguous policies are best interpreted by the agencies closest to an issue.  If they win, it’ll be the court instead that makes the final call—a biased, undemocratic conservative court.  Similar efforts are underway to file legal cases that would manipulate key pieces of legal doctrines that allow people to access the courts, empower federal agencies to regulate highly specialized areas like environmental protection, labor and food and drug safety, and the funding of those mechanisms.  Meanwhile, 28 states have called for an Article V constitutional convention under the conservative balanced budget amendment effort—just six states shy of the 34-state threshold needed for such a convention to take place. Though the Supreme Court ultimately struck down the independent state legislature doctrine, states have continued to chip away at voting rights and make attempts to undermine the electoral system.

The above examples make clear that we must keep our eye on secretive behind-the-scenes infrastructure and maneuvers from the MAGA bloc. At the same time, we also must take seriously the bloc’s public statements and plans. The third thing our team has learned is that today’s authoritarians often publicize—even boast—about their plans to concentrate power and erode protections for the most vulnerable.  Nowhere is that clearer than in the Heritage Foundation-led Project 2025 document released this summer, a frighteningly specific handbook to unmake government as we know it and drive the country towards right-wing authoritarianism should any Republican win the next election. 

In its 1,000+ pages, Project 2025 provides a roadmap to dismantle federal government institutions by centralizing executive authority, blurring the separation between church and state, firing (or making it easy to fire) civil service workers and filling those vacancies with ideologically aligned individuals, and weaponizing the executive branch. The plan also proposes sweeping legislative changes: hardline immigration policies, a rollback in climate action, the criminalization of abortion access, privatization of public education, and much more. If they are successful in implementing even a small portion of this plan, no sector of society will be untouched.

A recently released report by United to Protect Democracy lays out six elements of the authoritarian playbook expected to be wielded in the event of a 2024 MAGA presidential win: (1) abuse of the executive pardon; (2) abuse of prosecutorial powers to target opponents; (3) abuse of regulatory power to reward loyalty and punish opposition or oversight; (4) expansion of the use of federal law enforcement;  (5) wielding military power domestically; and (6) a refusal to leave office at the end of the term. The report paints a chilling picture of emboldened cronies, weaponized police and prosecutorial powers deployed against critics, sanctioned political violence, chilled speech or dissent, degraded safety and privacy for those deemed as opponents, and dictator’s rule without limits. It is but the latest analysis that details the extent to which the MAGA faction intends to consolidate power behind an autocratic leader and transform government as we know it.

So very much is at stake—including core rights that we often take for granted, and the contours of the terrain on which we’re accustomed to waging fights.  To allow our democracy to erode and give way to the MAGA bloc (as per their own plans) would mean the loss of the very means by which we have won rights, resources and participation for our communities. It would mean the disappearance of a civic space that has been important both for making affirmative demands and holding leaders accountable.

As we see voting rights, the right to protest, a free press, free speech, access to books, the right to organize, and privacy rights being undermined; as we see our people surveilled, harassed and charged under the frame of terrorism; as we see police militarized and omnipresent; as we lose our ability to challenge unjust laws and frameworks through traditional legal means—our very means of resisting are under attack. This is work upon which all our other work depends.

A power-building approach to defeat authoritarianism

To be clear, a MAGA 2024 presidential win presents acute threats, but the threats we outline above are chronic—they will continue to simmer on a slow burner around the United States and throughout the world. The tactics used by authoritarians will continue to be shared, mimicked, and refined across borders.  But this is not cause for despair; quite the contrary. We know what kind of fight-back strategies work, and we have the potential to not only defend against the authoritarian threat but also catapult our country towards a profoundly different, pluralistic, multiracial democracy.  

The final takeaway from our global mapping of authoritarian trends is that the best push-back strategies are powered by a vibrant and protected civil society. The role of organizers is thus central—as agitators, mobilizers, popular educators, and pollinators between sectors. The role of lawyers is similarly multifold. We need lawyers to continue to defend the gains of the past and challenge harmful policies. We also need lawyers by the tens of thousands to defend communities in day-to-day democracy fights that are much closer to home—for example, in unionization efforts, participatory budgeting processes, and neighborhood school boards.   While these efforts take place on US terrain, we must remain in mindful solidarity with peoples’ struggles around the world as the authoritarian wave is a global phenomenon.

Those who have borne the brunt of economic and political injustice in the US—notably Black and Indigenous people—have long called out the hypocrisy of US democracy, and they are right. We cannot simply reform our institutions or file the perfect set of lawsuits to curb the threat of rising authoritarianism. We must build, slowly and purposefully, alongside social movements, and that requires a power-building approach to law and organizing. We’ll explore all that and more in the dispatches to follow.

REFLECTION QUESTIONS

• Have you observed any tactics from the authoritarian playbook used at your state/local level? Which ones? How have or how could these tactics affect you and your work?

• To what extent have you been aware of the ideas and plans that have been advanced by the MAGA bloc? Which parts of their plans concern you the most? Which parts surprise you the most?

• What are some ways your work is contributing to building the strong civil society we need to push back against authoritarian threats? How can you shift your work to more consciously counter these threats?

• How does the global rise in authoritarianism relate to anti-democratic threats in the US? Why do you think it might be important to be aware of how authoritarians are rising to power in different parts of the world?

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