Bill Scher is a contributing editor to Politico Magazine, and co-host of the Bloggingheads.tv show “The DMZ.”

One month ago, Michael Avenatti—the Stormy Daniels lawyer, Donald Trump antagonist, and yes, potential 2020 presidential candidate—spoke at an Iowa Democratic Party fundraiser and declared to a cheering crowd that there was “no greater question facing our party and our nation” than “how” Democrats fight. He chastised Democrats for having “a tendency to bring nail clippers to a gun fight” when they should be fighting “fire with fire.” Avenatti is the lead storm chaser in a little-noticed front in the 2020 Democratic presidential campaign: Who can out-Trump the sitting president by going the furthest to break procedural “norms”?

Even if Avenatti has little chance of winning the nomination, he could still wreck the 2020 Democratic race. In fact he’s already doing it, by using his considerable media skills and political instincts to frame the contest around how far Democrats should go when wielding power, and to pressure his rivals to follow his cue. If we begin measuring candidates on the basis of who has the weakest attachment to the written and unwritten rules which have stabilized American democracy for centuries, the country will be in serious danger.


The reverberations from Avenatti became apparent during the Senate Judiciary Committee hearings for Brett Kavanaugh’s Supreme Court nomination, as two likely presidential candidates sought to prove their willingness to subvert norms. Sen. Cory Booker boasted about risking expulsion by releasing documents deemed classified by the Republican-led committee, to protest attempts to minimize access to Kavanaugh’s emails from when he worked in the George W. Bush administration. And Sen. Kamala Harris shared on Twitter a truncated video clip of Kavanaugh referring to birth control pills as “abortion-inducing drugs” that left off his attributing of the phrase to anti-abortion Catholic plaintiffs. Then when media fact-checkers called her out, Harris, seemingly following Trump’s “never apologize” philosophy, refused to admit error or recalibrate her charge.

The Democratic antics during the Kavanaugh hearings came on the heels of Avenatti issuing an ultimatum on Twitter: “In light of the [Merrick] Garland seat that was stolen, together with the events of today and the hiding of docs, etc., the court must be expanded to 11 seats after 2020. The Dem nominee must commit to this or not receive the nomination IMO.” During the hearings, Avenatti proceeded to bird-dog both Booker and Harris. In a two-tweet thread, which followed a dramatic interrogation of Kavanaugh by Harris that has failed to amount to anything, he cautioned: “I sincerely hope (1) those four docs that were released this morning by Mr. Booker really were still confidential, so he can prove the GOP is lying and (2) that Ms. Harris discloses the evidence of the communications she suggested last night exists and then eviscerates Kavanaugh. Because if not ... ”

We can finish his sentence: If not, it shows these pretenders don’t know how to fight the way I do.

To follow the call to put down the clippers and pick up the gun with an embrace of court-packing clarifies what exactly Avenatti means by fighting harder: fighting without restraint by governing norms. Avenatti is tapping into a desire on the left to burn the rulebook that has simmered since the 2000 presidential recount. In the opening of the 2004 agitprop film Fahrenheit 9/11, Michael Moore skewered runner-up Al Gore, who resisted the unofficial tally for 35 days, for ultimately accepting legal and constitutional reality. Moore’s movie revisited the spectacle when Gore, as president of the Senate, had the unfortunate ceremonial role of certifying the 2000 Electoral College count. Several House Democrats made a last-ditch attempt to object, but Gore turned them away because their petition lacked a Senate sponsor. Moore didn’t acknowledge that Gore’s actions were necessary to avoid a constitutional crisis that could easily have led to violence. He just demeaned Gore as weak and callous. “One after another,” said Moore, the primarily African-American dissenters “were told to sit down and shut up.”

This Democratic distrust of constraining norms intensified during the Obama presidency, which was constantly buffeted by Republican obstructionist tactics. When congressional Republicans would refuse to raise the debt ceiling in order to extract concessions, some (including Bill Clinton) called on Barack Obama to stretch a Civil War-related provision in the 14th Amendment and declare the entire debt ceiling unconstitutional. Others, like New York Times columnist Paul Krugman backed another legally questionable and economically risky proposal: for Obama to direct the U.S. Treasury to mint a trillion-dollar coin to get around the debt ceiling and pay its obligations. Of course, these proposals were in response to Republican threats to governing norms—namely, seizing the full faith and credit of the United States for use as a bargaining chip. But you can’t protect the sanctity of government debt obligations by undermining the sanctity of government debt obligations.

In the final days of Obama’s tenure, calls rose for Obama to give Garland, the Supreme Court nominee whom Republicans refused to consider, a recess appointment. As the New Republic’s David Dayen strained to argue, on January 3, 2017, there would have been “metaphysical” space between the end of the 114th Congress and the beginning of the 115th, in which Obama could claim the Senate was in recess and appoint Garland without Senate confirmation.

After none of those fantasies came to pass, and after watching Trump chew up and spit out norms as part of his daily routine, the movement of progressive norm-breakers has grown. Roosevelt University political science professor David Faris this year published It’s Time to Fight Dirty, which called for packing the Supreme Court, ending the legislative filibuster, and breaking up California in hopes of creating more blue states and more Democratic senators. Now, Avenatti is poised to elevate court-packing to the level of progressive litmus test.

If the progressive credentials of the 2020 field become judged based on the extent of their disregard for norms, the progressive movement, the Democratic Party and American democracy will all suffer. If Democrats and progressives are perceived as driven by the accumulation of personal power, not the betterment of America as a whole, they will find it challenging to claim the moral high ground when making the case for their preferred policies. And if both parties continually rewrite the rules to consolidate their power whenever given the opportunity, faith in democratic institutions will erode and sow the seeds of authoritarianism.

The latter point was made by Harvard University government professors Steven Levitsky and Daniel Ziblatt in the book How Democracies Die: “This is how elected autocrats subvert democracy—packing and ‘weaponizing’ the courts and other neutral agencies, rewriting the rules of politics to tilt the playing field against opponents.” Faris finds this concern quaint at a time when Republicans have been engaged in scorched earth governance, akin to “fretting about whether you should shoot the terrorist sitting next to you on your flight after he’s already blown a hole in the hull.”

Faris’ hyperbole obscures the fact that Democrats have reaped benefits not only from respecting norms, but also from occasionally ending them. Consider the demise of the judicial filibuster. While Republicans guffaw that Sen. Harry Reid largely scrapped it in 2013, only to grease the path of Trump’s nominees, it is also the case that the rule change helped Obama overcome furious Republican filibustering and appoint two more judges than George W. Bush. Yes, Trump is going to get his share of judges, but Democrats will get another turn soon enough. That rule change didn’t fundamentally undermine our norms; it allowed the usual political pendulum swings to maintain a rough judicial balance.

Even so, if Obama had tried one of those cockamamie, and legally dubious, debt-limit schemes in his first term, the full faith and credit of the American government would have been called into question, risking an economic meltdown that would have effectively ended his presidency.

And if Reid and the Democrats had ended the legislative filibuster, whatever ambitious laws they got passed under the new rules would have been repealed by a Republican Congress exploiting the same. Instead, today’s Republican legislative output, and ability to roll back Obama’s policy legacy, is greatly constrained.

Or if the Obama Democrats had undermined the legitimacy of the judicial branch with a brazenly illegal recess appointment of Garland, Republicans could be ignoring Supreme Court rulings today as illegitimate. Keep in mind that there are conservatives—most prominently Mike Huckabee—who disparage the “false god of judicial supremacy” and urge Republicans in the other branches of government to ignore unfavorable judicial rulings.

Yet Trump and the Republican Congress have not gone that far. While we appropriately recoil at Trump’s authoritarian musings, he has not dared violate the essential norm of judicial review, even though that norm is suffocating his project of dismantling Obama’s regulatory legacy. Attempts to roll back Obama-era rules protecting student borrowers, maintaining chemical plant safety, regulating waterways, cutting methane and ozone pollution, and combating segregated housing have been blocked by judges, several of whom were appointed by Obama.

Democrats such as Avenatti who pine for court-packing don’t look to Obama or Reid for inspiration but Franklin D. Roosevelt, who tried to do so in 1937. In their telling, Congress didn’t go along with Roosevelt’s scheme, but the Supreme Court underwent an ideological shift soon after his proposal, suggesting that the norm-busting won the overarching war.

But that version of the story misses a key fact: The Supreme Court justice who made the “switch in time that saved the nine,” Owen Roberts, switched in a key minimum wage case in December 1936, two months before Roosevelt announced his court-packing plan. Scholars still debate why exactly Roberts switched. While it’s possible that speculation of a court-packing plan factored into his thinking (though Roberts denied it), the fact remains Roosevelt didn’t need to actually pack the courts to get what he wanted.

More important, Roosevelt’s insistence on lobbying Congress for his proposal after the court had switched was a political disaster. The public was appalled at the power grab. Roosevelt’s increasing alienation from conservative Democrats contributed to a 1938 midterm debacle that stymied his domestic agenda for the rest of his presidency. An old chess adage proved correct: The threat is stronger than the execution.

In a similar vein, Booker and his fellow Judiciary Committee Democrats weren’t out of line in leaking “confidential” documents that had no business being confidential. Booker’s error was not in the leaking, but the boasting—suggesting that his willingness to break rules was proof of his mettle. Harris is hardly the first politician to get a little overzealous in spinning the meaning of someone else’s words. But it’s hard to condemn Trump for disparaging the news media and then not submit yourself to the judgment of its fact-checkers. Even if the transgressions are not equivalently grave when assessed in isolation, they can feed a perception, however unfairly, that “both sides” do it.

When Avenatti says, “When they go low, I say, we hit harder,” he is explicitly encouraging both sides to do it. Such an attitude may become depressingly common as Avenatti sets the pace of the primary. Democrats need not be angels. A strategically employed sharp elbow has its uses. But a race to the ethical bottom should not be welcomed. A party that has been properly warning throughout the Trump presidency that “this is not normal” should be careful not to become abnormal itself.