Friday, October 30, 2020

Why Don't Republicans Simply Admit Now that They'll Happily Carry Out Trump's Coup?

by Neil H. Buchanan

In 2016, the Republicans in the U.S. Senate bluntly told everyone that they were not going to take up Barack Obama's nomination of Merrick Garland to the Supreme Court.  Everyone was shocked and did not truly believe they would go through with it, but it happened.
 
In late 2017, congressional Republicans shed all pretense that they were going to follow normal (or even minimally rational) procedures in passing their punitively regressive and expensive tax bill, yet even avowed proceduralists like John McCain and NeverTrump fiscal faux-hawks like Jeff Flake happily went along with the multi-trillion dollar upward redistributive scheme.

At multiple times in the past two decades, Republicans have announced that they were blocking even the most minimal gun control legislation, even when ninety percent of the public supported it.
 
In early 2020, Senate Republicans announced that they were not going to take their constitutional duty seriously by holding a real trial after Donald Trump was impeached.  Mitch McConnell even went on TV and told everyone that he and his colleagues were coordinating the sham trial with the White House.  When John Bolton made himself available to testify, Republicans simply said that they were not interested in hearing from him.

Last month, Senate Republicans announced that they were going to fill the late Justice Ruth Bader Ginsburg's seat, laughing off the idea that they would take seriously their own statements about filling Supreme Court seats in an election year.  They could not have been more clear in saying: We can get away with it, so we will do it!  And then they did.

The point is that Republicans are not shy about simply saying what they are going to do, no matter how unpopular it is.  Now, people are wondering whether Republicans are going to steal the election for Trump.  And although Trump himself has stated clearly that replacing Justice Ginsburg was all about stealing the election, others are acting as if this is not a done deal.

Why bother with the pretense?  A few thoughts.

In my new Verdict column, published this morning, I expand on a possibility that has been simmering in the background for a few weeks, which is that Republicans will use their state legislative majorities in key swing states (Michigan, North Carolina, Pennsylvania, and Wisconsin) to steal the election for Trump.  Those states are interesting not just because they are swing states but because they are all in the awkward situation of having Democrats in their governors' mansions while their state legislatures are run by (gerrymandered) Republican majorities.  Can those legislatures do Trump's dirty work?

Working from a recent piece by Professor Dorf and his two co-authors (here) and a complementary but not overlapping piece by Illinois Law's Dean Vikram Amar (here), I explain why the legal case against allowing state legislatures to bypass their governors when appointing electors is airtight.  Also on Verdict this morning, Austin Sarat and Daniel B. Edelman explain why the law as we understand it now is absolutely clear -- and clearly against Trump's scheme.  But of course, that has never stopped motivated Republican-appointed jurists from making sh*t up as needed.  Much of my column, then, considers evidence that the Republicans in robes on the Supreme Court will soon do Trump's bidding.  It is not an optimistic column.

But my question here is motivated by a different, though related, question.  As Dean Amar's column reminds us, nothing in the U.S. Constitution requires states to tie the appointment of electors to popular elections at all.  His point is simply (but powerfully) that the hyper-conservatives on the Court would have to ignore logic and precedent to read the word "legislature" narrowly enough to cut governors and state courts out of the determination of whose electors are appointed.  But again, it is shocking but uncontroversial that the Constitution would allow state legislatures simply to set up a process for appointing electors that has nothing to do with what most of us think of as the election itself.

This caused me to wonder: What about the swing states that are under full Republican control, not just in their legislatures but in the executive branch as well?  If a governor's participation is required, after all, what about states where the governors would happily sing along?  Arizona, Florida, Georgia, Iowa, Nebraska (which has a swing district), Ohio, and Texas all fall into this category.
 
Why do Republicans in those states not simply take themselves off the table in advance?  Florida's Republicans, for example, did not bother to hide the ball when they overrode a citizen-passed state constitutional amendment re-enfranchising ex-felons.  Georgia's governor became governor by openly suppressing votes in 2018 when he was Secretary of State.  Texas Republicans are Texas Republicans.  Why be coy now?

To be clear, they could still do this after the election.  According to Amar's analysis, the law would not allow states to change their manner of appointing electors after Election Day itself, but that merely implies that those states could hold emergency sessions on the evening of November 3 to take the appointment of electors away from voters, with Republican governors signing on before midnight.  Or, more likely, they could count on their clique in the U.S. Supreme Court to say that Amar is wrong and Republicans can do whatever they want, whenever they want.

As disturbing as those possibilities are, I cannot get past the question of why the most brazenly power-driven group of politicians in American history is not being more brazen up front.  To repeat: Why be coy now?

One possibility is that they are counting on the gullibility and confusion of the supposedly liberal pundit class to do a lot of work in justifying their power grab ("Well, to be fair, there are circumstances in which the Republican position wouldn't be completely wrong"), and while some brazenness is acceptable, too much shameless grabbing of power would risk a true backlash.  Consider a recent op-ed column in The Washington Post by a law professor who is identified as a "contributing columnist" to The Post, arguing that a landslide for Biden is needed to prevent Trump from stealing the election.

That suggestion is hardly controversial, and if it were merely a matter of saying (as, for a prominent example, Nancy Pelosi does) that a larger loss is more difficult to erase, then that would be fine.  But instead, the op-ed writer starts by saying that he was against impeaching Trump: "Senate Republicans were correct to resist that move. Sen. Lamar Alexander (R-Tenn.) argued to 'let the people decide' the president’s fate in November, and I supported that approach. It does not help democracy to deprive one party of its chosen candidate."
 
It also does not help democracy when one party's candidate uses the vast powers of the presidency to rig his own reelection, of course, but fine.  The jaw-dropping part is this:
"The logical consequence of that acquittal is that [Republicans] now shoulder a responsibility to ensure that their admonition is put into practice.  Letting the voters decide now really means letting the voters decide — not attempting to subvert their choice. It means that if Trump tries to secure a second term despite a landslide against him, other elected Republicans must resist that move even if they have the raw power to help Trump’s effort.

"One would think decisive results would tamp down the hyperpartisan forces that might try to defy the popular vote. But given the current political culture of the battleground states, where Republicans hold majorities in the legislatures — and do so after the most aggressive cycle of hyper-partisan gerrymandering in U.S. history — there are reasons to worry.

"If the race tightens at the end, there’s even more cause for concern, since any temptation toward a power grab will face less counterpressure."

Just think about that third sentence in particular: "It means that if Trump tries to secure a second term despite a landslide against him, other elected Republicans must resist that move even if they have the raw power to help Trump’s effort."  But why is this in any way tied to a landslide?  If Trump tries to secure a second term even after a very narrow loss, why is that somehow better?  Yes, the author is mixing in some realpolitik claims about what Republicans would be willing to do, but I find it amazing that he is saying that "letting the people decide" is somehow more of an admonition depending on how clearly Trump loses, not on whether he loses at all.

My point is that if even a person who clearly is opposed to Republicans' efforts to steal the election is willing to suggest that somehow a small theft would be acceptable (or non-outrageous enough that we should not be too upset about it), then we are in real trouble.  And even if I am being somewhat ungenerous in my reading of this particular piece (not that I am, but others might be more charitably willing to ignore the clear implication), Republicans generally count on this kind of caution and confusion among their opponents to get away with things.
 
"We're going to steal the election for Trump by having all Republican legislatures and governors pass laws now, guaranteeing their electoral votes to Trump," is a bad look, even for Republicans.  And it would certainly concentrate the minds even of non-Republicans who think that election rigging is not an impeachable offense.  So being coy now might avoid enraging otherwise milquetoast commentators.

But why should Republicans care about that?  The pundit class uniformly excoriated them for the Garland blockade, the gun-lobby capitulation, and all the rest.  So what?
 
Is it fear of mass protests in the streets?  For those Republicans who, unlike Trump, do not salivate at the idea of violent right-wing terrorists disrupting those protests, such protests are more likely (and more likely to be intense) if the Republicans steal the election after Biden appears to have won it.  Concerns about mass mobilization, then, seem to be either the same no matter the timing of the theft or, if anything, to cut against waiting.

One especially cynical possibility is that elections are simply good business.  Being a citizen in a swing state is annoying due to all of the advertising, but the local economies certainly benefit from media purchases, travel expenses, and so on.  Why would states -- especially sunny states that are especially hurting for tourist business right now -- take themselves out of a campaign that has already seen a combined $14 billion in spending?  And of course, the politicians themselves get to spend time in the public eye, which they cannot resist.

Of course, that does not always go well, as soon-to-lose-again Senator Martha McSally learned when Trump humiliated her at one of his super-spreader rallies a few days ago.  Even so, the broader point is that even though Republicans possess (and will probably ultimately exercise) the raw power to rig the Electoral College for Trump, they do have other elections to worry about.  The Seventeenth Amendment requires popular election of U.S. Senators, and House members must be elected as well.

Even in states that have created extremely gerrymandered state legislatures (Wisconsin famously having a 63-36 Republican majority in its state House, even though the state leans blue and Democrats received a clear majority of votes in state House races in 2018), exposure to voters is still risky.  If even people like Cindy McCain are announcing support for Biden now, imagine what would happen if Republicans simply announced that they have the power and the determination to negate the presidential election -- specifically because they dominate state legislatures unfairly?
 
In reality, it is probably not true that people in rural Wisconsin would punish Republicans for such an open power play, even if the political class was in full freakout mode.  After all, they hate the political class, which has (very appropriately) been in full freakout mode ever since Election Day 2016.  Still, why risk it?  It is better for Republicans to close off any avenue by which citizen anger at being effectively disenfranchised might have an effect.

And that, I think, is the key reason that Republicans are still being coy about all of this.  When the moment comes post-Election Day to carry through on Trump's coup, I suspect that they (including at least five Supreme Court justices) will be all in.  For now, however, they see an advantage in pretending not to be fully cynical.

But what about future elections?  As Antonin Scalia angrily sneered in 2008 when asked about Bush v. Gore, Republicans will count on people to "get over it."  Once they have themselves entrenched in power after 2020, they will be able to count on people's short memories and lack of necessary stamina to continue to oppose Trump's coup.  And as Trump has said, at that point he will "negotiate" a third term.

Do I think that this is absolutely set in stone?  Certainly not.  Do I hope that at least two Republican-appointed justices can be found to uphold the rule of law?  Of course.  But I am anticipating a great deal of nail-biting -- and quite a lot of disappointment -- even if the voting results that are reported starting next week look very promising.  Republicans have created a post-shame era of brutal power politics, and the rest of us have to live in it.

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