Monday, December 21, 2020

126 Legal Novices or the New Republican Normal? What Comes After Trump?

by Sidney Tarrow

On December 11th, 126 Republican members of the House of Representatives signed an amicus brief to the United States Supreme Court in support of the State of Texas’s complaint that the votes of four states in the Presidential election should be declared invalid because of supposed electoral irregularities. Texas’ suit was quickly slapped down by the Court. Two Justices, Alito and Thomas, thought the Court should have docketed the case because, in earlier, lower-stakes cases, they had expressed the quirky view that the relevant statute confers on the Court no discretion to reject such “original jurisdiction” suits.  But even Alito and Thomas joined the other seven justices in voting to deny Texas the extraordinary intervention it sought. Although Texas cited The Heritage Foundation’s study of electoral fraud (cit., pp. 11-12) as an authority, even conservative lawyer Hans Von Spakovsky wrote shortly after Texas filed its case, “this is the legal equivalent of a Hail Mary pass.”

No serious analysis of the Texas suit gave it any chance of getting through the Supreme Court. But the case raises a different kind of issue: who were the 126 members of the House who went on record in support of Texas’s case? Were they legal nonentities who were willing to become mouthpieces for one of the most outrageous legal/electoral theories since the 1876 Hayes/Tilden standoff, or were they the heart of a new and more frightening post-Trumpian right?

To be sure, among the amici there were some reliably unhinged stalwarts like Representative Louis Gohmert of Texas, who characterized Texas’ suit as an effort to “preserve our republic,“ and like the vociferous Jim Jordan of Ohio, who declared that “Over 50 million Americans think this election was stolen.”  “It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category,” wrote Steve Vladeck on Twitter. In a blog post, electoral law expert Rick Hasen called the Texas filing a “press release masquerading as a lawsuit.”

In support of the first thesis, it would be easy for the Democrats to dismiss eccentrics like Gohmert or incendiaries like Jordan, but that would give the governing party no one with whom to negotiate. Moreover, a quick look at the signers’ resumes will show that they are not the unlettered racist and sexist “base” that Bryan Schaffner and his collaborators found in the Trumpism electorate. The Republican legislative elite is a far more sophisticated and coherent conservative bloc than Trump’s MAGA-hat-wearing followers. As Matthew Grossman and David Hopkins put it in their fine book, Asymmetric Politics (2016), “Conservatism [is] a vibrant intellectual movement that built institutions to promote broad principles and cultivated a broad base of popular support, establishing itself over the past 50 years as the main intellectual and popular engine of Republican politics” (p. 80). What is important to recognize is that they are part of a movement, one whose roots go back much further than the advent of Donald Trump and are virtually certain to survive his political demise.

This is not a movement that admits of a great deal of internal diversity. Driven by a mixture of ideological dogma and narrow self-interest under a carapace of populism, it became an instrument for unpopular economic programs, as Lance Bennett and Stephen Livingston write in their penetrating new book, The Disinformation Age. This disjuncture left the party with an umbilical connection to rightwing media sources, resulting in “attacks on the press, the spread of hate and propaganda, efforts to exclude various minority groups and the rise of ethnic nationalism” (p. xiv).

Underlying this ideologically structured movement, with its indifferent relationship to the truth, there developed a base that is not so much misinformed as uninformed – even on issues of great moment, like the current Covid-19 Pandemic. When media tracker SocialFlow tracked clicks from roughly 4,000 media entities on COVID-related pages, it found that States that voted for President Trump tended to have high coronavirus caseloads compared to how much COVID content they read online, while the opposite is true of states that voted for Biden and Harris. While Biden voters were more likely to heed public health guidelines and trust information coming from mainstream media sources, Trump voters were more inclined to tune them out. “It’s clear that stories about COVID simply don’t animate red state residents the same way they do those in blue states,” SocialFlow CEO Jim Anderson told Axios.  Many of this “new” GOP base came out of the Tea Party insurgency, unaffected by information that did not come from their media crucible and prepared to hold the feet of legislative elites to the fire when they don’t show a sufficiently determined level of fealty.

The danger of Trump’s movement is not that it is made up of an uninformed mass of voters waiting passively for tweets from the master, but of well-organized groups of people who know how to mobilize others. A large portion of Trump’s core supporters came to him with substantial institutional resources defined by clear collective goals. They offered Trump not only unflinching electoral support but also organizational skills honed by participation in evangelical movements, NRA-sponsored gun clubs, and Koch network-backed nonprofits. The 126 House members who signed on to the Texas amicus brief were responding to this electoral base rather than to any hope they might have had of disenfranchising the voters of Georgia, Pennsylvania, Michigan and Wisconsin. They will be with us long after Donald Trump has either faded from the media footlights or gone to jail.

A renewed neo-Trumpian movement will capitalize on three aspects of the current state of affairs:

First, Biden’s effort to revive the economy, support disappearing small businesses, and fight climate change through increased public spending will provide an easy target for Republicans who suddenly recall that they are deficit hawks.  Second, the notable presence of the educated women and people of color with whom Biden is staffing his administration will irritate the sexist and racist nerves that many of them possess.  But the most lethal tool in the armory of the neo-Trumpian movement will be the campaign that Trump has already launched to delegitimize Biden’s election. As Hitler learned after Germany lost World War One, nothing works better to mobilize a populist base than stoking the memory of an imagined stab in the back. That is precisely the function of otherwise incomprehensible efforts like Texas’ effort to disenfranchise the voters of four other states. (If you find the Nazi comparison too incendiary, consider how, after losing his reelection bid in 2002, Viktor Orb├ín spent his years out of power rallying his right-wing populist base with bogus charges of fraud, which in turn fueled his return to the Prime Ministership in 2010 and the ensuing destruction of Hungarian democracy.)

What will the Democrats have to do to stave off these attacks on the legitimacy of their rule? It will be tempting but mistaken to dismiss the neo-Trumpist movement as an extremist fringe, for that would surely throw them into the arms of the criminal elements on the outskirts of the Trumpian corona. The goal should be try to recapture them for a constitutional conservative minority. There are three things that Democrats can do to move in this direction:

The first is to distinguish between the various sectors of the Trumpian movement and encourage a division between the party’s lunatic fringe and constitutional conservatives, like my own Representative Tom Reed, who moved from an extreme right position to a leadership role in the Problem Solvers’ Caucus.  A substantial part of Trump’s support in 2016 was based on pro-business voters and was transactional, rather than ideological. The business leaders who moved away from Trump after Biden’s victory are unlikely to support a Democratic agenda, but they are equally unlikely to support another populist like Trump, who promises chaos rather than a stable business climate. We must hope that constitutional conservatives like Judge Matthew Brann, who slapped down Trump’s lawyers’ claim of fraud in the Pennsylvania elections, and the Michigan election official, Aaron Van Langeveld, who defied his national and state party chairs, will continue to resist the blind Trumpism that we saw in the Texas Supreme Court suit.

Equally important will be the effort to transcend the sterile fight in the Democratic party between its progressive and its centrist factions and to reorient the Party toward the strategy that won it the White House in November – a frank defense of liberal democracy.  This will involve an effort to hold together the various strands of the anti-Trump resistance that emerged soon after the 2016 election. As Trump’s administration revealed a tendency to evolve into elective authoritarianism, as I have written elsewhere, the Resistance coalesced from the separate claims of these groups into a common campaign organized around the preservation of democracy.

With Trump defeated and Biden predictably re-emerging as the moderate liberal he has always been, the Resistance/Democratic party alliance has already shown a tendency to dissolve into its various ideological and interest group components, led by progressives like Bernie Sanders, who continues to see modern politics as the history of class, and younger radicals whose knowledge of history leaves much to be desired. Nothing would be more beneficial to keep a potential neo-Trumpian movement in the public eye than a Democratic party that embraces the class-laden program of Sanders and his younger allies.

The most effective – and, indeed, the most essential – weapon with which to combat the coming neo-Trumpian movement will be to remind Democrats of what can happen when progressives and moderate liberals turn against each other, and to deliberately work to unite the resources of the former Resistance with the campaign for racial justice into a movement to preserve democracy.

Some observers – like Tom McCarthy, writing recently in The Guardian, would have us rely on the buttresses of decentralization, turnout, transparency, the courts, and the media to oppose neo-Trumpism.  While I share McCarthy’s hope, I worry that these were the very institutions that allowed Donald Trump to come to power in 2016. Without a concerted movement/party alliance in civil society, I fear that Trump and his movement will give us more of the same.     


Sidney Tarrow is the author of Power in Movement (2011), and of the forthcoming study, Movements and Parties in American Political Development (Cambridge, 2021).


Frank Willa said...

Thank you

Henry Baker said...

“the ensuing destruction of Hungarian democracy“

I don’t know too much about Hungary or it’s government, but a quick google search revealed to me that Hungary has had free and fair elections in 2010, 2014, and 2018, with elections scheduled for 2022.

What do you mean by “destruction of Hungarian democracy” and you could you provide a citation in support of this assertion?

Joe said...

Justice Alito was rather concerned about a brief by Senators Whitehouse and four others (discussed at the time by Prof. Segall here) but I think the House brief was a lot more concerning. There, the Supreme Court had a chance to have a strong rejection of the lawsuit and people like the Supreme Court reporter vet Lyle Denniston and Tom Goldstein (who is a regular SCOTUS advocate so might have a reason to be low key about criticism) supported more than a brief conclusionary per curiam rejecting the lawsuit.

Anyway, the broader concern here remains even with Biden winning. "The Resistance" was a term used to resist the Trump Administration and in a wider sense all that it stands for. But, even with Trump's defeat, the party that supported and enabled him did well in other respects in November. Including in state legislatures and expanding their caucus in the House of Representatives. And, over 74M voted for Trump.

So, we have a lot of work to do. Thanks for the post.

Ryan said...

It looks like there's a typo in the first paragraph. Alito and Thomas believe the Court DOESN'T have discretion to reject original-jurisdiction cases, right?

Michael C. Dorf said...

Henry Baker: I suggest you read the article on Hungary linked just above the line you find puzzling. In it you will find:

"Over the last 10 years, Orban and his one party government have changed the constitution, and electoral law. This month, a new law was proposed to make it harder for opposition parties to collaborate on an anti-Orban platform. Government media advertising has been used to reward outlets loyal to the government. Orban has packed the democratic institutions with his friends, and built up a sophisticated system of corruption, with allegations that his circle are offered favourable terms during the awarding of public tenders."

Or you can read this story from the NY Times in the last week:

It begins:

"The Hungarian Parliament passed a raft of sweeping measures on Tuesday that curtail the rights of gay citizens and make it more difficult for opposition parties to challenge Prime Minister Viktor Orban and his party in future elections.

The new laws also relax oversight of the spending of public funds, which critics say will allow the government to use state money to benefit loyalists.

The legislation includes a constitutional amendment that critics say lowers the legal threshold for the government to declare a state of emergency, while also removing meaningful oversight of its actions while such a decree is in place."

Henry Baker said...

Thank you for the articles, I will check them out.

The article linked in this essay’s text supported the assertion that Orban basically won in 2010 by running an essentially sore-loser campaign (referencing the 2006 election). Say what you will about that, but a politician successfully running a disingenuous campaign cannot possibly be the destruction of democracy, as that type of thing has been prevalent since the dawn of democracy in Ancient Athens.

I will check out these other articles, though. The quoted portions do not give much evidence that these reforms are not in line with the the opinions of a majority of Hungarians, in which case these reforms would not be the destruction of democracy, but the fulfillment of it.

I still am curious what exactly Professor Tarrow means by “the destruction of democracy” and would be very interested in that definition. Hitler destroyed German democracy when he gave himself absolute power. Cromwell destroyed English democracy when he dissolved parliament. Lenin destroyed Russian democracy when he seized power. Etc. Say whatever else you want about those gentlemen, but if they had followed the exact same policies that they actually followed, but had insisted upon holding (and had repeatedly won) free elections, than as evil as they were, they would not have been guilty of “destroying democracy,” no?

Thank you for your response

Michael A Livingston said...

Couple of comments

1. I took “Society and Politicos in France and Italy” with Professor Tarrow in 1976. We thought then that Italy would become more like us, not the other way round. Little did we know.

2. I wonder what can be learned from the 126 signers-on to the Texas case. I think it was a little bit of a freebie because it has so little chance of success. OTOH perhaps some of the signers—as in Italy—believe that any left-of center Government is per se illegitimate i.e., they don’t really care if votes were fraudulent, because those voting for the left are inherently evil or at least misguided. This would obviously be rather more concerning, although I would argue that there are many Democrats who feel that way about the Trump Voters, if they are not quite so over-the-top about it.

3. I wonder if moderation is necessarily the best course for the Democrats. My own view is that Liberal Democracy has failed to deliver the goods in Western nations (USA, UK, Continental Europe) and will continue to do so unless it is radically overhauled. This would include short-term changes in voting rules, districting, etc. but also long run structural changes, most importantly a move away from first-past-the post geographic voting to some kind of more balanced system (the Senate and Electoral College exaggerate the problem here, but they are not the underlying issue). I think there also need to be changes in the “small c constitution” that allocates power between social groups and largely determines the outcomes in the formal system, above. (A Supreme Court that didn’t all go to two Law Schools might be a start here.) What I see Biden doing is something like the “Return to Normalcy” of the early 1920s: a Restoration of a system that was already failing. He might do better if he was just a bit bolder.

Michael A Livingston said...

Politics, not Politicos, though we discussed both.