Desperate Measures for Desperate Times

by Neil H. Buchanan

The Democrats have spent quite a bit of the time since November 8 asking themselves what they did wrong, how they lost the presidency even after they had been given the gift of what seemed like the world's most beatable opponent.  More importantly, what should they do moving forward?

Much of the immediate post-election discussion centered around a baseless theory attacking "identity politics" as the cause of Clinton's loss.  Fortunately, that moment seems to have passed (although one must never underestimate the staying power of a bad idea), and the conversation has now turned to whether the Democrats are simply too timid.

This was captured best in a recent column by David Leonhardt titled "Democrats Had a Knife, and the G.O.P. Had a Gun," which The New York Times published shortly after running "Buck Up, Democrats, and Fight Like Republicans," by Dahlia Lithwick and David S. Cohen.  The common theme running through those columns is that Democrats simply need to be willing to take more aggressive stands than they have traditionally been willing to take.

To be clear, Democrats have been very good at organizing national campaigns, raising money, and so on.  They were able to retake the House and the Senate during George W. Bush's presidency, and they held the Senate longer than they might have simply because they were able to exploit Republicans' weaknesses.  (On the other hand, how difficult is it to win when your opponent runs an ad saying, "I am not a witch"?)

But the point that the columns linked above drive home is that Democrats are not willing to make innovative, risky arguments when the chips are down, preferring instead to believe that their good manners will be rewarded by voters.  Lithwick and Cohen point to the Republicans' scorched-earth strategy during the 2000 Florida recount and related court battles, and Leonhardt contrasts President Obama's decency in 2016 with the Republicans' actions in North Carolina after they lost the governorship there this year.

Professor Dorf has noted that the Lithwick/Cohen claim is a bit overdone, because the Republicans' ex ante chances of winning in the courts with novel (a better word would be absurd) legal theories was actually reasonably good under the unique institutional circumstances of that time.  That is an important (and accurate) point, but I am raising a different issue here, which is whether Democrats need to be bigger risk-takers when it comes to litigating in the courts of law as well as in the court of public opinion.

The short answer is that they must.  If ever there were desperate times calling for desperate measures, those times are upon us.  There is every reason to think that Republicans will become even more shameless when it comes to rigging elections, and the Democrats will be doomed to irrelevance if they cannot bring a real fight to the Republicans.

In some sense, this is all very obvious.  "Politics ain't beanbag" is an old cliche, and it is not as if Democrats have treated politics as an idealized system.  Even so, there is something very obviously self-defeating about the way that Democrats respond to Republicans' excesses, and it boils down to a matter of appearances.  Democrats, it seems, are worried that they will look like sore losers and that Republicans will call them pathetic.

For example, during the final stages of the 2016 campaign, Trump surrogates were going on the news shows to deliver his talking points.  Some of those surrogates were newcomers who were obviously in over their heads, stunned to find themselves in high places in a presidential election campaign.  Others, however, were old Washington hands who were willing to join what looked like a losing campaign.

I recall watching a clip of one of Trump's spokesmen being interviewed by a network political commentator.  (I think it was Chuck Todd on NBC, but those details hardly matter.)  The Trump guy was saying that online polls showed that Trump had won one of the debates, but the interviewer was not having any of it, pointing out that the surveys on which the Trump campaign was relying were unscientific.

The exchange was fascinating, because the Trump guy absolutely would not be budged, saying repeatedly with a straight face that up was down and wisdom is ignorance.  Finally, the interviewer's frustration boiled over, and he fairly pleaded, "Look, I know you.  I know that you know better than this.  You can't possibly believe what you're saying!"  This had no impact, and Trump's man robotically repeated his points, with no evidence of embarrassment.

In a moment of even greater clarity, there was a panel discussion at Harvard shortly after the election, with the political professionals from the Clinton and Trump campaigns getting into a nasty on-stage argument about their opponents' tactics.  Trump's campaign manager, Kellyanne Conway, turned to her counterpart on the Clinton campaign at one point and asked, "Do you think I ran a campaign where white supremacists had a platform? Are you going to look me in the face and tell me that?"

When I saw that, I flashed back to a time when I was sitting across a desk from a car salesman at an automobile dealership.  I had caught him in one of many blatant lies, and I thought that he would at least back off of that claim.  Instead, he looked at me with a combination of feigned hurt feelings and anger and said, "Are you calling me a liar?  Are you actually saying to my face that you think I'm a liar?"

It was a brilliant tactic, drawing its strength from the mismatch between a person with no shame and another person who cares about normal human decency.  Reeling from the accusation, I immediately backtracked and thought that maybe he is not really a liar, and I tried to think of any innocent explanations.  I am happy that I was raised to be the kind of person who hesitates to confront another person so aggressively.  Even so, trying not to be mean came at a cost, and I ended up not only buying the car from that liar but actually overpaying for it.

Looking for the most generous versions of other people's claims is, in fact, all but the prime directive for professors.  We reflexively say things like, "Well, to be fair, it is true that ... ," and "I can see where my argument does not apply in all cases, but still I think it is not too much of a stretch to say ..."  As avidly as we advance our arguments, our highest aspiration is to be able to say that we gave every alternative argument more than a fair hearing.

As scholars, that is absolutely what we should be doing.  When that attitude translates into political strategy, however, it can cause problems.  Earlier this year, I noted how the standard academic style (which carries over into many of the precincts of mainstream journalism) caused people who think of themselves as fair-minded to bend over backwards not to call Trump a liar.

When Trump claimed that the true unemployment rate was not 4.9 percent (as reported by the Bureau of Labor Statistics) but was actually somewhere between 28 and 42 percent, the best answer would have been to say, "No, it isn't."  Instead, journalists and economists were soon tying themselves in knots.  "Well, it's true that more than five percent of the population is not working, so if you redefine 'unemployed' to mean not currently holding a job, there are some numbers that get you to Trump's number."

Again, however, anyone not working for the Trump campaign should have simply said, "No, the unemployment rate is not one of those higher numbers.  He is wrong."  No reasonable person has ever said that "not working" means the same thing as unemployed, and playing with alternative definitions -- in an effort to say that maybe the person is not lying -- is an honorable instinct that unfortunately no longer has a place in modern American politics.

Similarly, when I first heard that Trump was claiming to have won by a "landslide" in the Electoral College, my professorial instinct was to say, "Well, I guess everyone can have their own definition of a vague word like landslide, but ... ."  The right answer was, "No, he did not win in a landslide."

Part of the problem for Democratic spokespeople is, I think, that they worry about going on the TV interview shows and not being able to stay on message with a straight face.  When Chuck Todd says, "You have to admit that your argument has weaknesses, don't you?" the default is to say, "Well, yes, you have a point, but ... ."

For example, there was some post-election discussion among Democrats about bringing a constitutional challenge to the winner-take-all approach to awarding electoral votes.  Why did they not do that?  As Lithwick and Cohen suggest, there is no doubt that the Republicans would have done that and more, if the roles had been reversed.

The short answer is surely that the top minds among Democrats rejected the argument out of hand, because it sounded ridiculous to them.  Sitting across the desk from Wolf Blitzer and saying that there was a plausible argument against the way the Electoral College has worked since 1789 could have been embarrassing.  Why look desperate?

Again, however, the Democrats are desperate at this point.  They understandably worry about losing credibility by making arguments that their opponents will mock, but they fret about this even as those opponents have shown their willingness time and time again to stand behind absurdity with straight faces.

This was one of the infuriating things about President Obama during the majority of his presidency.  He continually took an approach that suggested a defeatist mindset: "Well, to be fair, I can see why people might not understand why I might do X, so I'll back off."

Happily, Obama did finally learn the lesson that trying to avoid being criticized or even mocked is a fool's errand.  In an interview earlier this year, he said: "You start realizing at a certain point, well, folks aren’t even trying to be consistent. They’re not even trying to be fair-minded in their assessments or recommendations. In which case the best thing for me to do is to try to figure out what the right thing to do is and just do it, and worry later about how Washington is grading me."

Of course, what Obama was saying there was that he no longer trimmed his sails when it came to policies and arguments that he thought were quite strong.  That is a step forward -- an essential one -- but it is not quite what Lithwick and Cohen or Leonhardt are talking about.  The idea is that Democrats need to be willing to take very aggressive positions and not undermine themselves by saying, "Well, I know that this is an extreme position, but ... ."

There are plenty of examples of how this strategy works.  Democrats were positively freaked out when David Boies and Ted Olson brought their same-sex marriage case to the courts.  There was (quite reasonable) concern about backlash and so on.  That it turned out well is not proof that it could not have turned out poorly, but (to state the tautology bluntly) it is proof that it could turn out well.

Consider how successfully the Republicans have played this game over the years.  What became D.C. v. Heller was the longest of longshots, based on an utterly ahistorical re-reading of the Second Amendment (see Justice Stevens's devastating dissent) that required a complete repudiation of settled law.

Or how about the first challenge to the Affordable Care Act, NFIB v. Sebelius?  There, an argument that was utterly laughable when first proposed -- the "broccoli argument," based on a logically incoherent action/inaction distinction that was nowhere to be found in the law -- was adopted by five justices, four of whose earlier writings should have caused them to reject the commerce clause challenge out of hand.

The oft-forgotten second part of NFIB v. Sebelius is even more astounding.  There, seven justices actually agreed that the Medicaid expansion amounted to impermissible coercion of the states.  This was disastrous for the poor and middle class people in Republican-led states who were thus denied medical care, but it was a victory for people who were willing to make extreme legal claims and keep pushing them forward.

The people who pushed those theories, especially the professors who contributed intellectual firepower, took a beating on the talk shows and especially in the seminar rooms.  What they did not do was show any sign of shame or embarrassment.  Some of them surely believed every word of what they said, but Barack Obama also believed what he said even as he maintained a defensive crouch for most of his presidency.

Where are the opportunities for Democrats to take some risks and to face the possibility of being told that their legal theories are outside the mainstream?  One obvious example is the post-election insanity in North Carolina, where the state Republicans have stripped the governor of many of his powers, most importantly the power to undo the Republicans' voter suppression efforts.

I do not doubt that the current state of legal doctrine makes any challenge to the N.C. Republicans' actions an uphill climb.  But why not throw the kitchen sink at this one?  For example, the so-called Guarantee Clause in Article Four of the Constitution says that "The United States shall guarantee to every State in this Union a Republican Form of Government."

What does that mean?  No one really knows, but the basic idea has always been that the federal government must make sure that the "consent of the governed" is the basis for democratic legitimacy.  In order to win a case based on this clause, the Democrats would have to overcome the "political question" obstacle (courts refusing to decide cases that could be handled by the political branches), and then they would have to prove that "republican governments" do not change the rules after the election to favor the losing side.  The Democrats might lose.  In fact, I would bet against them.

More generally, however, Democrats need to appreciate how strong their big arguments are.  Republicans win by suppressing the votes of likely Democrats and redrawing legislative districts.  Democrats can honestly argue that they do not want to suppress the votes of likely Republicans (or anyone else) and that they are willing to win or lose in fairly drawn districts.

In the end, what Democrats need to say is that the political branches (at both federal and state levels) are not self-regulating.  It is understandable that the courts would avoid involving themselves in election-related decisions, but the admonishment to "take it to the people's representatives" is entirely empty when the people's will has been systematically subverted in the elections that determined those representatives.

There is nothing fun about losing, and there is nothing fun about being forced to make arguments that might be rejected.  Democrats, and progressives more generally, habitually restrain themselves to their own disadvantage.  That must change.  Soon.