At this Point, Talking About Election Strategy is Adorbs
by Neil H. Buchanan
This has been a tantalizing week in American politics. Horrible things have been happening, but just when it appears that all is lost, we are teased into thinking that some hope remains. I am not falling for it (again). Please allow me to explain, after which I will explore why all of the noise around US politics is at this point either cynical nonsense or (at best) self-deluded force of habit.
Because this week's news has revolved around televised congressional hearings, it makes sense to think about other high-profile hearings that offered ultimately empty promises of justice. There was, for example, a point during his Supreme Court nomination hearings when it looked as if Brett Kavanaugh's jig was up, after the Judiciary Committee and the world had heard compelling testimony that had moved even many Republicans to think that his nomination was no longer viable.
(As an aside, no matter what I might think of Kavanaugh, it goes without saying that "my side" in no way defends anyone who would commit violence against him. We do not explain away violence by, say, calling insurrectionists tourists.)
By the way, Kavanaugh's defeat/withdrawal would simply have led to Amy Coney Barrett being nominated and confirmed in his place; and if in that alternative timeline Ruth Bader Ginsburg had still died prior to the 2020 election, someone else on the Federalist Society's short list would have been installed on the court. But none of that was in our future in our actual time line, because everything snapped back into place regarding Kavanaugh's nomination after only a short lunch break. There was then some semi-drama about whether some Republican senators might vote no, but that was never a serious possibility. Susan Collins gonna Collins.
The same thing happened decades earlier, when the Senate's hearings regarding George H.W. Bush's unconscionable nomination of Clarence Thomas to the Supreme Court also briefly tempted many to believe that it would end in a no vote. Instead, Senator John Danforth put his reputation on the line (apparently, his nickname was "Saint John." Ick!) and assured the world that Thomas deserved a seat on the Court. And of course, "centrist" Democrats quickly fell into line. Who cared that Thomas had obviously lied about Roe and had shamelessly played the outrage card against his credible accuser?
There have been other moments in which we were teased with the idea that ruthless people might be brought to justice or would at least reach a line that they would not cross. Bush v. Gore is an obvious example, as was the lead-up to the 2003 Bush II invasion of Iraq, the latter of which saw even people like the editors of Business Week (hardly an anti-Republican group) publishing anguished rebuttals to Dick Cheney's case for war. The war happened anyway. We were not greeted as liberators.
This week, I have not allowed myself to be drawn into watching the hearings live, but everything that I am reading in the major print outlets and seeing on cable talk shows indicates that things are going very badly for the Trump side. People are watching in large numbers, contrary to predictions both by Trump's enablers and many cynical non-Trumpists. The content is spectacular, as in truly a spectacle of the highest and best order, with compelling testimony demonstrating that Trump knew what he was doing, that the insurrection was planned, and on and on.
It certainly seems like something good will come of this, or at least it should. But what, exactly, is the plan going forward? Even if the Attorney General surprises everyone by indicting everyone involved, and even if that does not lead to MAGA riots at courthouses and jails, what happens next? The only thing Trumpists need to do is run out the clock until January 20, 2025. And even if some of them are convicted and imprisoned between now and then, they will be pardoned on that day.
But surely, one might think/hope, the January 6th committee's work is changing the landscape. Exposing the Pence-centered coup strategy will give Congress, based on star witness and former right-wing rock star judge Michael Luttig's testimony, renewed urgency to fix the Electoral Count Act (ECA). That is all well and good, I suppose, but of course Senate Republicans will filibuster anything along those lines, and Joe Manchin and Kyrsten Sinema will again tell us that the filibuster is more important than the Constitution and the rule of law.
More to the point, even if the ECA were updated and rationalized, so what? We are not going to get anywhere near the point where the Trump/Eastman January 6 gambit will be necessary again. As I demonstrated in a column last month, the arithmetic of the Electoral College, combined with the relevant provisions of the Constitution that give state governments power to ignore their voters' presidential votes (or not even to hold such votes, although maintaining the pretense of democracy will demand that they go through the motions), means that any Republican will be declared the winner over any Democrat in the 2024 presidential election. It will not be necessary to mess with the January 6 ceremony -- and it will certainly be unnecessary to have another violent mob descend on DC -- to guarantee that outcome.
All of this is baked in. Rucho guaranteed that minority rule can continue in perpetuity, at both the federal and state level, through gerrymandering. Years before, Shelby County gave the green light to suppress non-Republican votes, and the Republican-gerrymandered states have taken up that cause with gusto, including last year's orgy of disenfranchisement in Georgia, Texas, Florida, and elsewhere. (And of course, the "woke" corporations that promised not to make campaign donations to Republicans in light of these assaults on democracy have mostly gone back to business as usual.) Manchin, Sinema, and the Republicans killed federal legislation in 2021 to restore voting rights.
This week, there has been a minor story out of New Mexico involving Big Lie-driven county election officials refusing to certify the outcomes of Republican primaries because ... why? Because they refuse to believe that elections can be free and fair. (In this case, it is apparently something about voting machines; but it ultimately makes no difference which among the range of deranged conspiracy theory drives their decisions.) Yes, the state Supreme Court has ordered them to do their jobs, but even if they do so now, what happens when that stunt is replicated in hundreds of places around the country in general elections in 2022 and 2024? And this is to say nothing of the "army" of voter intimidation squads that the Republican National Committee is assembling, or the "voting police" that Florida's legislature and governor recently created.
In a Dorf on Law column four weeks ago, I pointed out that the electoral-industrial complex is built around the idea that even well-meaning people have to follow the news cycle, which means that they chase shiny objects so that they can place their op-eds and book appearances on cable talk shows. The John Lewis Voting Rights Restoration Act died months ago, so no one talks about it. Georgia's voter suppression law was passed in early 2021, which resulted in the Baseball All-Star Game being moved out of Atlanta, but that is even older news. Now, we will talk about the January 6th hearings, until we stop talking about them.
Moreover, even the best of the well known pundits cannot stop themselves from acting as if the entire system is not permanently corrupted. E.J. Dionne, Jr., one of the top people writing in any of the major outlets, offered an earnest column in The Washington Post a few days ago with this headline: "Inflation could put election deniers in charge of our democracy."
With all due respect, that argument is about as relevant to what will happen to democracy in the United States as is the ongoing crisis in Ethiopia. (Did you know that there was a war in Ethiopia -- and that it has not ended?) The world that people like Dionne (and that includes me) have long occupied involves sincere discussions about how voters will not vote to protect their own continued right to vote. We find it astonishing that people will vote for Republicans out of anger at the Democrats regarding lower-order concerns, even when the Democrats could do something about a problem (for example, student-loan debt), much less when the problem is something like inflation, which is beyond anyone's control.
When I saw that headline on Dionne's most recent piece, all I could think was that such thinking is, shall we say, quaint. He is, after all, insisting on talking about the world as if issues still matter at all. Because he is intelligent and informed, he spends most of the column explaining his opening line that "[e]lections are decided by the issues on voters’ minds, not the issues many of us might wish were on voters’ minds"; yet he ends with this:
Democrats, especially Biden, [need] to try to cut their losses on inflation by arguing their proposals to reduce costs are more credible than anything Republicans are offering. It won’t be an easy sell, but Biden took a decent shot at this with a rousing speech to the AFL-CIO on Tuesday.
But there is no substitute for trying — however hard it will be — to make the preservation of democracy a much higher priority for voters. Their ballots won’t cut prices at the pump or what they pay for groceries. But they will determine the future of our experiment in self-government.
But none of that matters unless there is reason to believe that the upcoming elections could possibly be free and fair. Talking about election strategy necessarily assumes that different strategies can change outcomes, which is simply no longer true. Our system has already been turned into a permanent mechanism for minority rule, and the next two election cycles will see that long-sought Republican goal brought to fruition. Nothing that Biden or the Democrats might do can change that.
As I have written multiple times, I understand why someone like Dionne -- and certainly Democratic politicians -- must argue as if the die is not yet cast. Even if there is the tiniest chance of a better outcome, the responsible thing for them to do is to encourage people to do their civic duties and save the nation. Even so, their arguments are becoming touchingly naive, if not downright delusional. Hey everybody, here's a better election strategy for the Democrats! Adorable.