The Winner's Curse in an Autocratic Power Grab (a Dorf on Law Classic)

by Neil H. Buchanan

It is a particularly unusual mid-August for those of us in Dorf on Law World, one consequence of which is that my sincere intention to write a new column today fell by the wayside.  I therefore offer a Dorf on Law Classic from October 15, 2020.  Given the recent Republican primary results, the column seems especially pertinent to our near future.

The Winner's Curse in an Autocratic Power Grab

by Neil H. Buchanan

What would it be like to be on the winning side of a Constitution-shattering political putsch?  Winning is great, right?  Certainly, one would think that -- at least for those who have no principles other than grabbing political power by any means necessary -- life would be pretty good on the other side of a coup d'etat.  You enjoy the spoils, and the other guys eat dirt.

In my new Verdict column today, I start to address that question by looking at the highest-level Republican enablers of Donald Trump.  In fact, I was looking at only a subset of that group, limiting my analysis to those who imagine that they will be president someday.  That means that, for the purposes of that column, I was not looking at Mitch McConnell, Bill Barr, or any of the others who are abetting Trump's push toward a dictatorship.

There are, at all times, governors and U.S. Senators (and occasional House members) who picture themselves as a future president.  Some, like Rick Santorum -- who was defeated in one of the largest ever blowouts of an incumbent U.S. Senator running for reelection -- were once sorta-kinda viable, but then they become walking punchlines by hanging on for far too long.  Before they get to that pitiable status (and perhaps even after), however, all of these people spend their days believing it when people around them say that they will be in the Oval Office someday.

As I will explain in a moment, those people are especially misguided in joining the Trump parade.  But my main focus here is to ask what is in it for everyone else in the Republican Party -- not just the high-level people who do not have presidential aspirations but the middle-level politicians who are eagerly looking forward to a post-constitutional U.S. political system.  My assertion here is that they might find themselves very disappointed by life in a one-party state.

It will help, I think, to summarize the path that brought me to this question.  My September 24 Verdict column was primarily devoted to debunking the now-bipartisan consensus that Republicans are "tolerating" Trump's excesses because they like what he delivers: conservative judges and radically regressive economic policies.  The current Supreme Court fiasco is understandably causing everyone to focus on the judiciary, so I labeled this the "slime for judges theory," in which Republicans supposedly wince but stay in line during Trump's never-ending parade of depravities because they get something good in return: reactionary judges and stroke-the-rich economic policies.

This is nonsense, I explained, because Republicans could have gotten the quo without paying any of the quid.  Trump's departure would have meant Mike Pence's ascension, so Republicans could have gotten one of their own -- who, whatever else one can say about him, would not be Trumpian -- who would have given them whatever their hearts desire.  Once one thinks about it, this is so obvious that it is amazing that the entire political class seems to still believe the slime for judges theory.

And recall that slime-for-judges is supposed to explain something.  How, pundits ask, can we explain Republicans sticking with such an awful person?  Answer: They have to, in order to get what they want.  But because that explanation is wrong, we need an alternative explanation.  Mine is that Republicans love what they get by sticking with Trump even more than what they would get from Pence or any other standard-issue movement conservative.  And what is that extra Trumpian ingredient?  Open bigotry.  That is the one obvious way in which Trump differs from the would-be leaders of America's second-largest political party.  They are all, of course, only too happy to support systemic racism and enact policies that harm minorities and women, but they have never had the nerve to do it so openly and gleefully as Trump.

But I did offer a second explanation, one that can certainly coexist with the first.  Under this view, Republican leaders feel forced by Trump's grip on their base to go along with him, and they are willing to do so in order to (unlike, say, former Senator Jeff Flake or former governor and House member Mark "hiking the Appalachian Trail" Sanford) preserve their political viability.  And they are certainly looking at a stark choice: The Democrats will almost surely never accept converts who are conservative enough to have been happy with the pre-2017 Republican Party, and Republicans will not vote for anyone who resists Trump.  The only choice is between having a political future or not.

Today's Verdict column spends some time (perhaps more than necessary) strengthening the case that overt racism is not only Trump's brand but that it is a positive motivator for his base, rather than a hurdle that they must overcome.  But then I go back to the second explanation from my September 24 column: Racist or not, politically ambitious (and already quite successful) Republicans in the current situation are in it to seize raw political power.

As noted above, I focus there only on the people who imagine that they are keeping their hopes alive of one day making that completely deserved trip down Pennsylvania Avenue to take the oath of office on January 20 after a quadrennial year -- maybe even January 20, 2025!  Senators Ted Cruz, Josh Hawley, Tom Cotton, Marco Rubio, and maybe even the delusional Lindsey Graham can taste it.  Nikki Haley, a former governor and ambassador, has similarly shamed herself by sticking with Trump to position herself for a White House run.

But what could these people possibly be thinking?  As I wrote today on Verdict, they apparently imagine that Trump will happily announce (or at least signal) on January 21, 2021 that he is satisfied to serve a second term and nothing more, at which point the usual permanent campaign begins anew, with everyone rushing to diners in New Hampshire and Iowa while making side trips to the Upper East Side of Manhattan to collect huge checks, kiss a Koch ring, and so on.
Why do they think that this will happen?  Because it has always happened that way, and that is how they learned to play the game.  Even as they bust every norm and kick down every door at Trump's demand, they somehow imagine that politics will continue as before -- except that they will not have to worry about the general election, in a world where Democrats' votes have been permanently suppressed.  What is not to like?

They do not apparently take seriously the possibility that Trump will decide to stay in office for a third or fourth or fifth term.  Trump says that he feels twenty years younger post-COVID, after all.  (Would that require a constitutional amendment?  Yes, but why would these people who cower before Trump think that they would survive politically after opposing such an amendment?)  And even if Trump cannot work out a way to extend his presidency, why does Ted Cruz or any other traditional Republican think that Trump will favor them as a successor, when Don Jr. and especially Ivanka are right there?

Just as many readers and colleagues once said that my imagination was running wild as I predicted that Trump would do everything to "win" in 2020 and refuse to leave office, I understand that reasonable people might be more than a bit skeptical about what I am suggesting here.  And even though I have unfortunately so far been proved right in my predictions about this year, that does not mean that my prediction of a Trumpian political dynasty is also foreordained.  I honestly think it is, but I can certainly see ways in which things might not go that far.
Here, however, I am asking what the other politicians on the winning side, the people who will never be president (and do not expect to be), might get out of a continuation of Trump's disastrous presidency.  As I noted above, winning is better than losing, and having power is better than having none (as the many retiring Republican House members can tell you).  Not just Cruz (who, despite his insufferable ego, might one day adjust to the idea of never being president) but backbenchers like, say, Senators Deb Fischer of Nebraska or John Boozman of Arkansas, would surely delight in being part of a world where their side gets its way about everything.

But even if it is pleasant to see your side win a lot, that does not mean that there are not costs.  For one thing, at least a few of these people might be confused enough to think that slime-for-judges is real, and they actually care about supposedly conservative principles like limited executive power, states' rights, or balanced budgets.  Endless Trumpism puts all of that in the dumper.  Maybe being able to ban all abortions and pass must-carry laws nationwide is enough, but how long does it take to do that (and to gut the safety net while cutting taxes on businesses and rich people to zero)?  A big part of what conservatives thought they cared about is not in a Trumpian future.

More to the point, what is there to do in a one-party country, even if you are a member of that one party?  Presumably, the Hawleys and Cottons would spend their time jostling for position in the Politburo to stand as close to Trump as possible during photo ops, but even they will not have any real power, unless and until there is a post-Trumpian power struggle.  The other people in "high office," meanwhile, would become nothing but dead weight, with no external opposition to vanquish and no power to shape anything that they were told to rubber-stamp.

A classic "Twilight Zone" episode ("A Nice Place to Visit") centers on a two-bit hustler who dies and finds himself in his version of heaven, a casino in which he always wins every bet that is filled with beautiful women who never say no.  He gets bored soon enough, and he finally ends up so unhappy that he asks to be sent instead to hell.  The big twist?  He is in hell already!  As always, Rod Serling's iconic voiceover ends the episode: "A scared, angry little man who never got a break. Now he has everything he's ever wanted – and he's going to have to live with it for eternity – in The Twilight Zone."
I am not imagining that most (or even many) Republican politicians are deep enough to understand the irony of that episode.  And even those who might understand it have shown again and again that they will gladly participate in rigged games.  Even being a powerless Republican senator will surely have its perks.  Still, it is not only the political opposition that loses when a dictator seizes power.  Being a politician who is part of an all-powerful government is not the same as having any power.

I should add two further points here.  First, I emphasize that I do not imagine that such considerations would stop any Republicans from helping Trump stay in power at all costs.  Among other things, many of them (like Trump himself) are probably so shallow that they would never get bored even when every "win" is a cheat.  (Trump brags about cheating at golf, for heaven's sake.)  Second, I am not talking about Republican politicians "suffering" in any real sense.  Awakening to the realization that one is in a gilded cage is obviously nothing compared to the actual suffering that Republicans' policies would inflict on the powerless people who did not support Trump.

My point, then, is that the second half of my alternative explanation for Republican support for Trump (the second half of "Bigotry and Raw Power" in the title of my September 24 column) is actually a lot less compelling than it might seem, even on its own terms.  If a person were truly not a bigot but had instead told himself, "I'll go with Trump because it keeps me in power" is unlikely to get what he thinks he is signing up for.  Not that that will stop any of them.