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Tuesday, January 05, 2021

Partisan messaging

Keith Whittington at Lawfare breaks down the legal, constitutional, social, and political problems with what congressional Republicans plan to do tomorrow.

He responds to the argument that this is harmless political posturing, a "messaging" act that causes no harm because it cannot succeed (akin to voting for a bill that will not pass or that is likely to be declared invalid). But:

[E]ven as a political messaging exercise, what exactly is the message? Are these congressional Republicans telling voters that if they elect enough like-minded politicians, then a majority coalition would be willing and able to overturn the result of a presidential election? Is the message that every future presidential election is up for grabs when Congress meets to “count” the votes and that election results are simply contingent on who holds the majority in Congress? This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way.

Whittington is right that this is the message Republicans are sending to voters. And that tracks with questions over the divide within the Republican party and which direction that divide might go. Perhaps the message is that voters must primary the pragmatic faction and elect more autocrats, at the federal and state levels, so this will work in the future. Perhaps the message is to GOP autocrats at the state level to alter their election laws and processes to allow this to work in the future, up to and including returning selection of electors to the legislatures (the past two months show that many Republican voters would not oppose this in their Red or gerrymandered states).  Or perhaps the message is to the pragmatic wing of the GOP in Congress--hang with us, even if opposing us now, because eventually there will be an election that comes down to one state and a few hundred votes (e.g., Florida in 2000) and this will work.

Regardless of the message, Whittington's ultimate point stands: "This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way."

Posted by Howard Wasserman on January 5, 2021 at 06:17 PM in Howard Wasserman, Law and Politics | Permalink


Yes, the messaging is bad, but is there a more fundamental problem? The 12th amendment simply says "...the votes shall then be counted." Does that confer power on Congress to not count electoral votes if they believe the votes are problematic? Can it possibly be that Congress has been given the power to disregard electoral college votes for any reason or no reason, with a simple majority vote in both Houses. That part of the Electoral Count Act seems unconstitutional to me.

Posted by: MGould | Jan 6, 2021 7:07:01 PM

Unfortunately, Whittington is "spot on". The "message" is about power and retaining power for a white America. As was noted in a prior blog discussing "disenfranchisement", it is only disenfranchisement if my candidate loses the election.
The Russians have hacked our information infrastructure, SARS-Corona virus continues to ravage significant portions of the nation and the elected members of Congress and the Senate are too busy making points with that portion of our citizens that occupy an alternative universe.
I swear, relocating to Nova Scotia or New Brunswick is starting to look like an attractive option.

Posted by: Paul Sonnenfeld | Jan 5, 2021 11:47:27 PM

Howard, I say this as your internet friend.

Go out and get some sunshine. Take a break from politics. Go play frisbee with you dog, if you have one.


Posted by: thegreatdisappointment | Jan 5, 2021 10:04:22 PM

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