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Sunday, January 03, 2021

Political parties and notes on a broken process

A jumble of thoughts on the role of political parties in presidential selection and what happens next.

The Framers considered but rejected legislative selection of the executive, fearing that a president chosen by Congress would not be sufficiently independent of the body to which he owed his office. That is why the states were empowered to decide the methods of choosing electors and why the electors would act on their own. The House contingent election was a necessary fail-safe. At the same time, some believed that fail-safe would become the norm, at least once George Washington left the scene. They doubted one figure could attain sufficient national recognition and support to achieve an EC majority, especially in a race among multiple candidates representing different regions and interests. These figures expected the EC to become a screening mechanism to produce two or three candidates, from whom the House would select the President.

The unforeseen (or unaddressed) development of political parties and settlement into a two-party system allowed the Electoral College (as tweaked by the Twelfth Amendment) to function as a true selection mechanism, making the contingent election an unnecessary vestige. The one post-Washington election that operated as the EC was designed on paper was 1824--and it produced the contingent election that some Framers expected or feared. There were no competing political parties and multiple candidates represented different regions and interests within that party, none of whom had the national stature to gain a majority. Otherwise, the competition between two major national parties ensured sufficient support nationwide support for one candidate, absent a breakdown in state processes (as happened in 1876 but has not happened since, including this year, conspiratorial fantasies aside). The congressional role became ministerial and ceremonial--count the votes and confirm the winner of state-controlled processes.

The 140+ House Republicans and dozen Senate Republicans planning on making futile-but-dangerous mischief on Wednesday have clothed themselves in a vision in which Congress plays a substantive role in checking the limits of the EC and choosing the President. Ted Cruz has pointed to 1876 and the congressional commission; historical ignorance aside, Cruz argues that Congress can and should exercise meaningful power in looking under the hood of state and EC processes--the House as the ultimate arbiter of the election. Never mind that this vision has never controlled in 240 years of elections. On the other hand, the two-party system means that a congressionally selected President would not be dependent on Congress as the Frames feared when they rejected legislative selection. Party identification unifies the branches, so congressional Republicans support rather than attempt to control a Republican executive whom they chose. Another example of the Levinson-Pildes separation-of-parties-not-powers thesis.

The maneuvering will not give Trump another term in office nor stop Biden's inauguration on January 20th.* It further undermines Biden's presidency. And it lends further cover to the inevitable refusal of all Senate Republicans--not only these twelve, but the silent Rubios and McConnells--to cooperate in any way with the Biden Administration.

[*] The insistence by Peter Navarro on Fox News that Congress could move the inauguration is laughable. But it reflects the moving goalposts. Several people insisted that there was no reason litigation had to end by December 14, since that date did not appear in the Constitution; the implicit argument is that statutory deadlines are meaningless. Apparently, so are constitutional deadlines. Although Navarro may be correct that Congress could move the Inauguration as an event. But that will not keep Trump in office past noon on the 20th.

So what happens after the play-acting fails? Former Republican political consultant Steve Schmidt argues that January 6 will mark the beginning of the end of the modern Republican Party, as the 1854 Kansas-Nebraska Act marked the end of the Whig Party. Both brought to the fore fundamental divides that drove the party apart. As he puts it, the GOP's "Pro Democracy faction and Autocratic factions can no more exist together then could the Whig Party hold together [t]he abolitionist with the Slave master."

I want Schmidt to be correct, but I do not believe he is. Abolitionists and supporters of slavery could not exist within the Whig Party because that fundamental philosophical divide made it impossible to agree on policies or candidates and to do the things political parties are designed to do. The anti-slavery Whigs found a home in the new Republican Party.

But the GOP's factions can co-exist when the smoke clears because the divide is not so philosophical. They will unite around knee-capping Biden (again, has any President had zero judges confirmed) and retaking the House/retaining the Senate in 2022 around a platform of Biden's failure to unite the country as he promised to do. Schmidt imagines a '22 primary bloodletting (including an Ivanka Trump-Marco Rubio primary in my home state of Florida, for which I will buy popcorn and a ringside seat). But, again, GOP party identification unites the factions against the common Democratic enemy once those primaries end. GOP voters will vote for whichever candidate carries the Republican label, the  party's structural advantages means there will continue to be more Rs than Ds in both houses, and the unifying goal will be opposition to the Democrats.

And unlike 1854, there is no place for these pro-Democratic Republicans to go. They are not going to become Democrats. And there is no room in the system for a third party.

Moreover, Mitt Romney and a few others aside, I think Schmidt misidentifies the factions within the party, at least within Congress. There is not a pro-Democracy faction and an Autocratic faction. Instead, there is one windmill-tilting autocratic faction and one pragmatic faction that will not waste time on futile efforts but would be "fine with this effort actually succeeding" and likely would not "refrain[] from supporting it if they thought it could succeed." McConnell is not using or threatening to use any of the tools at his disposal to pull these Cruz, Hawley, et.al in line. Perhaps he knows it cannot work. More likely, he knows that he and the rest of the party benefit from these failed efforts. It is enough to shut up and reap the benefits.

I believe Mike Sacks has it right: "They’re playacting an attempt to overthrow democracy because they think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know." Sack was talking about Gohmert, Cruz, Hawley, et al. But it is true of every member of the party's congressional caucus.

Posted by Howard Wasserman on January 3, 2021 at 10:35 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

@ the unnamed

Scale does not matter for sedition. Waging war against the United States is treasonous, regardless of if I do it with five people or five hundred thousand.

Giving material aid to an enemy of the United States is treasonous, regardless of if there are two of us doing it or two hundred thousand.

Posted by: thegreatdisappointment | Jan 4, 2021 12:30:35 PM

@thegreatdisappointment - Do you really not understand the concept of scale or context, or are you being intentionally disingenuous to advance your BS bothsides narrative? I was alive and paying attention for all of the elections you claim as precedent for the idea that challenging the electoral college vote was ok, and here are a few details you're leaving out.

1) the "Democrats" or even "Congressional Democrats" did not challenge any of those elections. Isolated legislators did, and their objections went precisely nowhere because the party caucus wanted nothing to do with them. Contrast with 2020-21, when the Republican party and Congressional leadership tried to shut down challenges and are being ignored by large numbers of their individual Members. This is akin to using "a couple of people broke some windows back in 2000" as the justification for staging a violent riot. Didn't we hear all about how rioting is bad this summer? Is it ok if there's precedent? How about if that precedent is completely different? Exactly. That's your argument.

2) The Democrats who objected during earlier elections were not personally responsible for making up out of whole cloth the very "crimes" they were objecting to--largely because Democrats still believe in reality. You gloss over quite quickly the fact that the "irregularities" that "need" to be "investigated" do not actually exist. 60 court decisions and counting attest to the utter lack of any valid evidence. The fact that Republican voters are concerned about "irregularities" completely made up by Republican politicians and celebrities is a rather dramatic and obvious basis for distinguishing this effort from any prior precedent. Mens rea matters when it comes to crimes. Sedition is a crime.

3) Leading up to and during previous Congressional counts and objections, those responsible for objecting remained quite clear and open about the fact that they would not succeed but were only trying to bring awareness to the issues with which they were concerned. Indeed, in 2005, the year of the largest Democratic push to object to electors, a successful objection would not have changed the outcome--Obama would win either way. Even the most seemingly "reasonable" of the objectors who have spoken out this time around want to extort some kind of "investigation," and many continue to insist that they will succeed in re-anointing Trump. Of course, they are full of it and know it, but they continue to lead on their base with unfounded claims of future success. Why? Well, one assumes for the benefits that will accrue from "leading" a large group of ill-informed voters. There is a basic distinction between (mis-)using Constitutional procedures in a transparent attempt to shed light on an issue and doing so in an opaque effort to short-circuit democracy or manipulate the gullible and uninformed.

4) Scale matters. Context matters. It is objectively inaccurate to compare a handful of Democratic objections--or even the 32 Democrats (6% of all Members of Congress) in 2005 who voted against Ohio's certified electors--to the 112 *and counting* Republicans (21% of all Members) who have indicated they plan to join in this circus. It is objectively inaccurate (indeed, asinine) to maintain that the halcyon days of 2005 or even 2017 were comparable to the current environment--with Trump throwing a two month tantrum across all media venues, with 60 court cases tossed out so far, with new conspiracy theories showing up every day, with 40% of the electorate in a state of feverish hallucination about non-existent and disproven claims made by self-serving politicians, with protests and plague sharing the streets of the nation for the past 9 months+, with a President who said ahead of time that he would not concede and who has not wavered from that approach AND who has been caught on tape attempting to solicit electoral fraud in an utterly implausible parallel to his own impeachment scandal (you know I could go on...). To compare today to 2000 is less bluntly ridiculous, but the simple fact that 2000 was a circus doesn't make it factually analogous to the current one. It's like comparing Cirque du Soleil to an early century Barnum and Bailey spectacle. Yeah, they're both circuses alright, but only one of them carries the distinctive smell of feces.

I've had it with apologists like you who want to pretend that the crossing of the Rubicon was justified by the fact that lots of other people had crossed before. Your boy is marching an army on our democracy, dude. Stop making excuses.

Posted by: The unnamed | Jan 4, 2021 12:16:46 PM

@ a non,

The Clinton example doesn't work because congress didn't challenge the EC votes.

What we have is you excusing the two times that Dems challenged the EC votes. Also, Bush didn't stop the recount in 2000. SCOTUS did.

Sorry, but you have an election in which the four states that decided the election did so by less than a .1% margin.

All we have to decide is two questions: 1) Does Congress have the authority to perform this action? Dems have showed on two separate occasions that they believe Congress does have this authority; 2) Is it seditious for Congress to exercise this authority? Again, on two occasions Dems never said anything about this path being seditious.

Posted by: thegreatdisappointment | Jan 3, 2021 5:52:37 PM

"Your post is an excellent example of everything the side you identify did was justified and everything the other side does is racist, seditious, and/or treasonous. Again, it doesn't matter 'who did it first'. What matters is everyone's done it."

Well, you clearly did not read my post. There are examples in there from *both* sides that I think are arguably justifiable. (Although I think I was pretty clear in noting that I do not support such undermining, full stop.)

One of the many problems here with your argument is that "it" is not equivalent across these examples. The "it" here is materially different in justification and in degree from the "it" in 1992, 2000, or 2016. (It's materially different from 2008 and 2012 in degree, but maybe not in justification.)

Posted by: a non | Jan 3, 2021 4:10:47 PM

@ a non,

Your post is an excellent example of everything the side you identify did was justified and everything the other side does is racist, seditious, and/or treasonous. Again, it doesn't matter 'who did it first'. What matters is everyone's done it.

And the Dems *did* try. The EC votes were challenged. Again, the fact that the Dems weren't able to gather support doesn't change the fact that they tried to do it, and nobody called that person seditious or treasonous. The only thing that's happening now is the Reps have the support to carry the action a step further.

And it's still 'just rhetoric'. As Howard states, this isn't going to take the election away from Biden. It's theatre--just like when the Dems did it. We've just got more Reps doing it and making it a more interesting show.

So, what we have here is you had two people call someone a Bozo and the Reps have 140. Why is it seditious for 140 people to call someone a Bozo, but it wasn't seditious when two people on the other side called someone a Bozo?

Posted by: thegreatdisappointment | Jan 3, 2021 3:52:09 PM

@thegreatdisappointment -

There were numerous attacks on Clinton's legitimacy after he won in 1992 with only ~40% of the vote (b/c of the three-party race).

It's probably worth pointing out that it's not entirely unfair to question what sort of mandate a president has when they are only elected with ~40% of the vote (see Bill Clinton 1992), when they LOSE the popular vote and only win in the electoral college by ~500 individual votes -- and only then after a halted recount (as Bush did in 2000), and when they LOSE the popular vote, winning the electoral college only narrowly in an election with significant foreign influence (as Trump did in 2016).

It IS unfair to question what sort of mandate a president has based on racist and unfounded claims regarding whether the president was born in Kenya (Obama in 2008 and 2012), and based on entirely unfounded and repeatedly rejected/discredited claims of voter fraud (Biden in 2020). These things are very much not the same.

Also, questioning the mandate of a president is very different from actively seeking to seat his defeated opponent. The difference here isn't that Democrats were unsuccessful in previous attempts to overthrow the elected government -- it's that they genuinely did not try. A better analogy than the one you describe is that this is like using someone angrily yelling "Hey, you better watch it, Bozo" a year ago as justification for seriously attempting to murder that person today. Threats are bad, yes, and we should condemn the person who yelled a year ago. But let's not equate angry empty rhetoric with a concerted serious attempt at seating the electoral loser.

Posted by: a non | Jan 3, 2021 3:34:40 PM

Howard, we've come closer to having the election thrown into the House than most people realize. The 1960 election would have done so if Nixon had carried Illinois (lost by 8000) and Missouri (lost by 12000), since Mississippi and half of Alabama's electors went to states' rights electors. The 1968 election was widely considered to be a candidate for such an election as George Wallace was leading in every southern state except Virginia in the Labor Day polls (he carried five). During that election, southern Democratic congressmen who were the large majority from that region had to answer to their constituents just how they would vote if the election went into the House. Most from the deep South promised to vote the way their district did and and not for the Democratic candidate.

Posted by: PaulB | Jan 3, 2021 2:52:07 PM

@ a non

I don't necessarily see where. In 2000, you get the the first instance of it being acceptable to simply not accept a president as legitimate. The feeling gets returned back and forth, growing evermore. People just didn't have the wisdom to understand that allowing groups to say a president is illegitimate leads to the birther movement, which leads to John Lewis saying Trump was illegitimate after the 2016 election, which to four yeas of treating Trump like an illegitimate president who won by foreign influence, which leads to where we are today.

It doesn't matter 'who did it first'. It matters that everyone's done it and everyone has escalated it as their turn came around. So, I don't really buy Dems looking around and being like, "What happened?"

Also, it's very weird to say, "It's ok when we had people challenge the election because it was just rhetoric, but when the other side does it it's seditious and dangerous because they're better organized."

That's like if you circulated a petition and only got two signatures, but I circulated a petition and got 140 signatures and you tried to say what I did was wrong (even though we did the exact same thing) simply because I was able to get more signatures.

Either challenging the election results in congress is wrong--and is always wrong--regardless of if it's one person or a hundred people, or it's a legitimate congressional action.

Posted by: thegreatdisappointment | Jan 3, 2021 2:42:10 PM

"actually, it started way back in 2000"

I think this started long before 2000, but really, let's try to avoid these sorts of 'who did it first' arguments. Paraphrasing what I wrote in another post: this is very bad regardless (boo to anyone who questions a president's legitimacy), and also there's an enormous difference between inflammatory political rhetoric and the sort of very tangible action we're seeing today. It's akin to excusing murdering a person because the person you are murdering (or are trying to murder) yelled "you better watch out, bozo!" last year.

I really hope that this isn't the end of the US presidency, but if you think it is, where's the dismay or condemnation?...because that's really bad.

Posted by: a non | Jan 3, 2021 12:42:48 PM

@ a non

but foreseeable. and if we take Machiavelli's advice, once an institution becomes corrupted it can't be saved. so this is likely the end of the US presidency as anything more than a party leadership position that isn't recognized by the opposing party (actually, it started way back in 2000 with 'not my president').

what will be interesting is if we end up with two 'presidents' with Trump exerting control outside of the system over those areas which rejected Biden.

Posted by: thegreatdisappointment | Jan 3, 2021 12:14:39 PM

Here in Scotus Blog, by Amy Howe, titled:

"Pennsylvania Republicans return to Supreme Court to challenge extended deadline for mail-in ballots"

Here:

https://www.scotusblog.com/2020/10/pennsylvania-republicans-return-to-supreme-court-to-challenge-extended-deadline-for-mail-in-ballots/

Posted by: El roam | Jan 3, 2021 12:10:13 PM

@thegreatdisappointment - and that's bad.

Posted by: a non | Jan 3, 2021 12:06:15 PM

Interesting post. Derek T. Muller ( Excess of Democracy) claims in his recent post, that such idea brought by Ted Cruz and others, is futile, for other reasons:

First, it must be legislated by Congress (a congressional statute must be made).In accordance, timeline, makes it impossible, up to January 20.

Here:

https://excessofdemocracy.com/blog/2021/1/ted-cruz-misreads-the-history-of-1876-in-his-bid-to-secure-acting-president-nancy-pelosi

Yet, one may observe it, from different angel:

First, the Congress has investigatory powers, for legislative purposes (see recently: Trump and the cases of Mazars and Manhattan) and, without having to legislate simply. Simply by arguing, that legislation concerning election, must be reviewed and fixed, in light of claims of irregularities. Finally, the pandemic, has caused all that mess as alleged seemingly (voting in mails). And the legislators, need to fix the system and improve it, for emergency situations.

Second, and in accordance, due to the emergency state, the deadline of 20 January, can be delayed. As other constitutional rights have been denied due to the pandemic. Or, even the 3 November, has been delayed in fact, by judicial authorization, of the supreme court of Pennsylvania (due to votes in mails).

So, one can argue, that if flexibility was needed here in order to overcome the pandemic restrictions, and constitutional rights and dates were ignored in fact, as well for 20 January.

Thanks

Posted by: El roam | Jan 3, 2021 12:04:23 PM

Biden's legitimacy is dying a death by a thousand cuts. By the time Jan. 20 gets here the only people who will really accept him as president will be the already-blue areas.

Posted by: thegreatdisappointment | Jan 3, 2021 11:13:54 AM

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