Thursday, September 30, 2021

Saving Democracy Doesn’t Mean Doing Everything Democrats Want

By Jack Butler

Wednesday, September 29, 2021

 

When the future of the American republic is at stake, there is only one thing we can do: Give Democrats what they want. Or so you might think after reading Robert Kagan’s Washington Post essay “Our constitutional crisis is already here.” In Kagan’s reckoning, Donald Trump’s continued hold on the Republican Party, his persistence in believing that he won the 2020 election but it was stolen from him, the state-level actions of Republican lawmakers, the expectation that he will run again, the weaknesses of the Democratic Party, and the likely gain of congressional power by Republicans all mean that we are facing a crisis. The U.S., Kagan believes,

 

is heading into its greatest political and constitutional crisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves.

 

Kagan adds that “the destruction of democracy might not come until November 2024, but critical steps in that direction are happening now.” His appeal is, at least theoretically, aimed not simply at Democrats, but at the Republicans and conservatives who were and remain unwilling to follow Trump down his irrational and destructive post-election rabbit hole of election-denialism. But whatever feints Kagan makes in their direction, his ultimate “bargain” for those who wish to adhere to conservatism yet resist Trump’s excesses is, essentially, to give them nothing in return for yielding to the desires of the Democratic Party, which he presents as the only solution to our present crisis.

 

To understand Kagan, it is first necessary to understand what legitimate points he makes. He is right on the general points that Trump’s post-election claims were lies and that Trump’s attempts to defy the results of the election, culminating in the January 6 Capitol riot, should be condemned. He is right to applaud the “recalcitrant Republican state officials who effectively saved the country from calamity by refusing to falsely declare fraud or to ‘find’ more votes for Trump,” as well as “the reluctance of two attorneys general and a vice president to obey orders they deemed inappropriate.” And there is plausibility to his call for liberals and Democrats “to distinguish between their ongoing battle with Republican policies and the challenge posed by Trump and his followers.” The former, he says, “can be fought through the processes of the constitutional system”; the latter “is an assault on the Constitution itself.”

 

Unfortunately, Kagan’s overall prescription is defective. It is marred, in the first place, by his inability to follow his own counsel. For one, though he ostensibly distinguishes between Republican actions in the more workaday business of politics, in which parties are naturally expected to exist in some measure of opposition to one another, and Trump and Trump-allied efforts to challenge the constitutional system, Kagan asserts that, in fact, “the two are intimately related, because the Republican Party has used its institutional power in the political sphere to shield Trump and his followers from the consequences of their illegal and extralegal activities in the lead-up to Jan. 6.” Kagan believes that it should not be possible to behave, in other respects, as a Republican normally would so long as elected Republicans do not yield to all of his preferences. He is aghast at the audacity of Republicans to “play the role of legitimate opposition” to a Biden administration that, he at least admits, “is not without faults.” But even though such criticisms of Biden might have “legitimacy,” they are a dodge so long as Trump remains out there, plotting his next move.

 

As his worst actors, Kagan has in mind, specifically, Representatives Kevin McCarthy and Elise Stefanik, whose efforts against Democratic attempts to investigate January 6 are simultaneously worthy of criticism and an understandable, if inadvisable, response to Democrats’ attempts to convert the events of January 6 — which I condemned at the time — into a partisan weapon. The efforts of Republicans in this area proceed largely in reaction to what Democrats perceive as the lingering political utility of January 6. You could say some Republicans bear a measure of blame for the continuation of this political situation for having declined to use the most powerful political censure available in our system of government to condemn Trumps’ actions, even as it is obvious that Democrats have a vested interest in elevating and extending their hyperbole about January 6.

 

But this criticism does not apply to the Republicans who voted to convict Trump in his impeachment trial, whom Kagan denounces anyway. He does single them out for a kind of praise, calling their vote “brave” and “a display of republican virtue.” Yet he goes to lament that

 

Republicans such as Sens. Mitt Romney and Ben Sasse have condemned the events of Jan. 6, criticized Trump and even voted for his impeachment, but in other respects they continue to act as good Republicans and conservatives. On issues such as the filibuster, Romney and others insist on preserving “regular order” and conducting political and legislative business as usual, even though they know that Trump’s lieutenants in their party are working to subvert the next presidential election.

 

Even these Republicans are, in Kagan’s view, “enabling the insurrection.” To him, even their “brave,” virtuously republican stance against Trump is merely “symbolic.” Claiming to distinguish between legitimate and illegitimate Republican efforts and effort-makers, Kagan seemingly concludes that even Republicans who resisted Trump have failed to act virtuously. “Despite all that has happened,” he laments, “some people still wish to be good Republicans even as they oppose Trump.” This describes many who might have been interested in joining Kagan’s efforts, were he not intent on repelling them.

 

So what can a Republican do to secure Kagan’s imprimatur? Simple: Accede to Democrats’ wishes, including their own preferred perversions of the constitutional order. His ask in this area that, superficially, seems most directly connected to the crisis he describes is passage of Democratic efforts at voting reform. It is a suspicious coincidence that a bill which takes power over elections away from states; centralizes it in the federal government; restricts First Amendment rights so broadly that even the ACLU has taken issue; is almost certainly unconstitutional in multiple provisions; and, most dubiously, has been on the Democratic wishlist since 2019 (N.B. before the 2020 election) just so happens to be the solution to all that ails our republic. (So suspicious that Kagan accepts a watered-down version might be necessary.) The 2020 election wasn’t stolen, but Democrats’ proposed election-reform bills have been sweeping enough to seem like, essentially, announcements of an intention to use the federal government to compromise future elections.

 

Kagan does not recognize or condemn any of the politically and legally suspect attempts by Democratic officials in swing states to unilaterally and haphazardly alter election procedures (which, to be clear, did not actually successfully swing the election for Biden). Nor does he acknowledge that pandemic-driven contingency rules about voting — which he innocuously describes as protecting “election workers, same-day registration and early voting” — were designed for emergency circumstances and are well within the purview of state legislatures to change. No, these emergency rules are now the baseline. Any revision thereof is automatically suspect.

 

But Kagan cannot resist restricting his demands merely to this, and thereby gives the game away. The filibuster, now one of the instruments of our constitutional apocalypse but as recently as 2017 endorsed by 30-odd Democratic senators, must also go. And if anti-Trump Republicans were truly serious about their commitment to democracy, they would not just join Democrats in a “national unity coalition” that concerns itself only with “matters relating to the Constitution and elections.” They would further consider allying with Democrats on a “temporary governing consensus on a host of critical issues: government spending, defense, immigration and even the persistent covid-19 pandemic, effectively setting aside the usual battles to focus on the more vital and immediate need to preserve the United States.” Once again, conveniently, acting as a Republican in good faith is impossible, in Kagan’s reckoning. The lingering specter of Trump makes it incumbent on Republicans, for some reason, simply to roll over on other issues.

 

That Kagan would begin with a seemingly earnest attempt to create a coalition united against Trump’s efforts to subvert our constitutional system and transform it into a campaign to pressure Republicans to abandon what they believe is less surprising given the essay’s indications of his own partisan leanings. Take his belief that it was in some way unseemly for Republicans to have dared to seek conservative policy victories, such as “hundreds of conservative court appointments, including three Supreme Court justices; tax cuts; immigration restrictions; and deep reductions in regulations on business” during Trump’s presidency. To make sure you get the point, he hyperbolically compares such behavior to the German conservatives who “accommodated Adolf Hitler.”

 

There is also his generous treatment of Al Gore’s own post-election tantrum in 2000:

 

Al Gore and his supporters displayed republican virtue when they abided by the Supreme Court’s judgment in 2000 despite the partisan nature of the justices’ decision.

 

Al Gore’s “republican virtue” dragged out the proceedings of an election for months, contributed to the contemporary belief of a large percentage of Democrats that George W. Bush was an illegitimate president, and ratcheted up a bipartisan feedback loop of bipartisan belief in illegitimate elections. That belief was evidenced on the left as early as 2004, when, in the wake of nonsensical theories about Diebold voting machines in Ohio, some congressional Democrats voted to object to the certification of Bush’s reelection victory (they were as wrong to do it as Republicans were to do it in 2020); reared its ugly head in 2016, when many Democrats believed that Russians had hacked Trump’s vote totals; showed up in failed Georgia Democratic gubernatorial candidate Stacey Abrams’s lie that she won the 2018 race; and had groundwork being laid for it just in case in 2020, when Democrats were preparing themselves to believe that Trump was conspiring to have the U.S. Postal Service steal the election. Republicans have not been blameless in this area. But if Kagan were interested in genuine conciliation instead of partisan extortion, he might have acknowledged the faults of the Left here.

 

Kagan makes a few other, scattered hints toward concession. But the preponderance of his argument, and its overall thrust, suggests their insincerity. The attempts to magnify and manipulate concerns about what Trump might do in 2024 to extort Republicans and conservatives into abandoning their commitment to what they believe, however, seem quite sincere. In this, he resembles Vox senior correspondent Ian Millhiser, who cannot tolerate the fact that the Supreme Court justices of a tainted president get to remain on the bench (they get no credit for ruling against their appointer, apparently). The common thread here is an inability to separate legitimate political action and interest from subversion of the republic, and a deliberate attempt to blur the lines between the two so that they can be condemned as one.

 

That Kagan would make such an attempt indicates either that he does not actually see this crisis as being as serious as he wants you to think (as otherwise he might consider offering more than token concessions to erstwhile political opponents interested in acting in good faith on this issue), or that he is incapable of rising above his partisan station to meet it. There may well be serious challenges facing the American constitutional system over the next four years. But we will not resolve them by introducing others. Unless or until those on the left end their own attempts at introducing new deviations from the American political order, then those on the right who oppose all forms of constitutional mischief, not just Trump’s, will have to do so alone.

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