Tag Archives: democracy

North Dakota Is About to Kill the National Popular Vote Compact

http://www.masshist.org/features/juniper/assets/who-counts/carousels/toles_electoralcollege_tt_exh.jpg

Presidential elections are rigged in favor of Republicans. North Dakota wants to keep it that way.


As we’ve seen in the last two elections, the Electoral College gives the Republican candidate about a 3-4% advantage, which might be growing as the rural areas (which the EC over-weights) get more conservative and the cities (which it underweights) more liberal.

Hillary Clinton won the 2016 popular vote by 2.1% but still lost the election, and Biden’s 4.4% victory in 2020 goes away if you lower his margin by .7% across the board. (He loses Arizona, Georgia, and Wisconsin, leading to a 269-269 tie that the House — with one vote per state delegation — would have decided in Trump’s favor.) Hillary would still have lost if you similarly boosted her margin in every state by .7%.

So the Electoral College’s thumb-on-the-scale was worth about 2.8% in 2016 and 3.7% in 2020. Republicans like to talk about “rigged elections”. Well, they’re right: Presidential elections are rigged in their favor.

The straightforward way to unrig our elections would be to pass a constitutional amendment eliminating the Electoral College and awarding the presidency to the candidate who gets the most votes. But that path requires a 2/3rds majority in both houses of Congress and ratification by 3/4ths of the states, so it can’t pass without bipartisan support. Few Republicans have a sense of fair play or respect for democracy, so they’re not going to give up the unfair advantage the EC gives them. [1]

An alternative scheme for unrigging our elections is the National Popular Vote Interstate Compact: States agree to appoint electors for the candidate who wins the national popular vote, even if that candidate didn’t win in their particular state. If states representing 270 electoral votes all passed a law joining the compact and fulfilled their commitments, the Electoral College would never screw the American people again.

I have mentioned before that, as much as I like this idea, I would never trust this agreement. In 2020, we saw how many bad-faith actors hold positions of authority in the Republican Party. (Though most Republican election officials did their jobs honestly; Biden could not have won without them.) It was hard enough to feel secure that Republican legislatures wouldn’t step in and illegitimately award their electors to Trump, even though he got fewer votes both in their states and in the nation as a whole. If a Republican legislature in a place like Georgia or Wisconsin could give a Republican the White House just by agreeing with the voters in their state, I have to believe they would, no matter what commitments they might have made previously. [2]

Well, it looks like messing up the NPVIC is even easier than I had thought. North Dakota, owner of exactly three electoral votes, may be about the skewer the whole thing: The state senate has passed a law that forbids state election officials to release their popular vote totals until after the Electoral College meets.

[A] public officer, employee, or contractor of this state or of a political subdivision of this state may not release to the public the number of votes cast in the general election for the office of the president of the United States until after the times set by law for the meetings and votes of the presidential electors in all states

The upshot is that there would be no official national popular vote total. Compare this to the process laid out in the NPVIC:

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.

The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”

The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.

If everyone involved would carry out the spirit of this agreement in good faith, probably there would be no problem. It’s extremely unlikely that North Dakota’s votes would make the difference in the national popular vote, so even without knowing their totals, the popular-vote winner should be apparent. In 2016, for example, only 344K votes were cast in North Dakota, and Hillary won nationally by 2.9 million.

But now let’s talk about the real world, where bad-faith actors abound. If I’m, say, a Republican official in 2016 Wisconsin, where a good-faith application of the NPVIC would have me appoint pro-Hillary electors even though Trump won my state, I can claim that without the North Dakota votes the conditions of the NPVIC have not been fulfilled. Would the Republican legislature or a Republican-appointed judge overrule me? I kind of doubt it.

So I think the National Popular Vote Interstate Compact is dead. This particular hole could be patched without a constitutional amendment, if Congress could pass a law (over a Republican filibuster) mandating that states release their vote totals in a timely fashion. But I think this would just start a game of whack-a-mole. And what if a red state whose vote totals do matter, like Texas, decides to play?

I think the monkey-wrenchers win this battle, and we’re stuck with the Electoral College until we can muster a constitutional amendment.


[1] Electoral College advocates sometimes hide their partisan intentions by making arguments that sound good, but don’t hold up to even a small amount of scrutiny. For example:

A presidential campaign aimed at achieving a popular vote majority would completely ignore most states and focus, instead, on a few populous states containing the nation’s largest cities. This urban-centric strategy would silence the political voice of most regions of the country.

Anybody who has lived in a state with a big city knows this isn’t true. If it were, no Illinois candidate would ever leave Chicago, Texas campaigns would only happen in Houston and Dallas, and Florida candidates would camp out in Miami. They don’t — and for good reason. Consider, for example, the map of the Ted Cruz/Beto O’Rourke Senate race of 2018. Cruz lost just about all the cities — Houston, Dallas, San Antonio, El Paso — but won anyway because the rural areas came through for him.

In a popular-vote system, candidates look for votes wherever they think they can get them, because all votes count the same. Convincing somebody to vote for you in Chugwater, Wyoming counts just as much as convincing somebody in Los Angeles.

In fact, if you apply the make-them-campaign-everywhere argument honestly, it will point you in exactly the opposite direction: Because of the Electoral College, presidential candidates only campaign in swing states like Pennsylvania and Florida, and ignore most of the American people. Here’s a map where states are sized according to how many presidential campaign events happened there in 2012. Three of the four biggest states — California, Texas, and New York — don’t even show up. But neither do small states like Alaska, Utah, or Rhode Island, because nobody bothers to compete in states where the electoral votes aren’t up for grabs.

In a popular-vote system, it would make sense for a Democratic candidate to campaign in, say, the Black neighborhoods of Memphis or the Hispanic areas around El Paso — because there are people there who might be convinced to vote for you. Similarly, a Republican candidate should hold rallies in upstate New York or conservative Chicago suburbs. But they don’t, because in the Electoral College system, competing for votes that won’t tip a whole state is wasted effort.

So in fact it’s the Electoral College that silences “the political voice of most regions of the country”.

[2] The Compact tries to deal with the question of states changing their minds:

Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.

But there is no enforcement mechanism, and a basic principle of our system of government says that no legislature can claim power over a future legislature. (As Jefferson put it: “The dead should not rule the living.”) So if Wisconsin, Pennsylvania, and Michigan had joined the compact in 2015, and then in 2016 one of them passed a law refusing to award their electors to Hillary, I think Trump still becomes president. States might sue each other later, but the deed would be done.

The Republican Party Chooses Not to Change

https://www.washingtonpost.com/opinions/2021/01/29/civil-war-soul-of-gop-over-trump-won/

Impeachment is a chance to put the Trump Era in its rearview mirror, but instead the GOP is doubling down on authoritarianism and conspiracy theories.


Less than a month ago, then-President Donald Trump incited a mob to attack Congress, for the purpose of hanging onto power in spite of having decisively lost the November election. At the time, that crime seemed to put the capstone on the most lawless administration at least since Richard Nixon’s, and maybe in all of American history.

Republican members of Congress, who (like Democrats) had to evacuate the House and Senate chambers in fear for their lives, briefly seemed willing to reconsider where their unquestioning support of Trump had brought them. Trump’s attempted coup — the culmination of a months-long plot attempt to undo his loss and effectively end American democracy — brought to a head a theme that the country has been debating since 2015: How far will Republicans let Trump go?

Back then, the debate was about norm-violations that look small compared to insurrection, but had previously been beyond the pale: calling Mexican immigrants rapists, or claiming that American POWs are not heroes, or ridiculing a reporter by imitating his disability, or encouraging his supporters to be violent, or bragging about sexually assaulting women.

Trump critics raised a reasonable question: If those actions aren’t over the line, where is the line? We never got an answer, but instead were accused of paranoia. Trump was unorthodox and not “politically correct”, but imagining that he was dangerous to the American Republic was just “Trump Derangement Syndrome”, a particular form of craziness induced by an irrational hatred of a man most of us didn’t care about one way or the other before he began running for president.

Closing ranks. This week we got some additional information: For the majority of the GOP, physically attacking Congress and trying to end democracy isn’t over the line either.

Tuesday, 45 of the 50 Republican senators signaled their unwillingness to hold Trump accountable for inciting the Capitol lnsurrection by voting not to hold an impeachment trial at all, on the grounds that the Constitution doesn’t allow impeachments of former officials. (That’s not a credible position, as explained in the Appendix.) Among the 45 was Senate Minority Leader Mitch McConnell, who previously had seemed open to conviction.

House Minority Leader Kevin McCarthy, meanwhile, made a pilgrimage to Mar-a-Lago to get back in Trump’s good graces. In the wake of running for his life, McCarthy had said Trump “bears responsibility” for the insurrection. But Thursday he needed to kiss the ring.

Purging anti-Trumpists. Instead, the party has decided to punish those Republicans who showed some loyalty to America’s constitutional system of government. Rep. Matt Gaetz (R-Florida), went to Wyoming to raise ire against Rep. Liz Cheney, who said “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution” than Trump inciting a mob to attack Congress, and then voted for impeachment. Don Jr. spoke to the anti-Cheney rally by phone. A state senator has already announced a primary challenge.

The Arizona Republican Party has censured Governor Ducey, ostensibly for taking action against Covid, but the fact that he refused to misreport Trump’s electoral loss was probably also a factor. South Carolina’s Republican Party has censured Rep. Tom Rice for his pro-impeachment vote. Trump is calling for Georgia Governor Brian Kemp to face a primary challenger, again because he refused to overrule the voters and give Georgia’s electoral votes to Trump.

Defending extremism. Simultaneously, the GOP is doing little to distance itself from Marjorie Taylor Greene, a Trump-supporting freshman Congresswoman from Georgia who has brought a new level of insanity to the Capitol. Here’s one good summary of the full range of Greene’s unhinged-ness and here’s another one.

But if you prefer to see for yourself and make your own judgments, Greene posted a 40-minute rant to YouTube in 2018. (Warning: that’s 40 minutes of your life you’ll never get back. I recommend skipping the first half, which is mainly about how Facebook is censoring her — by applying the same community standards it applies to everybody.) If you’re looking for a point to it all, she never really gets around to making one. But along the way you’ll learn such fascinating things as

  1. Hillary Clinton had JFK Jr. murdered to clear the field for her Senate race in 2000. It was “another one of those Clinton murders”.
  2. No plane actually hit the Pentagon in the 9/11 attack.
  3. Getting rid of Saddam Hussein was part of an intentional plan to destabilize the Middle East, so that the US could be “invaded” by Muslim refugees. “And that happened under Barack Obama’s presidency.” George W. Bush barely comes up in the entire 40 minutes.
  4. Obama was also responsible for the immigration lottery (which goes back to 1989) and chain migration (back to 1924 and expanded in 1965).
  5. White liberals who voted for Obama are “really the racists”.
  6. MS-13 gangsters were “the henchmen of the Obama administration” who did “the dirty work” like murdering Seth Rich.

The GOP House leadership has appointed Greene to the House Committee on Education and Labor. McCarthy intends to have a talk with her this week, but it’s hard to imagine that talk leading to any discipline, since Trump is backing her. (AOC to Chris Hayes: “What is [McCarthy] going to tell [Greene]? Keep it up?”)

Rep. Jimmy Gomez (D-CA) is introducing a resolution to expel Greene from Congress, but without some Republican support it won’t get the 2/3s majority needed to pass.

Prague Spring. The best analysis of the GOP I’ve seen came from New York Magazine’s Jonathan Chait, who used a Soviet analogy. While the post-insurrection openness to criticizing Trump may at first have looked like Glasnost, it was actually a Prague Spring, “a brief flowering of dissent and questioning of dogma quickly suppressed by a remorseless crackdown.”

Chait breaks the Party into three factions:

  • Never Trumpers. Flake, Romney, Kasich, and a bunch of mainstream-media columnists.
  • Violent authoritarians. Marjorie Taylor Greene, Lauren Boebert, QAnon, the Proud Boys. They’re sorry Trump’s insurrection failed to keep him in power, but have no other regrets about it.
  • Soft authoritarians. McConnell, McCarthy, Rupert Murdoch and his media empire. (To my mind, these folks are equivalent to the Hindenburg conservatives of the Weimar Republic.)

The heady predictions that the party would break free of the Trumpist grip already seem fanciful. If anybody is suffering repercussions for their response to Trump’s autogolpe, it is the Republicans who criticized it. Conservative Republicans are threatening to strip Liz Cheney of her leadership post after she voted to impeach Trump. … Adam Kinzinger, another pro-impeachment Republican, is facing censure. The Michigan Republican member of the state board of canvassers, who broke with his party to certify the state’s election results, is losing his job as a result of his refusal to go along with Trump’s lie. Fox News is firing journalists associated with its election call that Biden won Arizona. …

The path of least resistance for the soft authoritarianism will be to oppose Trump’s conviction on technical grounds, and then hope he fades away quietly.

https://theweek.com/cartoons/963651/political-cartoon-gop-right-wing-romney

Least resistance. The sad thing is that the soft authoritarians could get their wish if they weren’t such cowards. They have the power to push Trump off the stage, if they would only use it. But they won’t.

McConnell, McCarthy, and the rest need to ask themselves where this going. Trump’s behavior is not going to improve. The domestic terrorist movement he has allied with isn’t going to stop. Next-generation Trumps like Greene aren’t going to tone it down. The soft authoritarians are tying themselves to people whose actions they can neither control nor predict.

This is how bad it’s gotten: Eric Cantor is the voice of reason. The GOP’s problems didn’t start with Trump, he writes. They started when Republican politicians started pandering to their base voters’ fantasies rather than telling them what is and isn’t true or possible.

For Cantor, the government shutdown of 2013 was a key moment. Ted Cruz and some other leaders told the base that the party could defund ObamaCare, if only its leaders fought hard enough. They couldn’t and didn’t, but pretending that they could put the nation through a pointless crisis. Here’s how Cantor sees the path forward:

In many ways, it is the classic prisoner’s dilemma. If the majority of Republican elected officials work together to confront the false narratives in our body politic — that the election was stolen (it wasn’t), that there is a QAnon-style conspiracy to uproot pedophiles at the heart of American government (there isn’t), that a Democratic-controlled government means the end of America (it doesn’t; it may produce worse policy, but the republic has survived 88 years of Democrats occupying the White House) — all Republicans will be better off. If instead most elected Republicans decide to protect themselves against a primary challenge through their silence or even their affirmation, then like the two prisoners acting only in their own interests, we will all be worse off.

Trump’s impeachment trial is a golden opportunity to start rooting out those false narratives. But for that to happen, Mitch McConnell will have to provide leadership. That seems unlikely.

Appendix: The Constitutionality of Impeaching Former Officials

Slate does a good job explaining why former officials can be impeached. It’s not even a close call.

Let’s start with the Constitution, which never directly addresses the question. Article I says that the House “shall have the sole Power of Impeachment” and the Senate “shall have the sole Power to try all Impeachments”. It limits the punishments for the convicted to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”, leaving any further punishment to the courts. Article II stipulates that convicted officials “shall be removed from office” after conviction, but it is silent about whether former officials can be disqualified from future office.

That’s all the guidance it gives. The implication of these sparse instructions is that people at the time of the founding already knew what impeachment meant. (Similarly, the Constitution also doesn’t define “Money” or “credit” when it gives Congress power “To borrow Money on the credit of the United States”.)

What everyone would have known was how Great Britain handled impeachments. (In Federalist #65, Alexander Hamilton said the Constitution’s notion of impeachment derived from Great Britain’s.) They also would have known how the already-existing state governments did it. Slate spells it out:

Indeed, the British impeachment that most informed the Framers’ thinking about the impeachment power was the impeachment of Warren Hastings for improprieties as the governor-general of Bengal. Hastings had been out of this office for two years before his impeachment by the House of Commons. Moreover, at least two states—Virginia and Delaware—had established that their impeachment power extended to former officers.

Also, Congress has faced this issue before, and resolved it during the Grant administration:

Congress has also expressly addressed this question and resolved it in favor of the original understanding. In 1876, the House drafted articles of impeachment against President Ulysses S. Grant’s Secretary of War, William Belknap, but Belknap resigned before the House could vote on the articles. The House debated whether Belknap’s resignation deprived the House of jurisdiction. After the debate, the House voted to impeach Belknap, implicitly rejecting the argument that it lacked jurisdiction. The Senate also took up the issue and voted 37–29 that Belknap’s resignation did not deprive it of jurisdiction.

So the question has an obvious answer, for those who are willing to know it: Trying Trump after he has left office is entirely constitutional. Claiming it isn’t is just an excuse to let Trump off the hook without considering the evidence against him.

Staying Sane in Anxious Times (without being useless)

Everything dies. But not today.


On this blog, I usually report news, analyze trends behind the news, and save pastoral counseling for my occasional talks at churches. But this week I’ve been sensing an unusual level of anxiety and depression in the people I interact with, and I imagine that Sift readers are sharing a lot of those feelings. So let’s address that.

If the election were tomorrow rather than five weeks from tomorrow, I think I’d tell you all just to suck it up and think about your own issues later. But five weeks is a long time to stay in the states of mind I’m seeing, and carries risks of longer-term psychological and psychosomatic damage. So I think it makes sense to take a little time to get our heads together before the home stretch.

The depression, I think, has been building for some while, as the virus takes away more and more of what we look forward to in life. (I’m currently wondering if my usual Christmas plans can work out this year. Will I ever get to travel again?) But the anxiety is largely election-related, and increased suddenly this week in response to Barton Gellman’s article in The Atlantic, “The Election that Could Break America“.

Worst cases. I’ll have more to say about the content of that article in this week’s summary post, which should be out a few hours after this one. For now, I’ll just sum up the gist: There are scenarios in which Trump hangs onto power despite the voters’ desire to be rid of him, and he seems to be angling to push the country into those scenarios.

The worries raised by Gellman’s article (and others with similar themes) go well beyond the usual election anxieties: that some last-minute surge of support could carry Trump to an ordinary victory, or even that he might repeat 2016’s dubious achievement of winning the Electoral College despite losing the popular vote by a wide margin. Those outcomes would be disappointing, and would have a number of horrible consequences. But at the same time, they would be part of the normal ebb and flow of American politics. If the American people show the bad judgment to re-elect Trump, we’ll just have to work harder to convince them to turn the country in a new direction in future elections.

But if Trump can totally circumvent the will of the people, then something fundamental has changed. In that case, it’s hard to say what we would need to do next time, because this time we already did what we thought we needed to do, and failed anyway. And if the ordinary limits on political power-seeking can be ignored without consequence, then who can have confidence that we will have a chance to do anything at all next time? By 2024, the United States might be the kind of country where the ruling party counts the votes itself, and proclaims that it has been re-elected (for a third term, and then a fourth) by a margin that no one really believes.

In short, if the worst outcomes Gellman pictures come to pass, the American experiment with democracy might be over.

Personally, I don’t believe the worst scenarios will play out. I think the margin Biden has in the polls is real, and that it will hold up as the election approaches. (It’s worth pointing out that we all had the same doubts about the polls going into the Blue Wave of 2018, which played out exactly as the polls predicted.) In 538’s analysis, the current tipping-point state is Pennsylvania, where Republicans have gerrymandered their way into a majority in the legislature. But it’s worth noting that Biden is currently favored in four states beyond that — Arizona, Florida, North Carolina, and Ohio — any of which might put him over the top. (Arizona would leave Biden 1 vote short, which could come from either Nebraska’s or Maine’s second congressional district.) It’s one thing to imagine one cabal of local Republicans venturing into near-treasonous territory to give Trump another term, but overthrowing democracy in five states simultaneously would be much harder to pull off.

In short, Trump’s anti-democratic tactics may nudge the dial a little, or even more than a little, but still not enough to overcome a decisive message from the electorate. As Michelle Goldberg has pointed out, his strongman talk is a sign of weakness, not of strength.

Autocrats who actually have the power to fix elections don’t announce their plans to do it; they just pretend to have gotten 99 percent of the vote.

And as many people have observed: You don’t question the legitimacy of an election you expect to win. Further: “I’m going to stay in power no matter what you think” is hardly a closing message designed to convince undecided voters.

But having said that, I don’t deny the possibilities Gellman lays out, and I don’t recommend you simply put them out of your mind. There is a chance — not a likelihood, in my opinion, but a chance — that we are living in the last days of American democracy.

It’s no wonder that people are telling me they lose sleep about that. That loss of sleep is the problem I want to address.

Anxiety and denial. It’s not that you have nothing to worry about, but being low-level anxious all the time — or occasionally going into high-level anxiety and melting into a puddle — is not a useful response. No one is better off because you’re not sleeping.

So what’s a better response? Let’s start by thinking about what anxiety is and what it’s for. People in the middle of emergencies typically don’t get anxious. If your child starts to run in front of a car, you don’t get anxious, you reach out and snatch her back from the path of the car — and maybe shake for a while afterwards about what might have happened. When the wolves are chasing you, you just run, and your mind is filled with nothing but running.

In short, when you really can fight or flee, you fight or flee. Anxiety happens when you get a fight-or-flight reaction that you can’t immediately act on. You hear that a lay-off is coming at work, but who can you fight and where can you run? You just have to wait and see what happens.

Anxiety is fight-or-flight on hold. It keeps you keyed up in case you have to fight or flee soon.

And that was a fine reaction when our primitive ancestors saw a motion in the grass and had to wait a bit for more information about what it was. But it’s poorly adapted to civilized times, when problems play out over months or years. Staying keyed up for months or years will kill you just as surely as whatever might be hiding in the grass.

That’s why denial is such a popular alternative. As the 19th century philosopher Charles Sanders Peirce put it: “When an ostrich buries its head in the sand as danger approaches, it very likely takes the happiest course.”

The downside of denial is that it makes you useless, both to yourself and to others. That’s been the problem with the Trump administration’s response to coronavirus. From the top on down, they have assured us that it isn’t that bad and will go away soon, so nobody has to do anything they don’t want to do. And everybody is doing a great job, so there’s no need for recriminations and nothing to stress over. In the short term, their it’s-all-fine denial may be more pleasant than acknowledging the reality of the danger, but it has been a big factor in the deaths of more than 200,000 Americans.

The reason anxiety is unpleasant is that it’s a promissory note: We owe the future some action, and we’re keyed up so that we don’t forget.

Perhaps the most dysfunctional role for anxiety, though, is that it can become an end in itself: We’re not keyed up to do something, we’re keyed up to punish ourselves for not doing something. We hang the promissory note on the wall, not because we’re going to pay it, but so that we can feel guilty about not paying it.

That kind of self-punishment serves no one. You might as well be in denial. You’d be happier and the rest of the world would be no different.

So what should we do? The best response to chronic anxiety, in my opinion, is to kluge together a combination of action and denial.

Years ago, when I was first starting to make money I could invest towards retirement — thank you, younger self — I found myself worrying about my fledgling portfolio nearly every day. Not just checking stock prices, but wondering if my whole approach was right. Eventually I realized that daily reconsideration of my strategy was an extremely inefficient use of my attention. Rather than worry for a few minutes here or there every day, what I really needed to do was set aside some serious thinking time about once a quarter.

So I set a date to think things through in depth, and I kept that appointment. I did that every three months. In between, I might watch the market in a casual way, but I cut myself off every time I started to fret. “I have set aside a time to think that through properly, and that approach is going to work  better than anything I could figure out while I’m standing here waiting for the tea kettle to boil.”

I recommend something similar now. Using the stray moments of your attention to think about the looming end of American democracy is not going to serve either you or the nation. Instead, block out a time on your calendar (within the next few days, I suggest) to think seriously about the question: “What am I willing to do to keep Trump from hanging onto power?” Are you willing to send money to the Biden campaign or some other political group? Volunteer? Call your friends and encourage them to vote? Write or call your representatives in Congress? Write letters to the editor? Post on social media? Demonstrate against anti-democratic actions, either at your state capitol or in Washington?

Maybe all you’re willing to do is vote. OK, admit that and figure out how you’re going to do it. Are you registered? Where is your polling place? How does early voting or voting-by-mail work in your state? Don’t let your inability to take some grand action get in the way of the little you can actually do.

Once you have your list of actions, start doing them, and set aside another block of time in a week or two to think about how it’s going. Is it enough? Is it already more than I can handle? Should I correct my approach somehow?

But once you’ve decided what you’re doing and are in the process of doing it, tell your anxiety to go away. You’ve set aside a time to think about it, but that time is not now. So STFU, monkey mind. I’m working on it; it’s all going to be fine.

Plan. Do. Then do your best to put it out of your mind until it’s time to replan. Are you feeling guilty that you’re not doing enough? Make a note of that, so you can think about it during your next planning session. But don’t think about it now. You’ve already dealt with it.

When it’s time for me to be the fox, I’m the fox. But when it’s not, I’m the ostrich, and I take the happier course.

Accepting limitation. You may already be raising this objection: The problem with telling yourself “I’ve already dealt with that” is that you really haven’t. Write your check, make your phone calls, plan your march on Washington — and Donald Trump is still out there, still in power, and still plotting to hang onto power no matter what the voters want.

When you realize that, you may find yourself thinking: “As long as Trump’s coup is still possible, I haven’t done enough.”

That way lies madness. Because you are an individual, and the problems of the world are out of your scale. You’re not going to stop Trump by yourself, just like you’re not going to stop global warming or end racism. You can play a part in those stories and I hope you do. I hope you never stop looking for some way to play a bigger part (at sensible intervals, and not for a few minutes several times every day). But you are not the solution. At some point, you have to do what you’re going to do and let it go, trusting the rest of us to play our parts, and trusting God or the Universe or whatever powers work on higher scales to make things come out right.

Because you can’t guarantee a happy ending. The World is not Your Story.

So figure out what you’re going to do, do it, and then let it go.

Accepting fate. It may not shock you to learn that my midlife crisis was more philosophical than most. It wasn’t just that I had a growing bald spot or was losing my vertical leap, although those things were certainly happening. And it wasn’t even the realization that I was going to decline and die, which we all understand at some level, but don’t fully grok until the downhill path starts to open up in front of us.

My midlife crisis centered on the larger realization that none of the substitutes for personal immortality work either: All the people whose lives you change will die too. The organizations and institutions you serve may outlive you for some while, but not forever; in time, they also will collapse. Someday, the last of your descendants will die. Ultimately, civilization will fall, humanity will go extinct, the Sun will swallow up the Earth, and the Universe itself will go cold.

It’s the Ozymandias problem: “Look on my works, ye mighty, and despair.”

Why am I mentioning this now? Because the possibility of a Trump coup is causing a lot of Americans to see for the first time that our democracy is mortal. And that vision can raise a primitive terror even bigger than the prospect of living under some tinhorn dictator, as people around the world have been doing since the beginning of Time.

This wasn’t supposed to happen. Ever. Not to us.

But it might.

My midlife crisis and its resolution were bracketed not by insights from deep philosophers, but by two quotes from TV shows. At some point in The X-Files, an otherworldly character makes a matter-of-fact statement to the series’ main character: “Everything dies, Mr. Mulder.”

And in Game of Thrones, young Arya Stark mentions to her swordmaster that she has been praying to the gods. “For us,” says the master, “there is only one god. His name is Death, and we have only one thing to say to him: Not today.”

These days, I always hold those two quotes in mind. The thought that we might be living in the last days of American democracy is indeed horrible. But it shouldn’t be unthinkable, because it’s going to happen someday. Everything dies, and that includes the Constitution.

But the inevitability of Death doesn’t undo the lives we are living. We can’t save anything forever, but we can say “Not today.” And we can struggle to make good on that vow.

American democracy will die someday, because everything does. But not today. Not on November 3. Not on January 20.

That’s what we’re fighting for.

So figure out what you’re going to do, and go do it. But then let it go and live, because you’re not dying today either.

The Illegitimacy of a Conservative Supreme Court

A minority-elected President and a minority-elected Senate “majority” might cement an unpopular Supreme Court majority for decades to come — and such a Court might bless the tricks that will allow the further expansion of minority rule.


The death of liberal Supreme Court Justice Ruth Bader Ginsburg, and the likelihood that President Trump and the Republican Senate will replace her with an extreme conservative, creating a 6-3 conservative majority on the Court, raises a number of immediate questions: Can Democrats slow the process down somehow, so that Ginsburg will be replaced by a new president and a new Senate in January? Can Republicans be shamed by the hypocrisy of confirming Trump’s nominee so close to the election (after denying President Obama a Supreme Court appointment much further from the election) that they will forego a confirmation vote? If not, as is almost certain, can four Republican senators be peeled off to prevent Trump’s nominee from being confirmed? And so on.

Speculation. This kind of speculation is addictive, but of limited use. News channels love it, because the production cost of speculation is near zero — just bring your usual talking heads together and turn them loose. Viewers easily get obsessed with it, because speculation appeals to both our hopes and our fears. (Maybe something awful will happen. Or maybe we’ll be saved.) Pundits get to demonstrate their superior savvy by crafting complex House-of-Cards-style scenarios based on loopholes in the rules that lesser pundits haven’t noticed.

And in the end, what does it matter whether or not we divine the future? The useful actions we might take — expressing our desires both publicly and privately, putting pressure on our elected representatives, giving time or money to campaigns, or convincing our neighbors to share our opinions — don’t depend on knowing the future. We could just do them without knowing how they’ll come out.

Living with uncertainty is uncomfortable, but it is honest, because we don’t actually know what’s going to happen. We almost never need to know. We would all be more effective forces for justice and democracy if we spent less time speculating about events beyond our control and more time planning our actions.

Bearing in mind the pointlessness of being an armchair tactician, I want to back up and look at the larger picture: Why is the current situation a problem? Supreme Court justices, like all the leading voices in our Republic, are supposed to come and go. The Constitution defines a process by which our elected representatives replace them.

That process has gone wrong. In the long term, that’s the real problem.

Recent trends have emphasized the anti-democratic nature of our constitutional system, and the worst aspects of those trends have coalesced around the Supreme Court, creating a Court that is far more conservative than the American people. As that conservative Court increasingly excuses minority-rule tactics of gerrymandering and voter suppression, a vicious cycle has developed that threatens the legitimacy of both the Court and the government as a whole.

Democracy and the Founders. When the Constitution was written, large-scale democracy was still an untried notion. England, for example, had a Parliament, but it shared power with the King, and its electorate was still fairly small. (Universal suffrage even for men wasn’t achieved until 1918.) The Founders themselves were of two minds: The sovereignty of the People was good, but “mob rule” was bad.

The Constitution was an attempt to thread that needle. All power did eventually come from the People (minus women and non-white people), and if the (white male) People held an opinion consistently over time, they would eventually get their way. But in practice a number of institutional dams were built to control the floods of public opinion:

  • The President was chosen by an electoral college, and not by popular vote. Popular vote was not even tabulated until John Quincy Adams’ election in 1824 — and he lost that popular vote by a considerable margin to Andrew Jackson.
  • Senators were not only allocated equally to all states regardless of size, but were chosen by the state legislatures rather than direct election. Popular election of senators was established by the 17th Amendment, which wasn’t ratified until 1913.
  • Supreme Court justices were appointed for life, and became completely insulated from the electorate once they were seated. They were nominated by presidents and approved by the Senate, and so were already fairly distant from the people.

In short, not only could you not vote on Supreme Court justices, you couldn’t even vote directly for anybody involved in choosing Supreme Court justices.

The era when it didn’t matter. Over time, the entire Western world got more comfortable with democracy. Suffrage gradually expanded, as religious tests and property tests were eliminated, and finally women and racial minorities were allowed to vote. Monarchies were either overthrown or turned into showpieces. Anti-democratic institutions like the House of Lords gradually lost their power.

In the US, voters got the right to elect senators, but the rest of the anti-democratic structure remained intact. It wasn’t eliminated largely because it didn’t matter: Presidential candidates who won the popular vote won the Electoral College as well, and parties that won the House typically won the Senate also.

Oversimplifying just a bit, the anti-democratic features of our system didn’t matter because the major conflicts were regional: the North against the South, or the East against the West. To the extent that they weren’t regional, the same sorts of issues played out in large and small states alike. As recently as the 1970s, South Dakota and Idaho produced liberal icons like George McGovern and Frank Church, while New York could elect a conservative like James Buckley.

A final factor: Until the 90s, California was a swing state. The same factors that turned an election in California were likely playing out all over the country.

Why it matters now. The big divide in the country today is urban vs. rural. Even in a red state like Texas, which Trump won by 9% in 2016, the big cities — Houston, Dallas, San Antonio — voted Democratic. Other red-state cities, like Louisville, Nashville, and Atlanta, went Democratic as well.

Largely this split reflects another split: white vs. non-white. Rural populations are overwhelmingly white, urban populations overwhelmingly non-white.

Small states are small precisely because they don’t have big cities. (Rhode Island, where the Providence metro area has more people than the state itself, is the exception.) So a system that favors small states favors rural interests. In the current environment, small-state privilege means white privilege and Republican advantage.

Meanwhile, the biggest state, California, has shifted far to the left of the rest of the country. Hillary Clinton won California in 2016 by 4.3 million votes. In the rest of the US, Trump had a 1.5 million vote advantage.

The result is that the Electoral College has overruled the voters twice in the last five elections, after not causing any problems since 1876. Both times it gave us Republican presidents who led the country into major disasters: George W. Bush (the Iraq War and the Great Recession) and Donald Trump (Covid-19).

The Senate has become increasingly difficult for Democrats to win, even when the majority of voters back them. Nate Silver has done the numbers on this.

At FiveThirtyEight, our favorite way to distinguish between urban and rural areas is based on using census tracts to estimate how many people live within a 5-mile radius of you. Based on this, we can break every person in the country down into four buckets:

  • Rural: Less than 25,000 people live within a 5-mile radius of you;
  • Exurban or small town: Between 25,000 and 100,000 people within a 5-mile radius;
  • Suburban or small city: Between 100,000 and 250,000 people within a 5-mile radius;
  • Urban core or large city: More than 250,000 people within a 5-mile radius.

As it happens, the overall U.S. population (including Washington D.C. and Puerto Rico) is split almost exactly evenly between these buckets: 25 percent rural, 23 percent exurban/small town, 27 percent suburban/small city, and 25 percent urban core/large city.

But when Silver constructs, the “average state” — weighing small states the same as big states — he gets very different numbers: 35% rural, 14% urban core.

In the U.S. as a whole, 60 percent of the population is non-Hispanic white and 40 percent of the population is nonwhite. But in the average state, 68 percent of people are white and 32 percent are nonwhite.

Another way to get at the same issue is to look at how many Americans the current Republican Senate majority actually represents. (I did this same calculation on my own before realizing that Silver had already done it.)

[D]espite their current 47-53 deficit in the Senate, Democratic senators actually represent slightly more people than Republicans. If you divide the U.S. population by which party represents it in the Senate — splitting credit 50-50 in the case of states such as Ohio that have one senator from each party — you wind up with 167 million Americans represented by Democratic senators and 160 million by Republicans.

In other words, a truly representative Senate would have a 51-49 Democratic majority, not a 53-47 Republican majority. After looking at various other sorts of data, he concludes:

the Senate is effectively 6 to 7 percentage points redder than the country as a whole, which means that Democrats are likely to win it only in the event of a near-landslide in their favor nationally.

What this means for the Supreme Court. Democrats have won the presidential popular vote in six of the last seven elections, but have only gotten to take office four times. This year, Trump’s hopes for re-election hinge on repeating his 2016 path: squeaking out an Electoral College majority from a voting minority. Silver estimates that Biden has to win the popular vote by 3-4% to be confident of taking office.

Similarly, to win the Senate, Democrats will have to win at least two seats in traditionally red states like Arizona, North Carolina, Iowa, Georgia, or Montana.

In other words, the Constitutional mechanisms that were supposed to insulate the Court from mercurial swings in public opinion now serve to insulate them from the People’s sovereignty entirely. If the People split 50/50, the Court will be conservative.

The current travesty. A minority-elected President and a minority-elected Senate “majority” are now in position to appoint their third Supreme Court justice, and establish a 6-3 conservative tilt. The current conservative justices are Clarence Thomas (age 72), Samuel Alito (70), John Roberts (65), Brett Kavanaugh (55), and Neil Gorsuch (53). Add another young justice, like Amy Coney Barrett (48), and it is not hard to imagine another 15 years going by before a liberal or even moderate Court majority is possible — no matter what the voters want.

Worse, the Court has become part of a vicious cycle: Because of its partisan Republican leanings, the Court is already unwilling to defend voting rights. Chief Justice Roberts eviscerated the Voting Rights Act in 2013, and the Court has given a green light to partisan gerrymandering. We already see the result of this at the state level: In states like Wisconsin, Michigan, Pennsylvania, and North Carolina, control of the legislature is out of the reach of Democratic voters, even when they form a clear majority. Republicans regularly win 13 of Pennsylvania’s 18 seats in the House of Representatives, despite getting fewer total votes.

The United States caught in a downward spiral: Republicans empowered by a rigged system rig the system further.

Extreme action is justified. If Joe Biden wins the presidency and Democrats take the Senate, they should take action to reverse the structural rigging. Republicans and their captive media will paint these actions as extreme, but they are both justified and necessary:

  • Eliminate the Senate filibuster. With luck Democrats will have 51 votes. If it takes 60 to get anything done, nothing will get done.
  • Make states out of the District of Columbia and Puerto Rico. In addition to just being the right thing to do — taxation without representation is tyranny — this would help reverse the conservative rigging of the Senate and the Electoral College.
  • Pass voting rights laws. Gerrymandering and voter suppression can be outlawed by statute, even if the Court believes they are constitutional.
  • Add seats to the Supreme Court. The size of the Supreme Court is not in the Constitution and does not take a constitutional amendment to change. This will open a huge can of worms, but not doing it is the worse alternative.

The Republican Shenanigans in Wisconsin

How much are Republicans willing to disrupt democracy to maintain their power? We’re starting to find out.


This week, partisan majorities in the Wisconsin legislature, Wisconsin Supreme Court, and US Supreme Court combined their power to rig Tuesday’s election, with the goal of safeguarding the Republican majority on the Wisconsin Supreme Court against possible interference by the voters. The cost of this exercise of raw power was both the disenfranchisement of large numbers of Wisconsin citizens and an increase in the spread of Covid-19 in the state. As a result, both votes and lives will be lost.

Wisconsin’s pre-existing condition: an ailing democracy. Before we get into the details of how Tuesday played out, it’s worth noting that Wisconsin’s claim to have a democratic form of government was already shaky. Elections are still held, but the state has been gerrymandered to the point that large Republican majorities in both houses of the legislature are just about impervious to the will of the People. Republicans have power because they have power, not because the voters of Wisconsin want them.

2018 election results in Wisconsin.

The election of 2018 proved that point: Democrats won all the statewide offices, including the governorship. Together, Democratic candidates for the lower house of the legislature — where all the seats were up for election — got 200,000 more votes than Republicans. And yet Republicans won not just a majority of the seats, but close to a supermajority: 63 out of 99.

That advantage comes on top of the unfair advantage Republicans get from voter suppression. They lost among the people who managed to vote by 200K. If voting were easier, they probably would have lost by much more.

How do they get away with that? Well, one reason is that the Wisconsin Supreme Court doesn’t protect the right of Wisconsin voters to control their government, at least not when that government is Republican.

But Supreme Court justices are elected in Wisconsin, so if Wisconsinites want their democracy back, they can vote out the Republican judges who stand in their way. At least in theory. That theory was being tested Tuesday.

What the election was going to be about. Outside of Wisconsin, Tuesday’s election mainly had been getting attention as a presidential primary. Joe Biden held a substantial delegate lead, but Bernie Sanders was still running, and Sanders had beaten Hillary Clinton soundly in Wisconsin in 2016. The recent polls weren’t looking good for Sanders this time, but if he could pull off a result similar to his 2016 victory, things might yet get interesting.

Inside the state, though, the election was about judgeships, particularly a seat on the state’s highest court. Politico explains:

The high court has played a pivotal role in upholding major pieces of GOP legislation including Act 10 in 2011, which limited public employee collective bargaining rights. The court, which now has a 5-to-2 conservative majority, also shut down a long-running investigation into the campaign of former Governor Scott Walker for campaign finance violations, and upheld the GOP Legislature’s move to limit the powers of incoming Democratic Governor Tony Evers after his defeat of Walker. The court will also play a decisive role in the upcoming fight over redistricting as well as a host of hot-button social issues such as abortion and religious liberty.

Also at stake: “three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions”.

The judicial elections happening simultaneously with the primary seemed like a misfortune to Republicans, though, because (since Trump is running unopposed) more Democrats seemed likely to turn out than Republicans. If only there were some way to keep turnout down across the board …

The coronavirus election. Then coronavirus happened. Showing up to vote is a risky thing during an epidemic, especially if you have to wait in long lines with other people, some of whom are bound to be carrying the virus. Other states have recognized this problem and so a series of primaries have been postponed. In all 16 states have delayed their primaries.

Democratic Governor Tony Evers thought Wisconsin should do the same. He already had issued a stay-at-home order on March 24, and reasoned that it made little sense to tell people both to stay home and to go out and vote. On April 3 he called the legislature into special session to delay the primary. Evers wanted to convert the primary to a vote-by-mail format, and allow voters to return their ballots anytime until late May.

That, of course, would raise turnout, which is seen as a partisan issue in Wisconsin, and across the country. (If you want a lot of people to vote, you must be a Democrat.) But the gerrymandered Republican legislature could have proposed its own plan to postpone the primary, and Evers would have found himself under considerable pressure to go along with it.

Instead, the legislature came up with the best voter-suppression plan of all: Let’s make people risk their lives in order to vote! The leaders of both houses issued a joint statement: “Our Republic must continue to function.” The primary would go on as scheduled.

This looked like a trainwreck-in-the-making to Governor Evers, whose main job these days is to convince his citizens to stay home and not spread the virus. So the day before the primary — right after the legislature adjourned his special session without acting — he issued an order delaying the primary until June 9, noting the risk not just to the voters, but even moreso to the poll workers who “come into close proximity with dozens, if not hundreds, of voters”.

Wisconsin House Speaker Robin Vos and state Senate Majority Leader Scott Fitzgerald immediately challenged that order in the Wisconsin Supreme Court, which — surprise! — supported them 4-2. Vos and Fitzgerald rejoiced:

We continue to believe that citizens should be able to exercise their right to vote at the polls on Election Day, should they choose to do so … this election will proceed as planned.

What about voting absentee? OK, there’s an election. But that doesn’t mean you have to go to the polls to vote. The decision that the show must go on produced a predictable avalanche of absentee-ballot requests. Last year, when there was a spring election but not a presidential primary, 167,832 absentee ballots were requested. For the 2016 general election there were 595,914 requests. This year? 1,293,288. About 200,000 of those ballots were not returned in time to count, compared to just 30,000 in the 2016 general election.

The office that distributes absentee ballots wasn’t set up to deal with such a deluge of last-minute requests, so it soon became apparent that some number of legitimate Wisconsin voters wouldn’t get their ballots before election day.

A collection of (mostly Democratic) voters and groups sued to get an extension for absentee voters to return their ballots. A federal district court ruled in their favor, extending the deadline from election day to today, nearly a week later. The election commission was also enjoined from releasing results until then.

That ruling was overturned by the Supreme Court’s Republican* majority: Votes could continue to be counted until today, but they had to be postmarked by election day. That decision is unsigned. It mentions the problem that voters may not have received their ballots (which the lower court held was an unconstitutional burden on the right to vote), but then completely ignores it, comparing the situation to normal elections where people who request a ballot at the last minute may not have much time to fill it out and mail it. (It’s worth pointing out that the undelivered-ballot question is not just theoretical. “Three tubs of ballots for Oshkosh and Appleton have been discovered at a mail processing center in Milwaukee, according to the Wisconsin Elections Commission and a state senator.”)

Justice Ginsburg’s dissent asks a simple question:

If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?

The majority opinion doesn’t answer that question, because there is no answer.

Election day. The NYT’s Linda Greenhouse, in a column blasting the Supreme Court’s Republican majority, (and in particular skewering the majority’s use of the word “ordinarily”, as if anything about this situation were ordinary) summarized the election-day conditions.

Milwaukee voters are not ordinarily reduced to using only five polling places. Typically, 180 are open.

In a stunt that probably wasn’t as effective as he planned, Speaker Vos himself worked as an election inspector. Covered in protective equipment, he assured the public that “You are incredibly safe to go out.

Implications for future elections. In the back of everyone’s mind is the question: What if Covid-19 turns out to have a seasonal factor? It almost certainly won’t go away completely in the summer — it’s summer all year round in Florida, and they’ve had nearly 20,000 infections — but what if it diminishes, and then comes roaring back in the fall? Or what if we re-open the economy too quickly and get a fall resurgence that way?

In either case, it’s not impossible to imagine that the general election in November could take place under very similar conditions to the ones in Wisconsin on Tuesday. Wouldn’t it be nice to make a plan for that now, rather than go through last-minute drama and see large numbers of Americans disenfranchised?

You know who has a plan for that? Elizabeth Warren. Her plan calls for online voter registration, a vote-by-mail option, and at least 30 days of early voting. Radical stuff like that.

The problem with all those ideas, of course, is that they encourage people to vote. Or at least Republicans see that as a problem. They talk a lot about fraud, which is their usual excuse for voter suppression, but that’s not their real issue. (Washington state votes entirely by mail and has for years. Voting by mail is the standard thing for our overseas military. Fraud has not been a problem.) Their issue is that if you make voting easy, more people will vote. Marginal voters tend to vote Democratic, so it’s important to make voting as hard as possible.


* Typically, the media refers to the Court’s “conservative” majority, but that characterization has not been accurate for some while. More and more often, dating back to Bush v Gore, Citizens United, and John Roberts’ evisceration of the Voting Rights Act, the Court has been making decisions that can’t be explained by legal philosophy. The point is that Republicans should win, not that some theory of constitutional interpretation is better than another. So henceforth I’ll be refusing to play along with the ruse that their rulings have something to do with limited government or the Founders’ original intent.

Accelerating Corruption and Autocracy

Ever since he came down the escalator pledging to protect us from Mexican rapists, Donald Trump has shown corrupt and autocratic tendencies. Before long, he was leading chants about locking up his political opponents, welcoming Russian help in his campaign, encouraging his supporters to be violent, profiting off of campaign events, and saying that he would only accept the election results “if I win“.

Since taking office, he has funneled public money into his private businesses, continued building his wall without a Congressional appropriation, refused all demands for financial transparency and Congressional oversight, obstructed the Mueller investigation, assembled the most corrupt cabinet since Nixon, lied many times per day, and repeatedly expressed his envy of dictatorial regimes like North Korea and China.

But the authoritarian drift has definitely accelerated in the three weeks since every Senate Republican but Mitt Romney voted to let Donald Trump remain in office, despite proven abuses of power. As Atlantic’s Adam Serwer puts it, Trump’s acquittal marked “the end of the Trump administration, and the first day of the would-be Trump Regime.” Think about what we’ve seen since the Senate’s abdication of its constitutional role in controlling would-be autocrats.

A purge of “disloyal” officials. The disloyalty here is not to the United States, but to the person of Donald Trump.

Lt. Colonel Alexander Vindman, for example, has behaved exactly as an officer should: When something about Trump’s Ukraine call seemed odd to him, he reported his concerns up the chain of command. When Congress subpoenaed him, he appeared and testified honestly. For this, he was not just fired, but escorted out of the White House like a criminal. His twin brother, who played no role in the impeachment hearings, was also fired just out of vindictiveness. (Fortunately, the Army has refused Trump’s suggestion that Lt. Col. Vindman be investigated and disciplined.)

Other people who are now gone: Ambassador Bill Taylor, Ambassador Gordon Sondland, Ambassador Marie Yovanovich, Undersecretary of Defense John Rood, and Deputy National Security Adviser Victoria Coates. They join everyone in the FBI who had any connection to the original Russia investigation, most of whom were purged long ago: James Comey, Andrew McCabe, Peter Strzok, Bruce Ohr, and Lisa Page, as well as the Justice Department leadership that refused Trump’s pressure to shut the investigation down: Jeff Sessions and Rod Rosenstein.

The purge is expected to continue throughout the administration. (See below for purges at the Office of the Director of National Intelligence.)

Interference in the Stone trial. It’s important to understand what Roger Stone (along with Paul Manafort and Michael Flynn) represents: the last loose ends in the obstruction of the Mueller investigation. (One of the obstruction-of-justice claims explored in Part II of the Mueller Report was that Trump engaged in witness-tampering with Manafort, including hinting at a pardon.)

Stone was the Trump campaign’s link to WikiLeaks and from there to the Russians who hacked Democratic computers. Manafort was the campaign’s link to Russian oligarch Oleg Deripaska, and from there to Russian intelligence. Flynn’s relationship with Russian Ambassador Segei Kislyak (in particular why Flynn and Jared Kushner approached him about creating a “back channel” to Russia) has never been explained. These men are not just Trump’s “friends”, they’re his accomplices.

In the Stone case, Trump (through Bill Barr) reversed the prosecutors’ sentencing recommendation (causing all four prosecutors to withdraw from the case rather than participate in political corruption of the processes of justice), attacked the judge, and attacked a juror. He didn’t stop Judge Amy Berman from sentencing Stone to 40 months in prison, but he did set up his justification for a post-election pardon, along with pardons of Flynn and Manafort. This would send a clear message to anyone else who could testify against Trump: Keep your mouth shut and the boss will take care of you.

Notice what has been missing from Trump’s defense of Stone: acknowledgment of the fact that he’s guilty. Stone lied to Congress to protect Trump, and he threatened a witness who could expose that lie. A jury of his peers unanimously found that Stone’s guilt had been proved beyond a reasonable doubt.

Pardons for money. Corrupt Illinois Governor Rob Blagojevich got the attention, but the most obviously corrupt of Tuesday’s pardons was tax evader Paul Pogue, whose family has contributed over $200K to the Trump Victory Fund. Criminal financier Michael Milken was pardoned after a request from billionaire Nelson Peltz, a Milken business associate who had just hosted a Trump fundraiser that netted the campaign $10 million.

Pardons to maintain a corrupt network. Jeffrey Toobin pointed out the authoritarian flavor of the other Tuesday pardons:

Authoritarianism is usually associated with a punitive spirit—a leader who prosecutes and incarcerates his enemies. But there is another side to this leadership style. Authoritarians also dispense largesse, but they do it by their own whims, rather than pursuant to any system or legal rule. The point of authoritarianism is to concentrate power in the ruler, so the world knows that all actions, good and bad, harsh and generous, come from a single source. …

In this era of mass incarceration, many people deserve pardons and commutations, but this is not the way to go about it. All Trump has done is to prove that he can reward his friends and his friends’ friends.

Trump’s pardons did not percolate up through the Justice Department’s Pardon Attorney. They all had some personal connection to Trump or his circle of friends and donors. Blagojevich, for example, was a contestant on “Celebrity Apprentice”, and his wife pleaded for his pardon on Fox News shows Trump is known to watch. (It’s worth noting that there is no doubt about Blagojevich’s guilt. We have the tapes.) Bernard Kerik was a crony of Rudy Giuliani.

All the beneficiaries of Trump’s mercy were convicted of the kinds of white-collar crimes Trump’s people might commit themselves. That was the point, Sarah Chayes (who covered Afghanistan for more than a decade) explained in “This Is How Kleptocracies Work“:

In return for this torrent of cash and favors and subservience, those at the top of kleptocratic networks owe something precious downwards. They owe their subordinates impunity from legal repercussions. That is the other half of the bargain, without which the whole system collapses.

That’s why moves like Trump’s have to be advertised. … Trump’s clemency came not at the end of his time in office, as is sometimes the case with such favors bestowed on cronies and swindlers, but well before that—indeed, ahead of an election in which he is running. The gesture was not a guilty half-secret, but a promise. It was meant to show that the guarantee of impunity for choice members of America’s corrupt networks is an ongoing principle.

Threats to the rule of law. The Justice Department had retained some measure of independence until Bill Barr became attorney general. Trump’s first attorney general, Jeff Sessions, shared Trump’s policy goals, but respected internal procedures for maintaining the rule of law. For example, he recused himself from the Russia investigation because of his own connection to the Trump campaign — a move which angered Trump and for which Sessions was never forgiven.

But Barr has made a number of moves in the Justice Department to shield Trump from investigation and intimidate his enemies. The best summary I’ve found is by Marcy Wheeler:

  • The Stormy Daniels hush-money investigation sent Michael Cohen to prison, but all the follow-up evaporated after Barr took over at DoJ. Cohen claimed he worked under Trump’s instructions, and that the Trump Organization reimbursed his illegal campaign contribution. But those leads have been dropped.
  • SDNY seems to be slow-walking its investigation into Rudy Giuliani’s Ukraine shennanigans, now that a new US attorney has been appointed. The head of the neighboring Eastern District of New York has been put in charge of Ukraine-related investigations that SDNY had been pursuing.
  • A new US attorney in D.C. has led to a “review” of investigations there, including cases involving Michael Flynn and Erik Prince.
  • Barr assigned Connecticut US attorney John Durham to investigate the origins of the Trump/Russia investigation. Anyone tempted to investigate further Trump wrongdoing now knows that they risk becoming targets themselves.
  • Barr tried to stop the Ukraine whistleblower’s account from reaching Congress, and did not recuse himself even though he is mentioned in the complaint.

Tightening control of the intelligence services. Like the Justice Department, the intelligence services maintained their independence when Dan Coates was Director of National Intelligence, and the subsequent acting heads had failed to bring them under control.

As a result, occasionally conclusions unfavorable to Trump have made it to Congress or the American public: Russia did help elect Trump in 2016. North Korea is not denuclearizing. ISIS is not defeated. Trump may not like to hear such facts, or to allow the American public to know them, but the whole point of having intelligence services is to correct the leadership’s misperceptions.

The most recent example was a February 13 briefing to House leaders of both parties, in which Shelby Pierson, an aide to then-acting DNI Joseph Maguire, reported that Russia was repeating its 2016 interference in the 2020 election process, again for the purpose of electing Trump.

You might expect an American president to react to such news by giving Vladimir Putin a stern warning to back off — as Bernie Sanders did when told that the Russians might be working to help him win the Democratic nomination. But no: Trump welcomed Russian help in 2016, sought to extort Ukrainian help with the 2020 election, and seems to welcome further Russian help now.

The intelligence report did make him angry, but at the intelligence services. He dismissed Maguire and replaced him with Richard Grenell, who has no intelligence background whatsoever. In a Washington Post column, retired Admiral William McRaven lamented Maguire’s fate:

in this administration, good men and women don’t last long.

In a different article, the WaPo quotes a former director of the National Counterterrorism Center:

Nothing in Grenell’s background suggests that he has the skill set or the experience to be an effective leader of the intelligence community. … His chief attribute seems to be that President Trump views him as unfailingly loyal.

As Ambassador to Germany (a position he still holds), Grenell was noted for his identification with right-wing parties like Alternative for Germany. (US ambassadors typically avoid such partisan interference in the politics of our NATO allies.) The German news magazine Der Spiegel couldn’t get an interview with Grenell, so it interviewed more than 30 sources including “numerous American and German diplomats, cabinet members, lawmakers, high-ranking officials, lobbyists and think tank experts.”

Almost all of these sources paint an unflattering portrait of the ambassador, one remarkably similar to Donald Trump, the man who sent him to Berlin. A majority of them describe Grenell as a vain, narcissistic person who dishes out aggressively, but can barely handle criticism. … They also say Grenell knows little about Germany and Europe, that he ignores most of the dossiers his colleagues at the embassy write for him, and that his knowledge of the subject matter is superficial.

Oh, by the way, Grenell used to work for a corrupt Moldavian oligarch, but didn’t register as a foreign agent. Under any previous administration, he wouldn’t be able to get a security clearance.

Grenell in turn has ousted the #2 intelligence official, Andrew Hallman, replacing him with Devin Nunes staffer Kashyap Patel, who is known for promoting pro-Trump conspiracy theories. More personnel changes are expected.

The NYT reports that Grenell has “requested the intelligence behind the classified briefing last week before the House Intelligence Committee where officials told lawmakers that Russia was interfering in November’s presidential election and that President Vladimir V. Putin of Russia favored President Trump’s re-election”.

This move recalls how Vice President Cheney abused intelligence during the Bush administration: By “stovepiping” raw intelligence to his own office rather than letting it pass through the analytic process, Cheney was able to manipulate conclusions that favored the policies he preferred, most notably the invasion of Iraq.

Summing up. If you don’t follow US government closely, you may not see the problem. After all, the President is in charge. Why shouldn’t the people under him do what he wants? Isn’t that how it always works?

It isn’t, and there are good reasons why it doesn’t. One problem — you might fairly say it was THE problem — the Founders were trying to solve when they wrote the Constitution was how to control executive power. Unfettered executive power quickly becomes dictatorship, and the rights of the People are then only as safe as the Dictator allows them to be.

For that reason, power was divided among the three branches of government, so that Congress and the Courts would be able to hold the President in check. Congress got the power of the purse and the power of oversight, both of which are now in jeopardy.

Subsequent to the Founding, executive power has also been controlled through the professionalization of the various departments, each of which balances political control by the President with its own inherent mission. So the Justice Department takes its policy from the President, but pursues the departmental mission of justice. The intelligence services try to find truth, the EPA protects the environment, the CDC defends public health, the military safeguards our country and its allies, the Federal Reserve balances economic growth against the threat of inflation, and so on. For the most part, presidents have known when to keep their hands off.

Until Trump. More and more, Trump makes everything political. There is no truth other than the story Trump wants to tell. There is no mission other than what Trump wants done.

Students of authoritarianism have been warning us about his dangerous tendencies since he first began campaigning. But, as Rachel Maddow noted Friday night, we are well past the time for warnings. “The dark days are not ‘coming’,” she said. “The dark days are here.”

Let’s Talk Each Other Down

Looking around this week — in the media, among my friends, inside my own head — I observed that a lot of people are freaking out. Because Trump was acquitted, because he has started his revenge tour, because Republicans know he abused his power and don’t care, because the Democrats are doing it all wrong, because a virus is spreading out of control, because the State of the Union was full of lies, because both the National Prayer Breakfast and the Medal of Freedom have been desecrated, because a US senator willfully and illegally endangered the life of a whistleblower, because it’s been 65 degrees in Antarctica, because the Attorney General has given Trump carte blanche to violate campaign laws, because a billion-dollar disinformation project has begun, and because, because, because.

There’s been no lack of stuff to freak out about, if that’s what you feel inclined to do. You’re not wrong. I can’t tell you that all those horrors aren’t happening. But let me try to talk you down in a different way.

In general, people freak out for a very simple reason: They’ve been telling themselves “It’s all going to be OK” when they don’t really know that. When events start to crack that false sense of certainty, one natural reaction is to flip over completely to: “We’re all doomed.”

Allow me to point something out: You don’t really know that either.

So if you come to me hoping I’ll tell you it’s all going to be OK — sorry, I can’t do that. But I can tell you this: Uncertainty is the natural state of human beings. Maybe we’re doomed, but maybe things will be OK — or something in between, more likely. That’s how life is and always has been. It might be true that the arc of the Universe bends towards Justice, but you can never count on that bend being visible in any given lifetime. If you’ve comfortably lived in denial of that reality until this week, I’m sorry you had to find out like this. It’s not really my fault, but never mind: Accept my apology anyway, because probably nobody else will offer one.

You know something that’s even worse? You might be in this state of uncertainty for the rest of your life. Maybe we’re doomed, but maybe we’re not. Nobody really knows. Democracy in America might soon be over, or it might get a reprieve. Truth might finally drown in a sea of disinformation, or maybe it will figure out how to swim in that sea. People are endlessly surprising. Just when you think they’re hopeless, they do something hopeful. And vice versa.

So: Breathe. Breathe again, to make sure that one wasn’t just luck. Keep breathing. You can do this, at least for now.

And try to accept something: You don’t need to know that it’s going to be OK.

You can do something to make things better without being sure it’s going to work. Because … well, what else are you going to do? (I don’t know if you’ve ever tried giving up, but I can tell you a little about that too: It’s no fun either. Sometimes when you get worn down, you might think that waiting helplessly for inevitable destruction would be an nice relief. But trust me. It isn’t.)

Affirmations can be useful in a situation like this, but only if you choose to affirm things that are at least vaguely believable. Try this one: I don’t know that things are going to be OK, but I don’t need to know. I can try to do good things anyway.

Now say it out loud. “I don’t know that things are going to be OK, but I don’t need to know. I can try to do good things anyway.”

Maybe one or two of the things you’ve been trying to do really are doomed, and maybe that’s finally become obvious to you. You can shift your effort to something else. There’s no lack of things to do that still might be useful.

Because you don’t know what’s going to happen. We all like to think that we do, but we don’t.

Now let me tell you something about the particular challenge we’re facing now: Trump. At his core, Trump is a bluffer. He puffs himself up to make people think he’s bigger and richer and stronger than he really is. It’s the only trick he knows, but sometimes it works: He scares people into giving up or going along. (That’s what we just saw happen in the Senate. You don’t really believe that all those Republicans thought keeping him in office was good for the country, do you? Or even good for their party, or for themselves? They got scared, so they went along.)

When something like that works for him, he uses it to puff himself up further and scare more people. That’s what’s been going on this week.

Don’t help him.

Don’t run around scaring other people about how big and powerful he is. When a bluffer gets on a roll, you can never predict how far it will go. But we do know one thing about bluffers: When their empires start to collapse, they collapse quickly, because each failure causes more people to think “I don’t have to be scared of this guy.”

You can never predict exactly when that process is going to start. The balloon always looks biggest just before it pops.

Steve Almond put it like this:

We must organize rather than agonize.

This optimism should not be confused with naiveté. We all know that the Trump regime will do everything in its power to rig the 2020 election. We’ll see more voter suppression, more fearmongering, more Russian trolling.

Nihilism remains the GOP’s ultimate Trump card. They are counting on citizens of good faith to give up, to quit the field, to say “who cares?” So is the party’s most reliable ally, Vladimir Putin. And so are the oligarchs, domestic and foreign, who have converted our planet into a vast and decaying casino.

Don’t let them sucker you.

Be a fanatical optimist. Make a plan. Take action. Listen to your conscience. Vote.

A brighter dawn might await all of us, but we have to work for it.

I’ll quibble with him using the word optimism rather than hope. (I’ve written about that elsewhere.) But the key word there is might. If you’re waiting for a guarantee, for a political almanac that will tell you exactly when the sun will rise and the tide will turn, you’ll keep waiting and you’ll do nothing. Don’t go that way.

Be hopeful. Throw your effort out there and see what happens. Because you never know.

Remember Normal Presidents?

Every previous president since Pearl Harbor would have handled the Soleimani announcement very differently.


It’s now been ten days since the United States assassinated top Iranian General Qasem Soleimani near the Baghdad airport, and we still have no coherent explanation of why it was done, why it was legal, and what strategy the assassination is a piece of. Apparently even Congress hasn’t been able to get these questions answered in a classified briefing.

One of the ways Trump gets normalized is that we often compare his actions to his own previous conduct, as in “This is even worse than the last ridiculous thing he did.” As a result, our expectations of presidential behavior drift continually downward. I mean, sure, the claims of an “imminent” threat to American lives, some deadly Iranian scheme that came apart because we killed Soleimani, are almost certainly false. (Once a plot is under way, i.e., truly “imminent”, you disrupt it by stopping the perpetrators, not blowing up the mastermind. Killing Bin Laden after the hijackers were on their way to the airport would have done nothing to prevent 9/11.) But Trump’s like that — what’s one more lie after the many thousands we’ve already heard from him?

Another way we normalize Trump is to cut his actions into tiny pieces and find horrifying precedents for each one. (As in: “So Trump lied about the imminent threat? W lied about WMDs.”) And so we allow the Trump administration to become a Frankenstein monster, stitched together from all the worst aspects of previous presidencies.

To correct these normalizing tendencies, I want to raise the question: What do we normally expect from an American president when there’s been a major military development?

Talk to us. The very least we expect from a normal president is that he address the American people, to acknowledge what has happened himself, as soon as possible.

This tradition is as old as mass media. The day after the Pearl Harbor attack, President Franklin Roosevelt addressed a joint session of Congress, calling December 7 “a date that will live in infamy” and asking the House and Senate to declare war on Japan. The speech was broadcast live over the radio, and “attracted the largest audience in US radio history, with over 81% of American homes tuning in”.

[The speech] was intended not merely as a personal response by the President, but as a statement on behalf of the entire American people in the face of a great collective trauma. In proclaiming the indelibility of the attack, and expressing outrage at its “dastardly” nature, the speech worked to crystallize and channel the response of the nation into a collective response and resolve.

Every subsequent president has carried on this tradition of using the mass media to reach out to the American people when issues of war and peace arose. This week I examined a number of such examples, including these:

How a normal president sounds. I could have included many other examples, but the list above is a good sampling. Some the actions announced turned out well and some turned out badly. (It’s probably unfair to expect him to have foreseen this, but Nixon’s Cambodia campaign was a step down the road to the killing fields.) Some of the speeches were more honest than others. (The Gulf of Tonkin incident, for example, was not quite how LBJ described it.) But despite the differences in era and philosophy and personality, all these speeches share a number of features that made them “presidential”.

The most obvious thing they share is a tone: They are all calm but serious. The President, whoever he might have been at the time, projects an attitude of thoughtful determination, as if he were saying “I know there will be consequences to this act, but I have thought them out to the best of my ability. I am not acting rashly out of unreasoning fear or blind anger.”

They are also in some manner humble. This might seem like a strange trait for a leader to display when he is invoking the greatest power his office affords him, but American presidents do not hold their power as a personal possession, the way a divine-right king would. Presidential power is held in trust for the American people. No one is worthy of the power to start bombing some other country or to send troops into harm’s way, but our country has to place that power somewhere. So we have placed it in our president, under supervision from the Congress, who is just a human being like the rest of us. Any human who assumes that power is quite right to be awed by it.

The speeches are not self-aggrandizing, which is the opposite of humble. FDR, for example, could have used the opportunity to pat himself on the back: He had shown the foresight to begin a draft a little over a year before. His Lend-Lease program had armed countries that would now be our allies, and had developed a weapons industry we would now be relying on. But he mentioned none of that.

Unity. Every one of the speeches is an attempt to unify Americans behind the action being announced and the policy it represents. Consequently, they all strive to be non-partisan. Again, look at FDR: He could have reminded the country that Republican congressmen voted against Roosevelt’s Lend-Lease Act 24-135, a decision that now looked short-sighted. That might have scored points with the voters and helped Democrats unseat those Republicans. But he made no mention of parties: The nation had been attacked, and he called for the nation — not just his party — to respond.

That model has stood until the present administration. Frequently in the speeches above, the president quotes or refers to some past member of the other party to demonstrate the bipartisan nature of the policy he is carrying out. Ronald Reagan quoted former Democratic Speaker Sam Rayburn. Nixon referenced a bipartisan list of presidents:

In this room, Woodrow Wilson made the great decisions which led to victory in World War I. Franklin Roosevelt made the decisions which led to our victory in World War II. Dwight D. Eisenhower made decisions which ended the war in Korea and avoided war in the Middle East. John F. Kennedy, in his finest hour, made the great decision which removed Soviet nuclear missiles from Cuba and the western hemisphere.

Johnson’s speech is especially noteworthy in this regard, because it took place in August, 1964, just three months before the election. The idea that Barry Goldwater was a hothead not to be trusted with nuclear weapons would soon become a theme of Johnson’s reelection campaign, but nothing in the Gulf of Tonkin speech hints at that. Quite the opposite:

I have today met with the leaders of both parties in the Congress of the United States, and I have informed them that I shall immediately request the Congress to pass a resolution making it clear that our government is united in its determination to take all necessary measures in support of freedom and in defense of peace in Southeast Asia. I have been given encouraging assurance by these leaders of both parties that such a resolution will be promptly introduced, freely and expeditiously debated, and passed with overwhelming support. And just a few minutes ago, I was able to reach Senator Goldwater, and I am glad to say that he has expressed his support of the statement that I am making to you tonight.

In none of the speeches does the president snipe at his predecessors, blame them for the current predicament, or gloat over the way things have turned out. No president ever had a better opportunity to throw shade at the previous president than Barack Obama, who had succeeded at something George W. Bush had failed to do for seven years: kill Bin Laden. But Obama passed up that opportunity to boost himself by tearing down his predecessor. Instead, he acknowledged the “tireless and heroic work of our military and our counterterrorism professionals” over the previous ten years. He closed by asking Americans to

think back to the sense of unity that prevailed on 9/11. I know that it has, at times, frayed. Yet today’s achievement is a testament to the greatness of our country and the determination of the American people. … Let us remember that we can do these things not just because of wealth or power, but because of who we are: one nation, under God, indivisible, with liberty and justice for all.

What is presidential? The presidential speeches seek to evoke three kinds of unity: Unity as Americans facing an external challenge, unity of vision between the president and Congress, and unity of the United States with its allies. The speeches are not always entirely truthful — among his other roles, the president is the country’s chief propagandist — but the untruths are aimed at the enemy, not at other Americans. The president takes a generous, hopeful view of how Congress, our allies, and the nation as a whole will respond. The vision is consistently about what we can do together, not what the president as an individual is doing for us or against our opposition. He seeks to paper over any past differences, in hopes of moving forward as a united nation.

Now look at Trump. The day after the Soleimani assassination, Trump made a public statement, but not a particularly formal one. He addressed reporters at Mar-a-Lago, not the nation from the White House. (The text begins “Hello everybody”, not “My fellow Americans”.) The brief announcement does not mention Congress or our allies, but has an unusual number of first-person references: “at my direction … under my leadership … I am ready and prepared to take whatever action is necessary”, leading up to Trump’s list of accomplishments:

Under my leadership, we have destroyed the ISIS territorial caliphate, and recently, American Special Operations Forces killed the terrorist leader known as al-Baghdadi. The world is a safer place without these monsters.

Trump also took a slap at previous administrations:

What the United States did yesterday should have been done long ago. A lot of lives would have been saved.

The message asks for nothing — not from the public, not from Congress, not from our allies. Trump simply reports what he has done for reasons that are not entirely clear. (It can’t be that we have a right to know.) He does not warn us of hardships to come, or of possible Iranian reprisals. He warns Iran, though of what “I” will do.

The United States has the best military by far, anywhere in the world. We have best intelligence in the world. If Americans anywhere are threatened, we have all of those targets already fully identified, and I am ready and prepared to take whatever action is necessary. And that, in particular, refers to Iran.

After Iran’s response — a missile attack on the Iraqi base from which the Soleimani mission was launched — Trump finally gave a more formal speech from the White House. He begins, not with a salutation to the audience or even with a statement of the policy of the United States, but with a pledge from Trump the Individual:

As long as I am President of the United States, Iran will never be allowed to have a nuclear weapon.

He does not say how he will prevent that from happening, given that he tore up the agreement that had been blocking Iran’s nuclear program. He goes on to ramble fairly incoherently about the evils of Iran. Again he does not mention Congress, and while he does mention both NATO and the partner countries in the Iran nuclear deal, it is not at all clear what he wants them to do, other than “recognize reality”.

Again, he exaggerates his “accompliments”:

Over the last three years, under my leadership, our economy is stronger than ever before and America has achieved energy independence.  These historic accompliments [accomplishments] changed our strategic priorities.  These are accomplishments that nobody thought were possible.  And options in the Middle East became available.  We are now the number-one producer of oil and natural gas anywhere in the world.  We are independent, and we do not need Middle East oil.

The American military has been completely rebuilt under my administration, at a cost of $2.5 trillion. … Three months ago, after destroying 100 percent of ISIS and its territorial caliphate, we killed the savage leader of ISIS, al-Baghdadi. … Tens of thousands of ISIS fighters have been killed or captured during my administration.

But the most unpresidential thing of all in this speech is the way that he goes after his predecessor, in some cases distorting the truth to do so, and in other cases just simply lying. Under Obama’s Iran deal, “they were given $150 billion”. [False. A much smaller sum of Iran’s own money was unfrozen. Iran was “given” nothing.] “The missiles fired last night at us and our allies were paid for with the funds made available by the last administration.” [Theoretically possible, but Trump provides no evidence. He appears to have just made this up.] “The very defective JCPOA expires shortly anyway, and gives Iran a clear and quick path to nuclear breakout.” I’ll let PolitiFact handle that one:

This is False.

The Iran deal put a cap on enriched uranium that would have lasted until 2030, at which point other agreements would have continued to limit Iran’s nuclear development.

Some of the deal’s restrictions would have eased beginning in 2025, but the key elements that prevented Iran from enriching the levels of uranium needed to make a bomb would have remained in effect until 2030.

Other terms would have lasted forever, including the prohibition on manufacturing a nuclear weapon and a provision requiring compliance with oversight from international inspectors.

Think about what these statements do, relative to what we would expect from any previous president. They feed a cult of personality around Trump. He is not the current avatar of the President of the United States, he is himself, accomplishing things that his predecessors at best played no role in, and more often provided obstacles he had to overcome. He wields power as a personal possession, not in trust from the American people or overseen by Congress. America’s allies are not equals, they are vassal states that he need not consult, but can make demands on.

He makes no appeal for unity, and does not reach out to the opposition party. Instead, he uses the attention provided by the current crisis to claim his predecessor’s accomplishments (we became the top oil producer under Obama), and to spread lies about him. Democrats should feel slapped in the face by this, not invited into an American unity.

In addition to the televised addresses, Trump has access to media FDR never imagined. His Twitter feed has been non-stop partisan, in the most vicious way. Just this morning, for example, he retweeted an image of Chuck Schumer and Nancy Pelosi in Muslim dress, with an Iranian flag behind them. In his own words, he told this lie:

The Democrats and the Fake News are trying to make terrorist Soleimani into a wonderful guy

Nothing he says speaks to Democrats in Congress, or to the 54% of the American people who voted for someone else in 2016, or the 53.4% who voted for Democratic candidates for Congress in 2018. He is leading us down a path that may well end up in war, without seeking approval from Congress or even trying to make a case to anyone other than the minority of the country that supports him.

No previous president would do such a thing.

The Decade of Democracy’s Decline

When a decade ends, it’s always tempting to look back and come up with a single defining theme. Often that exercise winds up being artificial and its conclusion a bit forced. But as we approach the end of 2019 the theme seems clear: The story of the Teens was the decline of democracy.

2010 in the United States. On New Year’s Day in 2010, we were living in a very different world. Barack Obama had been elected in a landslide in 2008, bringing huge Democratic majorities to both houses. The first major sign of a rightward pendulum swing — Scott Brown’s surprise victory in the race for the Senate vacancy caused by Ted Kennedy’s death — would happen soon (January 19), but the extent of November’s Democratic wipe-out was not at all apparent yet.

Brown’s victory ruined the filibuster-proof Senate majority that the Democrats had maintained for a few months (since Al Franken had finally been seated in July), but Nancy Pelosi maneuvered her House majority and the reconciliation rules to get ObamaCare passed anyway by the end of March.

The economic disaster of 2008 was finally starting to resolve. When Obama took office, the economy had been hemorrhaging jobs, bankruptcies were starting to cascade, and the possibility of a Great-Depression-style collapse had seemed possible for the first time in almost 80 years. (One sign of the looming apocalypse: In September of 2008, a major money-market fund “broke the buck” and stopped redeeming its shares at $1.) The balanced-budget rules most states lived under had been forcing them to make the problem worse: As revenues fell, they had to stop construction projects, cut safety-net programs, and lay off teachers.

But by 2010, a variety of government interventions had begun to stabilize the situation: TARP and a loose Federal Reserve policy had stopped the banking collapse; a federal bailout saved the US auto industry; Obama’s $800-billion stimulus program had cut taxes, shored up state government finances, and started restoring the country’s infrastructure. Unemployment was still high and many people were still suffering, but the feeling that the bottom was about to fall out of everything had passed. A slow-but-steady economic expansion began, and has continued for the rest of the decade.

As the Republican revival took the form of the Tea Party, it was possible to believe in that movement’s grass-roots sincerity, despite the billionaire Koch money behind it. Perhaps large numbers of people really were alarmed by the rapidly growing federal debt, and by the government’s role in the economy, which the bailouts had at least temporarily increased. (By now, of course, we know that concern about the debt was entirely bogus. Trump’s looming trillion-dollar deficits disturb none of the people who angsted about Obama’s.)

Despite the Tea Party, though, the Republican establishment seemed firmly in control of the GOP’s direction. The Reagan policy configuration was unchanged: strong defense, a forceful American presence in the world, free trade, low taxes, low regulation, traditional sexual mores, and an immigration policy that accommodated business’ need for cheap labor.

But more than that, Republicans still participated in a national consensus on democracy so widespread it could mostly go unstated: The two major parties competed to persuade a majority of the American electorate, and whichever party succeeded in getting the majority of votes would, of course, control the government. Despite Republicans’ knowledge that they did better in low-turnout elections, and their occasional efforts to make voting harder for poor and non-white citizens, at least in public they had to acknowledge that voting was a good thing, something the public should be encouraged to do.

As the party of the rich, Republicans had always found it easier to raise large sums of money than Democrats. But controlling money in politics was still at least partly a bipartisan issue, exemplified by the McCain-Feingold law of 2002. As a practical matter, Republicans were more likely to oppose campaign-finance rules than Democrats; but open defenses of plutocracy were rare.

For the most part, Republicans were still part of a nationwide consensus on fair play. This was best exemplified by a moment in John McCain’s 2008 campaign, in which a woman questioning McCain said Barack Obama was “an Arab”, and seemed ready to go further if McCain hadn’t taken the microphone away from her.

I have to tell you. Sen. Obama is a decent person and a person you don’t have to be scared of as president of the United States.

Violations could be found on both sides, of course, but the general consensus (at least in public) was that candidates should not smear each other in ways that would make it hard for the winner to govern.

A number of rules of fair play held in Congress as well. The Constitution gave the Senate the power to “advise and consent” on presidential appointments, but both parties exercised this power with some restraint. For the most part, the president was allowed to get his way unless there was something egregiously wrong about a particular nominee.

There had been a few rumblings in the other direction. On democracy, Tom DeLay’s 2003 Texas redistricting plan intended to net more Republican seats in Congress just by shifting boundary lines, without the need to persuade any voters. As for fair play, McCain’s VP choice, Sarah Palin, had no qualms about blowing racist dog whistles in Obama’s direction, or accusing him of “pallin’ around with terrorists“. But these seemed to be excesses rather than signs of the future.

2010 around the world. Internationally, Europe was having a harder time recovering from the Great Recession than the US, and the biggest threat to the unity of the EU was that struggling economies like Greece might need to escape EU austerity rules and the discipline of the euro. The Syrian Civil War, with its consequent Syrian refugee problem, hadn’t started yet. (The entire Arab Spring, with it’s brief promise of democracy, had not yet bloomed and died.) Anti-immigrant and anti-Muslim sentiment existed in Europe, but was nothing like the continent-wide issue it later became. Far-right parties in France and Germany had yet to take off, and Brexit was a notion from the lunatic fringe of British politics.

But the biggest difference was in eastern Europe. It was already clear by 2010 (to those who were paying attention) that Vladimir Putin was an autocrat running a government-shaped crime syndicate. But no one yet appreciated the threat he posed outside Russia, or foresaw that his democracy-to-autocracy model would be imitated in Hungary, Poland, Turkey, India, Brazil, and even the United States. (My best description of that strategy is probably the one in the review of Timothy Snyder’s The Road to Unfreedom, or possibly Levitsky and Ziblatt’s How Democracies Die.)

I would argue that Putin has been the single most influential figure of the 2010s. Russia in 2010 was (and still is) a relatively minor economy dependent on an industry with little long-term future (oil). And yet, look at all he accomplished: His ruthless intervention in Syria pushed millions of immigrants towards Europe, where his simultaneous information-warfare campaign inflamed anti-immigrant feelings and boosted nationalist populist movements across the EU. His thumb-on-the-scale was arguably the difference in both the Brexit referendum and the Trump election. At the end of the decade, a foreign-policy goal of every Russia leader since Stalin might finally be in sight: the dissolution of NATO.

In 2010, it was even possible to believe that China would eventually find its way to democracy. The theory went like this: Sooner or later, the rising Chinese middle class would seek a voice in government. But while Chinese prosperity grew through the Teens, if anything China moved the other way politically. Power has increasingly become centered in President-for-Life Xi.

The Republican embrace of minority rule. In Conservative Parties and the Birth of Democracy (reviewed here), Daniel Ziblatt examined different European nations’ paths toward democracy and found a key difference: It mattered how the old ruling class felt about yielding its power to democratic institutions. Britain developed a viable conservative party that (through its alliance with the Church of England and its traditional morals), saw a way to continue to compete for power in a democratic system. But Germany’s upper classes never stopped seeing democracy as a threat, and were constantly tempted to seize power in non-democratic ways, eventually producing Hitler rather than Churchill.

The big story of the Teens in the US was the loss of a conservative party committed to democracy. The Republican Party has increasingly found itself at odds with democracy, and instead has openly embraced minority rule. In the Trump Era, Republicans no longer even attempt to attract majority support: 46% was enough to produce an electoral college win in 2016, and Trump has spent the last three years talking almost exclusively to that 46%.

In fact, it’s worth looking at all three elected branches of government. In the 2016 presidential election, Trump got 62,984,828 votes (46.1%) while Hillary Clinton got 65,853,514 (48.2%). In the 2018 elections for the House, Republican candidates got 50,861,970 votes (44.8%) and Democrats 60,572,245 (53.4%).

Computing the Senate popular vote is a little more complicated, because it takes six years for all the seats to come up, so you have to total across three elections. In 2014, Republican candidates got 24,631,488 votes (51.7%) and Democrats 20,875,493 votes (43.8%). In 2016 it was Republicans 40,402,790 (42.4%), Democrats 51,496,682 (53.8%). In 2018, Republicans got 34,723,013 (38.8%) and Democrats 52,260,651 (58.4%).

That works out to a total of 99,575,291 Republican votes and 124,632,826 Democratic votes. (The totals are roughly double the House totals because each state elects two senators.) That 25 million vote margin for the Democrats (roughly 55%-45%) has produced a 53-47 Republican majority.

Think about what that means: The American people voted for Democrats to control the presidency and both houses of Congress, but in fact they only succeeded in giving Democrats control of the House.

The retreat from fair play. So far we’ve just talked about anti-democratic elements inherent in our government’s constitutional structure. But during the Teens, Republicans used that minority power to entrench minority rule further.

The 2010 census was the beginning of a redistricting wave that has gerrymandered both federal and state districts to lock in Republican majorities. On the federal level, the Democratic wave of 2018 (53.4%) was considerably larger than the Republican wave of 2010 (51.7%), but produced a smaller majority (235 seats in 2018 vs 242 in 2010).

But it is on the state level where democracy has truly vanished. I could pick several states as examples, but probably the clearest is Wisconsin, where gerrymandering has locked in a large Republican majority in the legislature that the Democratic majority in the electorate is unable to oust.

Despite Democrats winning every statewide office on the ballot and receiving 200,000 more total votes, Republicans lost just one seat in Wisconsin’s lower house this cycle. And that victory was by a razor-thin 153 votes. Democrats netted 1.3 million votes for Assembly, 54 percent statewide. Even so, [Assembly Speaker] Vos will return to the Capitol in 2019 with Republicans holding 63 of 99 seats in the Assembly, a nearly two-thirds majority.

Republicans in Wisconsin: Losing the vote, but holding the legislature.

Far from being embarrassed by their minority support in the electorate or cowed by the mandate voters gave the new Democratic governor, the Wisconsin Republican majority in the legislature responded to the voters’ rebuke by passing laws to cut the new governor’s powers.

And those totals are after considerable efforts to suppress the vote of blocs likely to support Democrats. The one-two punch of minority rule is

  • Make it hard for Democratic blocs to vote.
  • Herd them into a small number of districts so that even a majority of Democratic votes can’t oust Republican majorities in the legislature.

This works because of minority rule on the federal level: A minority president and a minority Senate get to stack the judiciary with judges who are fine with tactics that entrench minority rule even deeper. That’s how we wound up with a conservative Supreme Court that has refused to block voter suppression and gerrymandering, and has opened the door to unlimited money in political campaigns — including unlimited money to influence Senate approval of judges. So the initial anti-democratic tilt built into the Constitution has been amplified.

You might think this reliance on a minority would be an embarrassing secret for Republicans, but in fact it is not. More and more openly, they defend the notion that the majority should not control the government.

For example, the Electoral College used to be seen as a historical relic that wasn’t worth the trouble it would take to get rid of it. But now it is actively defended by conservative publications like National Review and politicians like Senator Mike Lee. The fundamental unfairness of the Senate is cast as the great wisdom of the Founders, who apparently foresaw that Californians wouldn’t deserve to have their votes count for as much as Alaskans.

Gerrymandering and voter suppression aren’t shameful any more, they’re just how the game is played. And unlimited money is “free speech”. Even violence is no longer beyond the pale: Trump has repeatedly warned of violence if his followers don’t get what they want, and Trump supporters like Robert Jeffress even talk about “civil war“.

The drift towards autocracy. Most worrisome of all, in my opinion, is Republicans’ increasing tolerance of and support for autocratic words and actions from their leader. I can find no parallel in American history for how Trump has handled Congress’ refusal to fund his wall: He declared a phony emergency and seized money appropriated for other purposes. Even a congressional resolution to cancel the emergency was unavailing: Trump vetoed it, and held enough support in Congress to block a veto override.

So the precedent is established: As long as a president’s allies control 1/3 of one house, he can ignore the power of the purse that the Constitution gives Congress.

Republicans in Congress have also refused to protect Congress’ oversight power. Since Democrats gained control of the House, the administration has blocked all attempts to investigate his administration.

Nazi comparisons should always be handled with care, but this one seems appropriate to me: It’s a mistake to brush off what Trump clearly says he wants to do, as Germans brushed off the more outrageous sections of Mein Kampf. What Trump tells us every day in his tweets and at his rallies is that people who oppose him should be punished. Hillary should be in jail; Adam Schiff should be handled the way they do in Guatemala; Rep. Omar should be sent back where she came from; the whistleblower and his sources are “spies” who should be subject to the death penalty.

Already, everyone responsible for launching the investigation into Trump’s ties with Russia has been hounded out of the Justice Department. Amazon has been denied a large Pentagon contract because Jeff Bezos’ Washington Post is critical of Trump.

It’s a mistake to write this off as “Trump being Trump”. If he acquires the power to inflict more punishment, as he well might if Congress fails to impeach him and the Electoral College re-elects him (once again against the will of the voters), more punishments will happen.

Trends are not fate. George Orwell once wrote: “Whoever is winning at the moment will always seem to be invincible.” So it is a mistake to despair. Trends often reverse right at the moment when they seem most unstoppable, and often the reversal is only apparent in hindsight. But it is also foolish not to notice the trend, which for the last ten years has run counter to democracy, particularly in the United States.

Chief Justice Roberts OKs Minority Rule

If you’re a Republican, the demographic trends look bleak: Each cycle, your party’s core voters (white Evangelicals) become a smaller portion of the overall electorate. Worse, your positions on social issues (like gay rights) are turning off young voters, even if they’re straight and white, and your leaders target the fastest growing demographic (Hispanics) with vitriol almost every day.

You could try to change all that by shifting your positions. That’s what an RNC report recommended after Mitt Romney’s 2012 loss. But the party decided to go another way: Figure out ways to stay in power with fewer votes.

Minority rule. In certain ways, the US system already favors a Republican minority: Small red states like Wyoming or the Dakotas have just as many senators as liberal California, and the Electoral College tilts towards small states. But that natural advantage can be expanded: Voter suppression in Georgia allowed Republicans to keep the governorship there. And, of course, unlimited campaign spending helps Republican candidates win elections they otherwise might not.

But the real pillar of minority rule is gerrymandering. If you draw the districts properly, you can remain in power even if most voters are against you. And if you’re in a state where you have a small majority of voters, you can get a supermajority of seats in the legislature, allowing you to twist the system to your advantage in all sorts of ways.

Take Virginia for example. In 2017, Democrats overwhelmingly won the popular vote in House of Delegate elections, 53%-44%. All the seats were up for election, so you’d think they’d get control, wouldn’t you?

Such a quaint notion! In fact, Virginia delegate districts are gerrymandered all to hell, with the result that Republicans stayed in power: 51 seats to the Democrats’ 49. Apparently, Democrats would have to win by at least double digits to break the Republican dominance.

Same thing in Michigan. In the 2018 elections for the Michigan House, Democrats won the popular vote 52%-47%, but Republicans kept a six-seat majority, 58-52.

On the other hand, you have North Carolina. In 2016, Republicans won the popular vote in the NC House elections, 52%-47%, similar to the Democrats’ Michigan margin in 2018. But with a different result: Republicans got an overwhelming 74-46 majority of the seats. The Republican legislative supermajority was what allowed it to change the rules when a Democrat won the governorship. Maybe the voters still can give statewide offices to Democrats, but gerrymandering lets the legislature strip power away from those offices once Democrats win them.

That’s the essence of gerrymandering today: You don’t really need a majority of voters to keep power, and even a small majority will give you a constitution-amending supermajority, along with the ability to override the vetoes of any governor that the voters manage to elect over your opposition.

Best of all, it’s self-reinforcing: If the other party can’t break your hold on the legislature, then you get to improve your gerrymander every time there’s a new census!

The minority-rule Supreme Court. The Republican minority-rule majority in the Senate allowed Mitch McConnell to block President Obama’s last nominee to the Supreme Court, and to hold the seat open until President Trump (elected with only 46% of the vote) could fill it, as well as name a second justice after Anthony Kennedy retired. So the Court has a 5-4 conservative majority rather than the 6-3 liberal majority it would have if American voters had actually gotten their way.

So when a gerrymandering case came to the Court this term, it gave the five conservative judges a moral challenge: Defend democracy, or defend the partisan minority that appointed you?

None of them rose to that challenge.

The case. Ostensibly, the case was non-partisan, because it paired a Republican gerrymander in North Carolina with a Democratic gerrymander in Maryland. Both concerned districts for the federal House of Representatives.

But in the larger context the case was very partisan, because nationwide, the Republican Party has embraced gerrymandering whole-heartedly, while Democrats have hung back. When Democrats took over the House of Representatives in January, the first thing it passed was H.R. 1, which banned gerrymandering of congressional districts. (It’s not clear whether Congress has any power over gerrymandering of state elections.) But of course, that bill has never come up for a vote in Mitch McConnell’s minority-rule Senate.

John Roberts’ opinion. There was never any doubt that Justices Thomas, Alito, Gorsuch, and Kavanaugh would take a partisan Republican position. The question mark was Chief Justice Roberts, who ended up writing the majority opinion.

The gist of his opinion is that while of course he personally finds partisan gerrymandering to be a despicable practice, he can only wring his hands, because the law does not allow him to do anything to stop it.

Chief Justice Marshall famously wrote that it is “the province and duty of the judicial department to say what the law is.” Sometimes, however, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” In such a case the claim is said to present a “political question” and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. Among the political question cases the Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” …

We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.

The picture he paints is that if the Court interfered at all, then it would be forced to come up with its own answers to questions that ought to be decided by the political branches of government: How should districts be designed? What does it mean for an election to have a “fair” outcome? And so on.

He points out that gerrymandering happened in the era of the Founders, and that their solution to it was to balance state legislatures’ decisions against the check of the federal Congress, not the courts. He points out all the ways that political forces inside the states might defeat gerrymandering without court intervention:

Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines.

Kagan’s dissent. Justice Elena Kagan acknowledges Roberts’ points, and gives a “close, but no cigar” response to each.

Yes, the Founders knew about gerrymandering, the same way that they knew about firearms. (My analogy, not hers.) But the modern version is a different animal entirely.

Yes, partisan gerrymandering goes back to the Republic’s earliest days. (As does vociferous opposition to it.) But big data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today’s gerrymandering altogether different from the crude linedrawing of the past. Old-time efforts, based on little more than guesses,sometimes led to so-called dummymanders—gerrymanders that went spectacularly wrong. Not likely in today’s world.

And the thing Roberts said was impossible — judging that the gerrymanders in question were unacceptable without imposing your own vision of fair design and fair outcomes — was exactly what the lower courts had done.

The approach—which also has recently been used in Michigan and Ohio litigation—begins by using advanced computing technology to randomly generate a large collection of districting plans that incorporate the State’s physical and political geography and meet its declared districting criteria, except for partisan gain. For each of those maps, the method then uses actual precinct-level votes from past elections to determine a partisan outcome (i.e., the number of Democratic and Republican seats that map produces). Suppose we now have 1,000 maps, each with a partisan outcome attached to it. We can line up those maps on a continuum—the most favorable to Republicans on one end, the most favorable to Democrats on the other. We can then find the median outcome—that is, the outcome smack dab in the center—in a world with no partisan manipulation. And we can see where the State’s actual plan falls on the spectrum—at or near the median or way out on one of the tails? The further out on the tail, the more extreme the partisan distortion and the more significant the vote dilution.

The North Carolina plaintiffs randomly produced 3,000 districting maps that meet the legal criteria. All of them were more favorable to Democrats than the one the legislature adopted.

Under [the lower courts’] approach, in other words, the State selected its own fairness baseline in the form of its other districting criteria. All the courts did was determine how far the State had gone off that track because of its politicians’ effort to entrench themselves in office. …

The plaintiffs asked only that the courts bar politicians from entrenching themselves in power by diluting the votes of their rivals’ supporters. And the courts, using neutral and manageable—and eminently legal—standards, provided that (and only that) relief. This Court should have cheered, not overturned, that restoration of the people’s power to vote.

And finally, Kagan examined Roberts’ faith that the political system would fix this problem on its own.

The majority disagrees, concluding its opinion with a paean to congressional bills limiting partisan gerrymanders. “Dozens of [those] bills have been introduced,” the majority says. One was “introduced in 2005 and has been reintroduced in every Congress since.” And might be reintroduced until the end of time. Because what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.

No worries, the majority says; it has another idea. The majority notes that voters themselves have recently approved ballot initiatives to put power over districting in the hands of independent commissions or other non-partisan actors. Some Members of the majority, of course, once thought such initiatives unconstitutional. But put that aside. Fewer than half the States offer voters an opportunity to put initiatives to direct vote; in all the rest (including North Carolina and Maryland), voters are dependent on legislators to make electoral changes (which for all the reasons already given, they are unlikely to do). And even when voters have a mechanism they can work themselves, legislators often fight their efforts tooth and nail. Look at Missouri. There, the majority touts a voter-approved proposal to turn districting over to a state demographer. But before the demographer had drawn a single line, Members of the state legislature had introduced a bill to start undoing the change. I’d put better odds on that bill’s passage than on all the congressional proposals the majority cites.

She concludes:

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.

Potemkin democracy. My interpretation of these opinions is that Roberts (and the minority-rule court majority he leads) has no interest in actual democracy, just Potemkin democracy. As long as we have “elections” in which people vote and votes are tabulated, he’s satisfied. If the system has been rigged so that the same people win all the time, well, that’s just politics. And the Roberts Court is above politics.

What I think we should never lose sight of is how all these minority-rule actions build on each other, and then wrap around to cycle through again. A minority-rule Senate and a minority-rule President have given us a minority-rule Court. The Court now is returning the favor, helping the ever-shrinking conservative minority to maintain its hold on power into the indefinite future.