17.11.2022

An ageing republic

The Trumpists did badly but Joe Biden is highly vulnerable. Daniel Lazare looks at what passes for democracy in America

Last week’s US midterm elections were supposed to see a Republican tidal wave that swept Democrats off their feet. Instead, Dems held their ground, while Republicans were left dazed and confused. This leads to two questions: what happened and what does it mean for the future of American democracy, such as it is?

The first answer is clear: abortion and denialism. According to the conventional wisdom, abortion was not supposed to matter, because Americans had moved on to other things, once the Supreme Court handed down Dobbs v Jackson Women’s Health Organization, its stunning decision overturning national abortion rights in late June. Four months is an eternity, as far as America’s notoriously short attention span is concerned, so the general assumption was that voters would focus on other matters instead, such as inflation or Joe Biden’s growing senility.

Since the January 6 2021 Capitol Hill insurrection was even more ancient, it was not expected to matter much either. Republicans were therefore free to rake Democrats over the coals on the economy, while rallying the faithful with cries that the 2020 election had been stolen and that the Biden presidency was illegitimate.

It was a winning formula - except that it ended up falling short. With support for abortion rights running at 60% or more,¹ voters punished Republicans in state after state in which reproductive freedom was in jeopardy. In Pennsylvania, they voted for Democratic Senate candidate John Fetterman by a margin of 4.4% over a smooth-talking TV doctor named Mehmet Oz, who memorably declared that abortion should be left to “women, doctors [and] local political leaders”. (“I just had an appointment with my doctor and, of course, I brought along a member of the city council to advise,” tweeted journalist Dan Rather. “Thanks, Dr Oz, for the suggestion!”)² For governor, they elected Jay Shapiro by a whopping 19% margin over Trump-backed Doug Mastriano - an ultra-right Republican who declared in 2019 that he wants to file murder charges against women who undergo abortions.³

Voters also approved state constitutional amendments protecting reproductive rights in California, Vermont and Michigan, while defeating an anti-abortion amendment in Kentucky - otherwise a Republican stronghold. In North Carolina, they held off a Republican offensive aimed at gaining a two-thirds super-majority in both houses of the state legislature, so that the party could override an expected veto by Democratic governor Roy Cooper and ban the procedure completely.

The news for election denialists was no less brutal. Of 199 Republican denialists who ran for the House of Representatives, the Senate, governor or other state offices, 134 were elected. This is less impressive than it seems, since most were office-holders running for re-election in a system that heavily favours incumbents. Of 80 Republican denialists who were not incumbents, just 22 were projected to win, 49 were expected to lose, and nine others were in races too close to call. Of seven Republican denialists running for secretary of state - a top state election post that would have given them effective control over election results in 2024 - six were defeated as well.⁴

That is a powerful rebuff to a Republican me-too chorus that declared that the 2020 election was rigged, merely because Donald Trump said so. “Republicans will never lose another election in Wisconsin after I’m elected governor,” a Trump-backed denialist named Tim Michels told a Wisconsin crowd on Halloween. He ended up losing to Democrat Tony Evers by 3.4%.

Democracy?

But, as important as such issues are, they are manifestation of a more fundamental constitutional breakdown. The United States is supposed to be a democracy. Everybody says so, so it must be true. But the reality is otherwise. For example:

An Electoral College increasingly biased in favour of white rural states has allowed two of the last four presidents (both Republicans) to enter the White House despite losing the popular vote.
A Senate based on equal state representation has enabled Republicans to gain 50-50 parity in the upper chamber despite representing 45 million fewer people - a gap equal to 13.6% of the population.
Even in a nominally more democratic House, aggressive gerrymandering since 2010 has allowed Republicans to win each seat with an average of 10% fewer votes.
Finally, a Republican-installed 6-3 majority on the Supreme Court is all but guaranteed to continue handing down reactionary shockers like Dobbs well into the 2030s. Of the six conservatives who are now in control, four were nominated by Republican presidents who did not win the popular vote - ie, George W Bush and Donald Trump - and four were confirmed by Republicans who, while representing a majority of a malapportioned Senate, did not represent a majority of the nation.

The upshot is a case of runaway minoritarianism, extending across all three branches of government. After losing the popular vote in seven out of the last eight presidential elections, there is little doubt that Republicans are slipping into long-term minority status. But, the more they do, the more they have availed themselves of every last minority advantage that a pre-democratic constitutional system has to offer. Thanks to the filibuster, which allows 41 senators representing as little as 11% of the population to block any bill, they have been able to fight the Biden administration to a standstill. Thanks to the Senate ‘hold’, which allows individual members to secretly stymie legislation for weeks, they are able to gum up the works even more completely. The consequence is a congressional stranglehold that is driving political temperatures through the roof.

The January 2021 Capitol Hill insurrection illustrates both the benefits and risks of such a strategy.

On the plus side, election certification is so messy that Trump could not resist taking advantage of the loopholes to try to steal another term in office. He was not the first. Indeed, Michael Moore’s Fahrenheit 9/11 (2004), the top-grossing documentary movie of all time, opens with footage of black members of Congress in January 2001 trying to use the Electoral Count Act of 1887 to challenge George W Bush’s Supreme Court-engineered election a few weeks earlier.⁵

It was a noble effort - but mainly for show, as the film makes clear. Hence, it was left to a hyper-litigious Trump to take maximum advantage of an obviously defective process by using mob violence to force vice-president Mike Pence to decertify the election results 20 years later. It would not have taken much. All Pence had to do, while presiding over a special joint session of Congress, was to veto the results in three battleground states - Arizona, Wisconsin and Pennsylvania - where Biden was leading by as little as 0.6%. If so, the effect would have been to deprive Biden of his majority in the Electoral College and thus throw the contest into the House, where, according to an even older piece of legislation - the Twelfth Amendment, ratified in 1803 - “the votes shall be taken by states, the representation from each state having one vote”. Since Republicans controlled a majority of state delegations despite falling short of a majority overall, Trump would have gained a second term despite trailing by an even bigger margin than in 2016 - by seven million popular votes, that is, instead of just 2.8 million.

It would have been an unprecedented victory for minority rule. The fact that Pence refused to go along with it shows that old constitutional habits are still holding on - if only by a thread.

The upside of such a manoeuvre is that Trump came close. The downside is that the people would not be happy, once they got an opportunity to weigh in. Since the US constitution still has a few quasi-democratic elements left, Trump ended up losing big-time in the midterms - along with other Republicans who played along with him.

Recipe

This leads to the second question: what does it all portend for American democracy? In op-ed land, the verdict is clear. “US democracy looks healthier today than it did a week ago - to the delight of fellow democracies and the dismay of dictatorships,” declared neocon Max Boot in The Washington Post.⁶ Columnist Thomas L (‘The world is flat’) Friedman seconded the motion over at The New York Times: “Tuesday’s election really was the most important test since the Civil War of whether the engine of our constitutional system - our ability to peacefully and legitimately transfer power - remains intact. And it looks to have come through - a little dinged up, but OK.”⁷

All of which, of course, is nonsense. With the Senate currently split 50-49 (a Georgia run-off will decide the final seat on December 6), Democrats are for now only able to maintain control courtesy of vice-president Kamala Harris’s tie-breaking vote in what is effectively a 101-seat assembly. But, with Republicans on track to gain a slim majority in the House, that means they will confront a lower chamber in which pro-Trump diehards set the pace. The New York Times assures readers that Democratic senators “will be free to mount their own investigations to counter the threatened onslaught from a Republican-controlled lower chamber”.⁸ If so, the result will be duelling investigations, as House Republicans impeach Biden on corruption charges, due to his son Hunter’s efforts to make money off his father’s position - charges to which Biden senior is highly vulnerable, by the way - while Dems continue probing Trump’s role in the Capitol Hill insurrection. Warfare can only escalate. Biden will continue using his Senate majority to appoint federal judges - a process that will have no effect on the Supreme Court, but will help counter the conservative wave lower down in the federal judiciary. But it is guaranteed to drive Republicans into a frenzy.

Contrary to the pundits, lions and lambs will not lie down together any time in the foreseeable future. Meanwhile, even worse lies down the road in the form of a pending Supreme Court case known as Moore v Harper. This is a North Carolina case, hinging on something called ‘independent state legislature’ doctrine - the notion, based on constitutional clauses in articles I and II, that state legislators have total authority to conduct congressional and presidential elections as they see fit without interference by governors or state judges. If a Republican-controlled state legislature wants to appoint pro-Republican presidential electors, regardless of the popular vote, in other words, then the theory’s answer is simple: go for it. With three Supreme Court justices - Alito, Thomas and Neil Gorsuch - on record as supporting the doctrine, it is not hard to image at least two others clambering on board. If so, the upshot will be ‘originalism’ with a vengeance - a return to the old 18th century republic in which Washington was no more than a country town, while real power rested with the states.

Finally, there are long-term demographic trends to consider - none of them positive, as far as democracy goes. As the urban-rural gap widens, the ratio between the most and least populous states (currently 68 to one) is expected to hit 77 to one by the year 2040.⁹ That means that the Electoral College will diverge even more sharply from the popular vote, while the Senate grows even more lopsided. Where 13 states accounting for as little as 4.4% of the population can now veto any constitutional reform, according to the amending procedure set forth in article V, the magic number is set to reach 4.1% in less than two decades. A constitution dating from the age of silk knee-britches and powdered wigs is growing more rigid and unresponsive the older it gets.

This is a recipe for disaster if ever there was one. In the end, the ageing American republic resembles certain late-medieval European republics that were still in existence when it was drafted in 1787. Despite a population of 25,000, for example, the Republic of Geneva was under the control of a handful of families by the late 1700s, while Venice (population: 130,000) was slightly more democratic, in that it was ruled by 111.¹⁰

While neither republic outlived the century, it is unclear whether the American republic will even outlive the decade. The indications are not encouraging.