What now? The debt ceiling drama has been put back on hold for the next nineteen months, so all of our problems are solved, right? In the first of two postmortem columns examining President Biden’s deal that temporarily averted disaster, Michael Dorf and I noted yesterday that the President jokingly said that he plans to return to “previously scheduled programming,” which of course is anything but business as usual in a world where everything has become unusual.
Even so, I am taking the cue from our President and going back to writing about the topic that has consumed me for much of the past several years. Because that topic is the impending death of (what remains of) American democracy, however, there is no sense of relief in putting the debt ceiling behind me. Rather, now that there is no longer a problem that threatens to destroy the Constitution and the global economy in a matter of days, I must return to thinking about the likelihood that we could see the end of the Constitution (and, perhaps indirectly, the global economy) within a year or two.
The other existential threat facing the world is climate change, which is no longer in the category of “things that we need to think about now, lest we see bad outcomes later.” What once looked like a decades-long timeline for environmental disaster has already begun and will get worse well within the lifetime of all but (perhaps) the oldest Baby Boomers. Even so, I am only capable today of discussing one such disaster, and I choose democracy’s imminent demise.
As a matter of fact, however, this column is a bit more optimistic than my usual doom-and-gloom fare. Instead, I will offer a glimmer of hope that the Republicans’ attempt to impose one-party rule on the United States might fail. These days, being able to identify even the slightest glimmer is a welcome development.
The Weak Links in the Constitutional Order Lead to January 6, 2025
I am hardly the only person who has written with hair-on-fire immediacy about the threats to the continuation of the US as a functioning democratic republic. For example, in 2021, election law expert Rick Hasen, a professor at UCLA’s law school, wrote, “Trump Is Planning a Much More Respectable Coup Next Time.” Hasen argued that as we look with fear toward 2024’s election aftermath, we should
[f]orget bonkers accusations about Italy using lasers to manipulate American vote totals and expect white-shoe lawyers with Federalist Society bona fides to argue next time about application of the “independent state legislature” doctrine in an attempt to turn any Republican presidential defeat into victory.
My Verdict colleague Vikram Amar is arguably the leading expert on the Independent State Legislature (ISL) idea, with his most recent contribution having been published here a month ago. Both Amar and Hasen are surely right that ISL is deranged and dangerous, but unfortunately, it is only one of several ways in which our constitutional system could be used against itself to end the rule of law.
In my April 2021 Verdict column, “There Are Many Different Ways to Lose Our Democracy,” I ran through all of the weak links in the Constitution that Trump or a Trump-like candidate could use to negate a loss in the next election, which would make any future elections mere shams meant to convince the public that the game is not rigged. That is, we could soon see Republicans deciding to go ahead with the usual electoral mechanics but guaranteeing the outcome for themselves in advance, in the way that Vladimir Putin and Kim Jong Un hold “elections” that miraculously always turn out the same way.
Rather than recapitulating all of those weak links here, I will focus on the final step in the process: the now-infamous joint session of both houses of Congress on January 6 of the year following a presidential election. Again, depending on many unknowns, the game could be over long before then. And I should add that by “final step” I mean the last legal step, because political violence is unfortunately a very real possibility, all the more so given that Republicans have almost all agreed to memory-hole the events on that date in 2021.
Where is the opening for Republicans to end democracy at the joint session on January 6, 2025? As we learned a bit more than two years ago, what had been thought of as a ceremonial event with no drama (so much so that almost no one even knew that January 6 was an important date) can become anything but pro forma. True, we had occasionally seen members of Congress offer resolutions challenging the counting of certain electors, but none of those were viewed as anything other than symbolic moments of protest. Indeed, even the people lodging the challenges knew full well that they were tilting at windmills.
Even though the relevant law (the Electoral Count Act) was amended by law in December 2022—in ways that seem entirely sensible—the bottom line remains that a simple majority vote of both the House and the Senate is sufficient to refuse to recognize a state’s electors. No tweaks to the legislation can prevent voting members from deeming electors to be excludible, making it ultimately a political power play.
On January 6, 2021, the House was still run by the Democratic Party’s majority, which meant that bizarre challenges to the 2020 election’s results by people like Senators Josh Hawley (soon to be seen running for his life through the halls of Congress) and Ted Cruz were doomed from the start. That background fact meant that the Senate’s ultimate votes were meaningless, which means that the vast majority of the Senate’s Republican caucus did not need to worry that their votes against the pro-Trump challenges would prevent a Republican from being handed the presidency. Their “principled” votes, in other words, were welcome but in no way indicative of what they would do if they in fact held the power of flipping an election to the candidate from their party.
Would they do that? As a threshold matter, it would require the Republicans to win back the Senate and hold the House in the 2024 elections. (Side note: The new Congress is sworn in on January 3, so the January 6 session will be convened by the next Congress, not the current one.) In a column next week here on Verdict, I will explain why gerrymandering makes retaking the House all but impossible for Democrats, even though they need only flip a net five seats. And as for the Senate, I noted this past November that there are six vulnerable Democratic seats up for grabs in 2024 and exactly zero vulnerable Republican seats. It is almost impossible to imagine that the Democrats’ current one-seat Senate majority will survive that brutal map.
Where does that leave us? As I wrote in my April 2021 column:
If the Republicans take back both the House and Senate, the only thing stopping them from handing the presidency to the Republican candidate on a future January 6—even without an armed insurrection—would be their own consciences, plus a willingness to make themselves pariahs (or worse) within their party. We should not bet on them doing the right thing.
I see no reason to reconsider that reasoning here. The picture of one or two senators or representatives saying, “You know what? I’m pro-democracy, and I don’t want to be on the wrong side of history,” is inspiring, to be sure, but to expect it is beyond naïve. After all, the weeks leading up to January 6 would be filled with nonstop claims from the losing Republican presidential candidate, the Republican National Committee, and the entire right-wing media universe that “election irregularities” had been found and documented. At the very least, there will be implausible but “plausible enough” theories floating around, giving a fig leaf to cover any collaborator’s shame.
Add to all this the intense pressure from partisan colleagues, as well as inevitable bribes and threats of violence against the officeholders and their families, and it would be asking for a miracle to have enough principled holdouts to stop Congress from rejecting the election results. After all, the presidency itself is at stake. Any Republican considering allowing Joe Biden (or whoever is the Democratic nominee) to serve as President would know that to do so means allowing tax laws, judicial appointments, foreign policies, and environmental laws to be controlled by a “woke liberal.”
In short, because we now know that the January 6 joint session of Congress is the real presidential election, and because we know that Republicans cannot possibly resist seizing power under some pretext or other, the Senate and House elections will determine who will be the next President, no matter what happens in the presidential election itself. This country, it seems, has what amounts to a parliamentary system, at least if Republicans have anything to say about it.
So Where is the Optimism Part?
But wait! At the beginning of this column, I promised that “this column is a bit more optimistic than my usual doom-and-gloom fare.” To this point, optimism has been notably lacking. Where does the inevitability of the story that I described above give way to a better possible outcome?
The answer is based in part on the disarray that we are seeing in Republican-dominated state legislatures around the country. Texas’s bright-red legislature, for example, recently impeached its Republican attorney general, and the state’s Republicans are at each other’s throats. One ever-present barrier to consolidating one-party rule is that that party could tear itself apart, preventing it from achieving its own goals.
When it comes to a presidential election, however, what would cause the Republicans in Congress to blanch at the possibility of installing one of their own in the White House? One part of the answer is that the person they install will have power over the rest of them, so they need at least to trust that person, even if they do not affirmatively like him.
The second part of the answer was inadvertently offered by Florida’s Governor Ron DeSantis, who is in (a distant) second place in Republican presidential polling. Because he has been unwilling to challenge Donald Trump directly on anything of substance, DeSantis has been making indirect swipes at Trump that are designed to differentiate the two candidates in ways that DeSantis apparently imagines will resonate with voters.
DeSantis has recently landed on the idea that the Twenty-Second Amendment gives him a killer argument, confidently asserting that “it really requires two terms to be able to” do what Republicans want a President to do. Get it? Trump has already served a term, so he has only one term left. Checkmate! But even setting aside the possibility that the Republicans could do what is necessary to give Trump a third term (although age and health might be more of a barrier than the Constitution on that score), DeSantis might have accidentally landed on something important.
As I noted above, the Republicans in the House and Senate who would have to overturn the results of the 2024 election in favor of Nominee DeSantis would have to trust him and like him enough to do so. There are plenty of stories from DeSantis’s time in Congress and as governor that, at the very least, make it easy to imagine that even the most partisan Republicans might prefer to let Uncle Joe Biden serve out a second term rather than let the widely disliked DeSantis ride herd over their party.
More to the point, however, DeSantis’s argument—essentially, “Elect me, because I’ll be there for eight years”—might be the best reason for Republicans in Congress to allow him to lose. They might think: “It would be bad enough to have him as President at all, but for eight years?!” Moreover, many of the people voting on January 6 will view themselves as future presidents. Waiting four years to run for an open seat might sound quite a bit better than waiting eight years to run in what will by that time be fake elections.
Do I think that this glimmer of optimism is reason for genuine hope? Not at all. Even so, if we truly are in the dire straits that I have described here—and we are—only longshot possibilities remain. It is better than nothing.