Neil Buchanan: Are We Witnessing the End of Democracy?

This article first appeared on the Dorf on Law site.

Among all of the things that Donald Trump could do as president, what is the most frightening? The clear answer is that Trump and the Republicans could effectively end the prospect of free and fair elections. Before getting into that, however, we need to consider some other threats that we now face.

Sadly, there are plenty of other reasons to be scared, including Trump's threats against the free press and his promises to turn the so-called war on terror into an excuse to discriminate against people on the basis of religion, race and nationality. Foreign policy is also a disaster waiting to happen.

Then there is the misogyny. How much damage will be done to women's rights in a world where concerns about sexism and even physical assaults will be dismissed as mere oversensitivity and political correctness? Contraception, abortion, and everything else are now in the balance.

And Trump's economic proposals promise to worsen inequality and make a mockery of his claims that he would help the struggling middle class, especially his blue-collar supporters.

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Still, I think that the most profound concern goes beyond all of those fundamentally important looming policy battles. Like many observers (including Linda Greenhouse in The New York Times and a number of commentators quoted in the Huffington Post, along with countless others), my concern is that the rule of law in the United States might now be nearing its expiration date.

In my latest column, I argued that there is every reason to think that Trump will be eager to test every supposed limitation on his powers. Tell him that he is not allowed to do something, and his ego and vindictiveness will go into overdrive, leading him to do what he wants while shouting, "Who's gonna stop me?!"

The simple answer should be that the president is not above the law, so the rest of the government will stop the president from exceeding his powers. Although government is supposed to be a system of laws and not men, however, it is real human beings in positions of leadership who must step up and stand in Trump's way. Based on the actions of the Republicans throughout the campaign, I am not confident that anyone will even try.

Even so, I do understand what must have driven NeverTrump conservative commentator David Brooks to end his first post-election op-ed with this dig: "After all, the guy will probably resign or be impeached within a year. The future is closer than you think."

11_26_Neil_democracy_01 Speaker of the House Paul Ryan (R-WI) introduces House Majority Leader Kevin McCarty (R-CA), Steve Stivers (R-OH), Jason Smith (R-MO), Luke Messer (R-IN), Cathy McMorris Rodgers (R-WA) and House Majority Whip Steve Scalise (R-LA) after being renominated to be House Speaker by the House Republican caucus on Capitol Hill in Washington, D.C., on November 15. Neil Buchanan writes that so far, the Republicans have succeeded in making elections much more difficult for Democrats to win. Rather than an even playing field, Democrats have been running uphill. Now, we can expect that Trump and the Republicans will try to tilt the playing field even further, and they might make us carry anvils while we try to get to the top. /Joshua Roberts/reuters

Even if we might (against all evidence) think that Republicans in the House would dare to impeach Trump, or that a majority of Senators could consider voting to convict him and remove him from office, why would we imagine that they would do so in a vacuum, where Trump is not intimidating them and threatening them every step of the way?

After all, the president controls the military and the FBI, as well as dozens of other agencies with not merely guns but the power to ruin people financially and even arrest them and their families. If Trump is committing impeachable offenses, why would he not use every power available to him to get his way?

For now, however, let me put aside those more dramatic elements of the threat to the rule of law and return to the specific threat that I mentioned at the beginning of this column. Trump and the Republicans have every reason to make free and fair elections a thing of the past. Indeed, they are already well on their way to success.

Try to imagine a future in which Trump does not break down the legal norms that have guided this country to greatness. He does not ignore the Supreme Court. He places competent lawyers in the Office of Legal Counsel and even listens to them when they tell him that the presidency is not a dictatorship. So far, so good.

But imagine also that Trump's policies fail to make people better off, that he indulges his worst bigoted impulses and his popularity plummets. He could face the possibility of defeat in 2020. What can he start doing today that will inoculate him against the will of the people four years from now?

He does not even need to "rig" the elections in a blunt sense, because all he needs to do is to help Republicans continue to do what they have been doing for years. This is not to say that Trump would be above resorting to those more blunt strategies, of course, but we can leave those aside for now.

In a column last month, I tried to understand why people like House Speaker Paul Ryan continued to support Trump even in the face of Trump's assaults on decency and his obvious contempt for Republicans (especially Ryan himself). I concluded:

Ryan's pet spending cuts and upward redistribution of wealth are so important to him and his backers that they cannot even wait for four years, during which time they could try to limit Clinton's actions and then find a candidate in 2020 who is not Trump.

That still strikes me as a possible explanation, but I now think that the better explanation is not economic but electoral. Republicans could not afford to allow a Democrat to serve as president, even for four years, because she would have done what she could to roll back the Republicans' quite successful voter suppression laws and tactics.

Ryan and his cohorts (including Vice President-elect Pence) could not wait for 2020, because demographic trends are already running against them and even this year their nominee could only win the electoral college by taking states where Republicans have openly engaged in voter suppression tactics.

Or, as Ryan Lizza put it in The New Yorker:

Had just over fifty-five thousand people in the three states with the closest results—Michigan, Wisconsin, and Pennsylvania—changed their vote preference to Clinton, the Electoral College would have aligned with the popular vote, and many commentators would be exaggerating the meaning of Clinton’s victory instead.

And Lizza did not even mention North Carolina, which had a larger margin of victory for Trump but which also was probably the worst of the states that had gleefully embraced the Supreme Court's gutting of the Voting Rights Act in Shelby County v. Holder in 2013. (Ohio was also a leader in voter suppression efforts, led by the supposedly moderate Governor John Kasich.)

Time was not on the Republicans' side. In order to avoid electoral oblivion, they had to make a last stand in 2016. Trump ended up being their nominee, which should have driven the Republican leadership away.

But the alternative, in their view, was worse. It was not that Clinton was actually the demon that they made her out to be, but rather that having any Democrat in power was going to make it harder for Republicans to keep changing the election rules to keep themselves in the game. This was an existential threat.

The Republicans' anti-democracy tactics, moreover, have not been limited to voter suppression efforts. There is, of course, the gerrymandered Republican majority in the House.

There were times during the general election campaign when Clinton opened huge leads in the polls and large numbers of Republicans were abandoning ship (albeit only temporarily in some cases). The political question then became whether the Democrats could retake the Senate and even the House.

Taking the Senate was readily achievable (after all, even with the Clinton loss, the Democrats defended their one vulnerable seat and picked up two more), but the thought among the professional pollsters was that Clinton would have to win by something like ten points in the popular vote for Democrats to have a chance to eke out control of the House.

In some sense, this is incredibly depressing. The courts have done little to nothing to stop gerrymandering, with the result that the Republicans could keep winning the House even if they had the support of, say, only 46 percent of the voters. On the other hand, it means that the Republicans had not completely closed off the possibility of Democrats' winning back the people's house.

And this is where my story becomes one of optimism rather than resignation. Notwithstanding the apocalyptic future histories that I have written here and in my other recent columns, the reason that we all need to fight harder now is that it is simply wrong to say, "It's all over now." Even though I strongly suspect that Trump will stop at nothing to maintain power, there is still reason to fight.

Think of it this way. So far, the Republicans have succeeded in making elections much more difficult for Democrats to win. Rather than an even playing field, Democrats have been running uphill. Now, we can expect that Trump and the Republicans will try to tilt the playing field even further, and they might make us carry anvils while we try to get to the top.

The reasons to fight are thus to prevent those election-rigging strategies from being adopted in the first place, and to win future elections even if we have to overcome all of the obstacles and disadvantages that the Republicans can impose on the majority of our country.

Like all writers, I am constantly updating a list of future topics. After Trump's unexpected squeaker of a win, many of my planned columns are now in the dustbin. No more need to write "Republicans Will Impeach Clinton Over the Debt Ceiling," or "Democrats' Senate Majority Expires January 3, 2019," or many others Trust me, they would have been great!

Even so, some topics only became more important in light of Hillary Clinton's shocking loss. In a column last week discussing the media's narrative that undermined Clinton's election chances, I noted that I would have written that column either way, because the media's shortcomings seriously undermine the health of this country's political system.

Similarly, I would have written something about the Republicans' all-out voter suppression in any event, but the question of the fairness of our elections is now arguably the most important issue facing our country. Trump and the Republicans have every reason to try to change the rules to allow themselves to stay in power, no matter how unpopular they become.

If they can be stopped, we will still have a free country. If not, Trump and the Republicans will probably see the public relations value in continuing to go through the motions of holding elections, but the results will be no more in doubt than the 97 percent wins by dictators-for-life in countries that we like to think are politically beyond the pale.

That is the challenge that confronts us now. Given the power and determination of those who are afraid to let the people speak at the ballot box, we cannot be assured of success. But there is no other choice but to fight.

Neil H. Buchanan is an economist and legal scholar, a professor of law at George Washington University and a senior fellow at the Taxation Law and Policy Research Institute at Monash University in Melbourne, Australia. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.

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