The Once and Future Takeover III -- plugging gaps in our institutions

capitol-riot-documented-1_saul_loeb_AFP-Getty_Images.jpgIn the first two parts of analyst Sean Dobson’s account this week, we have seen the shape of the failed Trump coup in 2020 and the many flaws in our electoral system that could be far more exploited by an organized post-Trump white-supremacist GOP rightwing core at the next opportunity. What are the ways that pro-democracy forces could contest those strategies – not only the obvious ones that happen before, during and even after Election Day but the less-visible vulnerabilities that require legislative and executive action sooner rather than later?

In the third of four parts, Dobson -- Progressive Maryland's board chair and a progressive historian of modern politics -- the activist path is laid out that will be required to mount the best defense against a likely more coherent GOP takeover attempt. Keeping police and the military neutral and militias weak are critical tasks, as is reining in the unchecked power of social media and the Russian trolls who surf it.  As we find, “Nothing in the US Constitution or federal law specifically mandates that the President be popularly elected” and that leaves the field open for a lot of GOP mischief that must be fixed legislatively.

Here is how the fixes can be accomplished. This full essay can be read here.



photo:Saul Loeb/getty images

/By Sean Dobson/PM BlogSpace Analysis/ A future strong GOP coup attempt would probably benefit from split control of Congress, a state of affairs that unfortunately pertains most of the time. For another rare example of relative clarity in the congressional tallying rules stipulates that it happens in two stages. In the first, the two chambers try to agree on a winner. If, as seems distinctly possible in a future split-chamber Congress, they fail to do so, then the decision gets referred to the House of Representatives to decide on its own. Crucially, however, Article II stipulates that the House would decide not by a vote of a majority of its Members, but instead by a majority of its state delegations. In the last three Sessions, Democrats formed a majority of Members, but Republicans a majority of state delegations. Hence there is good reason to believe that Republicans will continue to control most state delegations in 2024 and/or 2028. Under this scenario, then, a presidential election kicked to the House of Representatives would probably result in victory for the Republican candidate. And so the putsch would succeed, and indeed with a sheen of legality.

Democratic lawmakers would have a final card to play, but a weak one. Perceiving such an end-game before it happens, they could boycott the entire tallying process; then declare that only both chambers together can refer the election to the House of Representatives, thereby removing it as final arbiter; then assert that therefore the first and second stages of the congressional tally had both 10 failed and that neither candidate wins; and then insist that the (presumably) Democratic Speaker of the House, as third in line of succession to the President, must ascend to the Presidency on Inauguration Day.

The problem with this strategy is simple: Republicans of course would not remain passive. They would instead claim with strong constitutional grounding that under the rules of Article II Republican House Members on their own could form a quorum of the “House of Representatives” for the sole purpose of electing the next President of the United States, which they could accomplish in any room in the Capitol complex. In other words, a Democratic boycott of the tally would almost certainly result in two different persons getting sworn in as President on Inauguration Day, one Democrat and one Republican, which of course would constitute an historic crisis.

Reviewing strengths -- and vulnerabilities -- of the GOP Coup Strategy

As we saw above, the strongest possible future Republican coup attempt would channel the wrath of the GOP base into mass yet district-specific grassroots threats of primary challenges against state legislators in swing states if they refuse to falsify Electoral College slates; then, with those same threats, pressure Republican Members of Congress to certify those slates.

And as we saw above, such a strategy could very well succeed. That’s because the democratic bona fides of the President of “the world’s oldest democracy” dangle from old and slender threads in the form of 50 separate state laws passed mostly in the 19th century awarding each state’s Electoral College votes to the popular[1]vote winner there. Worse, they hang by a mere three or fewer such threads considering the closeness of recent presidential elections decided by three or fewer swing states. Nothing in the U.S. Constitution or federal law specifically mandates that the President be popularly elected. To the contrary, the antiquated rules of our 18th century constitution as well as the 19th century’s 12th Amendment and Electoral Count Act actually give putschists multiple tools to cut those threads and thus perpetrate a coup with a sheen of federal (if not state) legality. Trump’s putsch in 2020 failed because he did not zero in exclusively on this Achilles Heel of our democracy. But his bumbling showed Republican putschists – now a probable majority of elected Republicans – exactly how to snap those few threads by falsifying three or fewer Electoral College slates at the 11 state level then certifying the theft(s) in the congressional tally, which could be done at the joint-chamber stage of the count if the GOP controls both Houses of Congress, or in the House of Representatives acting on its own if, as usual, the GOP controls most of its state delegations.

How to Thwart the Most Likely, Future, Strong GOP Coup Attempt

Given the nonstop, long-durational radicalization of the GOP, especially its base, Republicans might very well try to act on those lessons in 2024 and/or 2028. Freedom-loving Americans need to prepare now by supplementing the fragile state-level threads referenced above with steel cables and girders, especially at the federal level, so our democracy can withstand the probable coming onslaught.

Personnel Changes

Most Capitol police performed heroically on 6 January, but a disturbingly large number seemed passive vis-à-vis the mob and some even fraternized with the putschists. As of the writing of this essay, it was also coming to light that a dismayingly large section of the mob hailed from active-duty military and law enforcement. The military as well as all levels of police need to perform immediate background checks on personnel to assess the extent of far-right infiltration, dismiss and if appropriate prosecute anybody with insurrectionist background or plans.

Legal Changes

In any jurisdiction Democrats control, they should enact laws to undo Republican voter-suppression measures and expand voting options.

At the state level, lawmakers should, as in California, replace gerrymandering with nonpartisan commissions charged with drawing maps of election districts, a move that would not only promote good government but also disproportionately hurt a GOP that relies more on gerrymandering than do Democrats. This type of reform, by increasing the importance of general elections and decreasing that of primaries, would weaken the hold of the GOP base on elected officials who only ever worry about primary challenges from the right, which would decrease their incentive to appoint or certify false Electoral College slates. And even if after such 12 a reform Republican elected officials continue down the path to putschism, an end of gerrymandering would make Democrats more competitive in State House elections and thus lessen the odds of legislatures’ falsifying Electoral College slates. It would also probably reduce the artificial Republican majority of state delegations in the U.S. House of Representatives, in turn decreasing the odds that any future contingent presidential election thrown there would result in a fraudulent Republican presidential victory.

State lawmakers should join the National Popular Vote compact among states by adopting NPV model legislation. If states comprising 270+ Electoral Votes sign on, it would then be impossible for Republicans to steal a presidential election by corruptly flipping a few swing states.8

At the federal level, the Biden Administration can take several actions that require no congressional approval. The FBI should vigorously investigate the insurrectionists of 2020 and DOJ prosecute them to the fullest extent of existing law both to make an example of them and to move them from the political arena into federal prison. That starts with prosecution of Trump himself for assembling and inciting the mob, then watching it invade the Capitol on TV for more than an hour before feebly asking the rioters to disperse while also praising them.9

Federal and state law enforcement should investigate on suspicion of sedition every single one of the hundreds of private, armed, right-wing, self-styled “militias” across the country. Even many of those not guilty of sedition could and should be abolished under existing but seldom enforced federal and state laws as well as state constitutions banning private militias of any kind.

Biden’s DOJ might have to prod a sluggish FBI to move these investigations aggressively considering that most agents lean conservative politically, and more than a few undoubtedly harbor far-right views.

DOJ should ask the federal judiciary to re-impose a consent decree ordered by the court in 1981 but lifted in 2018 barring the GOP from various types of voter suppression tactics, especially so-called “ballot security task forces” aimed at intimidating Democrats, especially of-color Democrats, from voting. 13

Thanks largely to Trump, the entire GOP views Putin’s Russia as an electoral ally, proof of which was the treasonous refusal of every single congressional Republican save one to support House-passed legislation to strengthen our electoral system against foreign meddling.10 Under Biden, Congress should not only enact that bill, the U.S. should also restart the Cold War against a Russia that hates democracy, America, and our allies every bit as much as did the defunct Soviet Union. Unfortunately, we need once again to inflict pain on the Russians – cyber, financial, economic, touristic, diplomatic, strategic, and perhaps even military – as the only way to deter their aggression.

The following measures would require congressional approval. They should thus be enacted immediately during the two-year window of opportunity afforded by Democratic control of the executive and legislative branches of the federal government before Republicans will probably win back one or both chambers of Congress in the 2022 mid-term elections. Moving this legislation, especially in such a tight frame, would require abolishing the undemocratic and conservative[1]favoring Senate filibuster, a reform that should have happened decades ago.

Considering the Senate’s failure to convict Trump on the impeachment charges brought by the House, Democrats at least can pass measures by simple majority to make it more difficult for Trump (and future Trump wannabees) to run for President, such as disqualifying any candidate who refuses to divulge past and current tax returns, who are in debt to foreigners, who refuse to commit in advance to placing their wealth in a blind trust while in office, etc.11

Second, to the extent existing laws against insurrection prove too weak to convict Trump, his henchmen, and the mob of 6 January, Congress should strengthen them.

Congress should enact H.R. 1 and H.R. 5 to strengthen voting rights across the board. This will make it harder for the GOP to suppress votes cast by Americans of color, most of them Democrats.

Relatedly, the Postal Service should receive more funding so it can deliver mail ballots in a timely manner. 14 Even without Republican mischief, unintended glitches and even meltdowns afflict election systems in too many localities, even in Democratic ones. Congress should appropriate enough money to help them modernize, professionalize, and harden systems against foreign and domestic tampering.

As we saw above, the chief advantage future putschists enjoy lies in the fact that mere state, not federal or constitutional, law links winning the popular vote to obtaining Electoral College votes. To strengthen that linkage, Congress should anchor it in federal law by mandating that no federal lawmaker may be seated if s/he failed to win the popular vote, specifying that in the case of presidential candidates that means winning a state’s popular vote in order to obtain its Electoral College votes. Such a law would thus make it possible for Congress to use its own judgment (not rely on state officials with a history of voter suppression) in deciding which Electoral College slates to honor. It would also strengthen the writ of federal judges to intervene in state elections if local officials suppress or falsify votes.

The federal penalty on interfering in or falsifying an election should be strengthened and in any event should count as a felony, with lowered need to prove intent. The language should be crafted to require a long prison sentence for anybody engaging in known Republican tactics, including the Brooks Brothers Riot of 2000, Trump’s harangue of Georgia Secretary of State Raffensperger to “find votes”, intentionally spurious claims of “voter fraud” made by Trump’s attorneys, Trump’s incitement of the mob to storm the Capitol, etc.

Lawmakers should replace the opaque and defective language of Title 3 governing the workings of the Electoral College. For example, the “safe harbor deadline” should be moved closer to the congressional tally to give states as much time as possible to determine the popular-vote winner; and in plain English the Title should prohibit congressional certification of false Electoral College slates and disqualification of veracious ones.

Ever since the emergence of social media 20 years ago, defenders of free speech (myself included) advocated erring on the side of liberality in the hope that an increasing volume of speech on the internet would, on balance, promote the public interest, and/or that social media companies would voluntarily block false, extremist, and insurrectionary content. We now know those hopes were naïve. 15

Twitter alone made Trump’s ascent to the White House possible, and conspiracy theories circulating on that and other platforms help account for the widespread Republican belief that Democrats stole the 2020 election. Twitter and Facebook waited until Trump’s final week in office to finally deactivate his accounts; YouTube merely suspended it for one week. Given this track record, we obviously cannot depend on social media companies to “police themselves” when their business model relies on posting inflammatory, false content to maximize eyeballs and therefore advertising revenue. No right, including free speech, is absolute; and seditious speech on the industrial scale enabled by social media must eventually destroy democracy. Congress should make all internet sites directly and legally responsible for their content so that these companies too – not just the individuals who post it -- are liable for any attempts on those platforms to disrupt or falsify an election or foment insurrection. And platforms should be barred from posting electioneering content of any kind three weeks before an election, even for dog-catcher.

Law enforcement should look more closely at right-wing cable outlets, such as Fox News, One America Network, Newsmax, etc. Did any of them cross the line by directly calling for insurrection? Did any of them incite the mob of 6 January? If they violated existing laws banning sedition, they should be prosecuted and the FCC should revoke their licenses.



NEXT

We have seen in this week’s deep exploration of the GOP right wing’s strategies – taking advantage of resentments among the former culturally dominant but now dwindling white working class, finding weaknesses in the US’s antiquated system to reverse electoral outcomes at the state and federal level – that only an informed and active pro-democracy movement can protect our future elections by making executive, legislative, behavioral and other changes at every level. In the final installment tomorrow, analyst Sean Dobson outlines the surprisingly broad agenda – both difficult and energizing – that progressives and their pro-democracy allies  must tackle NOW to ward off a right-wing takeover of government that, if not fought early, could be very difficult to reverse and result in a permanently authoritarian nation. Patching up our antiquated and vulnerable political-electoral system is vital, but organizing for progressive change is crucial, as well, to guard against an undemocratic and possibly irreversible takeover by the authoritarian right.


Sean Dobson is board chairman of Progressive Maryland. This full essay can be read here. Reference notes for this and subsequent installments can be found at the conclusion of installment IV