Preparing for the Worst

We might have an extra-constitutional transition of power in the next decade. What can the left do to prepare?

The January 6th Select Committee has been holding hearings for the last few weeks, and some of the revelations have been pretty wild. But let’s leave aside questions like “did Trump actually try and grab the steering wheel of his limo,” and zoom out for a second.   

Here’s the basic situation:

• The President of the United States, along with some of his most powerful supporters, incited a mob attempt to overturn a fair, democratic election

• They also attempted to work through the courts and the state legislatures to achieve the same goal

• Basically no one influential who was involved with these attempts has suffered any repercussions, either legal or political

• Trump’s current favorability ratings are higher today than they were for most of his presidency, including on election day in 2020

• Trump has been extremely explicit about his aims to repeat his attempt to overturn the election in 2024, should he be the Republican nominee again in a close election

• Voters who are more amenable to authoritarianism are increasingly sorting into the Republican party, and the party as a whole is growing much more receptive to directly challenging our democratic process

Looking ahead:

The plot to steal the 2020 election was, as far as attempted treasonous conspiracies go, very dumb. (Remember: it was led by a group of people so incompetent they ended up giving a press conference in the parking lot of a landscaping company.) But while the 2020 plot was never likely to succeed, Republicans have been laying the groundwork for a successful theft, if they lose a future election, ever since. The most worrying possibility is that Republicans legislatures in swing states like Pennsylvania will either proactively

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or retroactively

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assign their states’ electors to the Republican nominee, regardless of the will of the voters. 

Obviously, the judiciary plays a big role in deciding whether such schemes succeed. Thus far, judges have not seemed on board with Republican plans to literally end democracy. But that could certainly change. For example, this week, the Supreme Court agreed to hear Moore v. Harper, a case involving what’s known as the “independent state legislature theory.” For an excellent, concise explanation of the legal dynamics at play here, I recommend this piece by Adam Liptak. The underlying text relevant to the case comes from Article I, Section IV of the Constitution, which says: 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Meanwhile, separate from this clause, Article II, Section I says:

The executive Power shall be vested in a President of the United States of America. He shall… be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress (emphasis added). 

These two clauses, in the hands of the conservative majority, may provide the current Supreme Court majority all the ammunition they need to allow Republican legislative majorities in states like Wisconsin, Michigan, and Pennsylvania

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to:

• Further rig the rules in favor of their party

• Throw future elections to Republicans, in direct defiance of the will of the voters 

• Cancel the direct election of presidential electors all together 

Needless to say, this would be very bad. 

In search of solutions:

As I’ve thought about these questions more over the last few weeks, I’ve come to think that the odds that the military ends up arbitrating one of the next couple elections is frighteningly high. 

To illustrate what I mean, here are two scenarios that seem plausible (or at least possible) to me:

Scenario 1: 

• In 2024, Biden seems to have won re-election, but it’s really close, and Republicans allege fraud. Republican governors and secretaries of state in Michigan, Wisconsin, and Pennsylvania refuse to certify the results in their states, and submit their own slate of Republican electors, approved by their respective legislatures. 

• Then, the Supreme Court either:

  • A: Approves these alternative slates, giving Trump/Desantis/whoever the win, or:

  • B: Due to the controversy, the Court rejects both the Democratic and Republican slates of electors from these states, throwing the election to the House, where Republicans win (the House vote in this case would be on the basis of majorities of each state’s House delegation, not on which party has an overall House majority – another insane feature of our electoral system that advantages Republicans). 

Scenario 2: 

• Republicans win the presidency fair and square in 2024 (57% chance on Predictit as of now). They have a dominant position in the Senate, and on the state level as well, going into 2028.

• After four more years of increasing entrenchment of conservatives in the administrative state and judiciary, a scenario similar to either 1A or 1B happens. Except this time, a Republican president is the incumbent. 

In either scenario, both sides will be able to make some claim to the presidency. In this specific scenario (and in other plausible ones that are similar), Republicans would seem to have the stronger claim under the pure legalese of the Constitution (though not current Supreme Court jurisprudence). The Democratic nominee, however, would have a far stronger claim to true legitimacy: They would have actually won the election. 

There are a variety of ways things could unfold in such a situation. Individually, each is pretty unlikely, so I’m not going to write them all out. Alternatively, One option is that Democrats could simply abide by the court ruling, like in 2000, and meekly give up the Presidency. Another option is some sort of extra-constitutional “grand bargain” between the two parties, à la 1876. 

But another option is that both sides refuse to back down. In this case, perhaps large scale protests and/or political violence ensue, and ultimately, military leadership steps in and effectively decides who gets to run the country. 

I’m really, really not sure how to evaluate the probability that this, or something in the vicinity of it, happens in the aftermath of one of our next few elections.

But the odds definitely seem to me to be higher than, like, 5%.

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The Metaculus community estimates a ~4% chance of a “civil war” causing more than 500 deaths within the next decade, and that seems less likely than what I’m imagining.

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That means it’s worth thinking through how to deal with this seriously, from both a left perspective, and a small-d democratic perspective. 

Important questions:

Once we step outside the bounds of the legalistic transition of power, things start to get a lot murkier. Power ultimately lies where people think it does, so a lot of the jockeying here would likely be over public opinion. Mass protests would seem fairly likely in any of these scenarios, and you could certainly see an uptick in violence, both in terms of local militia-type entities, or an increase in politically motivated assassinations.

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Here are what I see as some of the important questions for the Democratic party and the left:

First, and most importantly, how can we make sure the military upholds democracy? One advantage Democrats have in this department is education polarization. While the officer corps of the military used to be an extremely Republican demographic, they have shifted dramatically to the left in recent years. But that doesn’t mean they’re certain to be on our side, especially if (in the 2028 scenario) Trump or Desantis have spent four years purging the top brass, and replacing them with their people. 

Second, what does capital do in these scenarios, and how can we make sure it’s on our side? Corporations and the super wealthy technically have no formal role in our democracy, but they obviously exert a lot of power, both directly through their wealth, and through cultural influence. Education polarization in corporate boardrooms is helpful here as well, but Republican minority rule is good for Coca-Cola’s tax burden, so it wouldn’t be surprising if they side with authoritarianism. We need to try to make sure that doesn’t happen. 

Third, what about the role of organized labor? Unions are probably the best positioned left-affiliated entities to organize disruptive protests of societies (e.g. large scale strikes in critical industries). I’d like to see union leaders thinking and preparing for how they can use their influence to protect democracy in an extra-constitutional scenario. 

There are lots of other considerations as well, such as the role of the media and our foreign allies.

My thoughts:

One idea for protecting democracy I’ve been kicking around is some sort of bipartisan change – perhaps enacted by Congress during the latter part of Biden’s current term –  to the executive branch appointments process. 

There are two things I’d want to see done here. First, it might be good to amend the Federal Vacancies Reform Act, to limit the ability of future presidents to unilaterally install their pro-coup allies in roles as acting officials. 

And second, I would like future Republican presidents – especially if we get another Trump term –  to have less unilateral power over appointments to military leadership. To achieve this, perhaps Congress could create an independent board – appointed on a bipartisan basis during the Biden administration, with five-year terms – that presents a list of candidates to be the Secretary of Defense, and the President would have to choose from that list.

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The foreign policy leftist in me hates this, because it would entrench the power of the blob. But maybe that’s worth it if it prevents Trump from handpicking military leaders who are amenable to Republican attempts at election-stealing.

I also think it’s important to get as many powerful people on the record now about how they will respond to a truly stolen election, should it occur. Obviously some of this is happening, especially in politics. But a systematic project to get major corporations, powerful CEO, every foundation, and current and retired members of the military to publicly declare they are opposed to, for example, state legislatures appointing presidential electors seems like it would clearly be good. 

In general, I don’t think I have a ton of ideas here, which is too bad: I wish I had more suggestions. Mostly, I’m writing this piece as a call for other people to weigh in. I haven’t seen much mainstream coverage seriously engage with “what does the left do in a situation where the presidential transition has fully left the realm of the Constitution.” And since it’s not that unlikely to happen, this seems like a major blindspot. 

I’d like to see more articles in mainstream publications, like these pieces in the Washington Post and The Atlantic, by serious, professional scholars of dictatorships and political history, analyzing likely failure modes, and proposing ways to reduce the chances of seriously destabilizing and violent scenarios. I’m not just talking about proposals for avoiding literal civil war (which, to be clear, I still think is quite unlikely), but also for ways to make sure we don’t end up in an American version of Hungary, or The Troubles, or some other similarly bad scenario. 

In conclusion:

I felt a bit odd writing this blog post, since I do think that the most likely scenario is that we somehow just muddle through, and none of this comes to pass. For one thing, Republicans might just keep winning elections outright, without any suppression or theft necessary. And on the flip side, Democrats could start winning so convincingly that Republican schemes are easily foiled. Those two things account for a decent share of the probability distribution. 

And I’m wary of any cognitive biases I have toward overestimating the probability of an event just because it catches my imagination. This puts me in the odd position of writing something that I may later look back on and think was overly alarmist. 

But given how important it is for the left and the Democratic party to successfully navigate an extra-constitutional transition of power, should it occur, I think it’s worth mapping out alarming scenarios and responses, sooner, rather than later. 

1.  My guess is that this would likely be deemed legal by the current Supreme Court.

2.  My guess is that this would probably not be deemed legal, but with this Court, who knows. 

3.  My guess is Republicans will have two out of those three governorships in 2024, but having all three is decently likely. 

4.  One way of thinking about this: if we had 200 years worth of presidential elections, with this much polarization, and this much animosity towards democracy by one party, would you really not expect a single election to be resolved by the military? 

5.  Just on base rates, this doesn’t seem crazy – so far, we’ve had a civil war in 4% of all decades of U.S. history (one out of twenty five). 

6.  Given the recent news about the man found outside Kavanaugh’s house, this is not an abstract concern. 

7.  Would this fly with this Supreme Court? As with all legal questions these days, who knows.