After the Capitol coup attempt, a lost year for American democracy

Tomorrow marks a year since the outgoing president of the United States instigated a mob of his most fervent supporters to sack the Capitol building, where they set about taking selfies, occupying offices, and hunting members of Congress as part of an ultimately unsuccessful — yet still quite damaging — effort to overturn the results of the 2020 presidential election.

For a brief moment, the horror of the insurrection seemed to unify America’s fractious political class in shared revulsion. But in the ensuing year, nearly every elected Republican chose to close ranks, while Democrats failed comprehensively to address the weak points in our system that former President Donald Trump and his vandals exploited.

Maybe our rickety political system can’t be coup-proofed anyway. But time is running out to try.

The events of Jan. 6, 2021 revealed two interrelated threats to the peaceful transfer of power that nearly everyone took for granted before Trump ran for president in 2016. One is the insanely archaic and convoluted manner in which the mechanisms of the Electoral College (itself a dangerous, unwieldy relic) are executed. The Electoral Count Act (ECA) of 1887, originally crafted to avoid replicating the messy dispute of the 1876 presidential election, seemingly empowers Congress to object to a state’s election results and reverse them. All it takes is one member from each house to voice opposition to certification to trigger deliberation and ultimately an up-or-down vote in both chambers.

Beyond that very delicate trigger, the ECA also contains no clear guide for what entity has final say if a state’s results are disputed before they get to the counting process in Congress. For instance, what happens if a state’s governor attempts to certify results that don’t match the apparent vote result and there are still ongoing legal proceedings when Congress meets? Scholars have theories, but they’re untested — and hopefully will remain so.

It’s not even clear that the authority the ECA purports to grant to Congress in the counting of Electoral College votes is constitutional in the first place. The Constitution doesn’t outline any role for Congress in the counting of electoral votes, and thus any attempt by Congress to subvert certified election results is constitutionally dubious.

Trump’s team identified these legal shortcomings in the run-up to the election, which his inner circle expected him to lose badly, and acted on them quickly. After networks finally called the election for President Biden on Nov. 7, the Trump team launched a barrage of meritless lawsuits contesting the outcome, then pressured GOP state legislators in the states with the closest margins to submit alternate slates of electors. The Trump campaign went so far as try to gather them together on Dec. 14 for a sham alternate “vote.”

To their credit, it doesn’t seem like many state legislators seriously entertained the idea at the time. Yet some of that may be less about integrity than the reality that, with Democrats in charge of the House (and the Senate, after the Jan. 5 runoffs), there was no way Trump’s allies could win a majority in both chambers of Congress to overturn one or more state’s results.

The most acute danger of the Capitol riot, then, was not the rioters’ interruption of scheduled votes. It was the possibility of insurrectionists killing a handful of congressional Democrats, flipping partisan control of both chambers, and making the impossible coup possible. They failed, of course, but if there had been a few more rioters with better knowledge of the Capitol’s floor plans, they might have succeeded.

The question of how to avoid a repeat of Jan. 6 is urgent a year later, but there are no easy answers. Clever ideas have been floated to fix the deficiencies in the Electoral Count Act, but none of them would establish mechanisms that are not just coup-proof but Republican-proof.

Take, for example, the idea of increasing the threshold for Congress to reverse a state’s election results after deliberating on an objection. As it stands, simple majorities in both chambers could, in theory, set aside the results of an election in one or more states. Perhaps raising that bar to a supermajority could prevent shenanigans?

Not necessarily. Imagine a scenario in, say, Michigan, where a Republican governor and Republican-led state legislature concoct widespread voter fraud allegations and decide to award the state’s 16 electoral votes to the Republican candidate. There’s no undisputed constitutional mechanism to prevent this from happening, since states are granted by the Constitution the authority to appoint electors “in such Manner as the Legislature thereof may direct,” and instituting supermajority requirements would in this case make the plot harder to stop. That’s because those in Congress objecting to the results would be in the right, but a Democratic minority or narrow majority, perhaps helped by a few honest Republicans, couldn’t reach that supermajority threshold.

Other options have similar problems. Congress could ban state legislators from appointing electors after Election Day, but that might just spur Republican legislatures in battleground states to change their own laws and return to the early republic practice of appointing them with their plenary authority.

Likewise, some have floated more expressly forbidding the vice president from playing any meaningful role in the counting of electoral votes. That’s great, but it wasn’t really the problem on Jan. 6, when then-Vice President Mike Pence refused to cooperate with Trump’s schemes.

And if a dispute stemming from either the certification of state election results or the counting of Electoral Votes in Congress ends up in court, the ultimate arbiter will be the Supreme Court, currently dominated by a reactionary 6-3 conservative majority that has proven it will do what it takes to safeguard GOP political power.

Or a federal election authority could be empowered to determine the rightful winner of disputed state elections, but there’s always the possibility it will fall into Republican hands and serve the party instead of the people.

That brings us to the even less fixable problem of the Republican Party itself. The GOP has been embracing quasi-authoritarian tactics for most of this century, starting with assaults on voting rights in Republican-led states during the George W. Bush administration and culminating with Senate GOP leader Mitch McConnell’s (Ky.) decision to block then-President Barack Obama’s nominee to the Supreme Court in 2016.

But it was in 2021 that this procedural radicalism was fused with a rising hostility to democracy itself. That stance was mostly confined during the Trump era to niche intellectual outfits like the heretofore little-known Claremont Institute and American Greatness, an appallingly amateurish “news site” that served as the informal in-flight magazine of Air Force One during the Trump presidency.

After losing the 2020 election, however, leading conservatives like Fox News host Tucker Carlson have openly embraced authoritarianism. The American Conservative‘s Rod Dreher wrote that he “believe[s] that the United States is entering into a period like Spain in the early 1930s,” and said that if that happens, he’ll be on the side of our analogue to Francisco Franco’s right-wing nationalists.

But it is Hungary — where strongman President Victor Orban has orchestrated single-party dominance by changing election laws, packing courts, and sidelining opposition media — that has become the American right’s new lodestar. (Carlson even aired his show from Budapest for a week last year.) It’s a place where elections can be held and the opposition can hold some power, but executive authority is not really transferable.

Political scientists call this system a form of “competitive authoritarianism.” Soviet-style totalitarianism replete with gulags and mass murder it is not, and you’d be unlikely to notice anything is amiss while strolling the boulevards of Budapest. That’s the point — to make democracy’s demise seem as unremarkable as possible.

Here in the States, authoritarian entrepreneurs softened up the GOP rank and file with a months-long barrage of lies and conspiracy mongering about the 2020 election, with almost no one in the party willing to acknowledge the indisputable reality that Biden won. Many who dissented are being driven out of the party altogether, and most Republican voters have sincerely come to think they are the ones safeguarding democracy and it is Democrats who orchestrated election theft. Candidates committed to that story are running for local election administration positions, state attorneys general offices, and governorships all over the country, all in preparation to execute a better organized and more comprehensive version of Trump’s post-2020 playbook.

Yet faced with this gathering authoritarian storm (which has scholars of democracy absolutely flipping out), narrow Democratic majorities in the House and Senate have thus far failed to enact a single meaningful reform.

They haven’t been able to convince Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) to eliminate the Senate’s filibuster rule to make it possible to legislate with simply majorities. They haven’t secured voting rights under assault in state after state. They haven’t outlawed the kind of gerrymandering that has allowed Republican Parties in closely divided states to entrench themselves more or less permanently. Bipartisan talks to reform the Electoral Count Act have commenced, but they are far from guaranteed to succeed. More aggressive reforms to eliminate the GOP’s counter-majoritarian advantage — like statehood for Washington, D.C. or Supreme Court expansion — are either dead on arrival in the Senate or still considered too escalatory to be viable.

Elected Democrats apparently continue to delude themselves into thinking that the handful of Republicans who refused to go along with Trump’s plot can convince GOP voters of Biden’s legitimacy; that there is no organized conspiracy to steal elections; and that the corpse of the Reagan-era GOP can be reanimated. They seem not to see the broader menace of GOP authoritarianism as worthy of urgent attention and don’t want to risk alienating former or wavering Republican voters in the suburbs. They’ve erroneously convinced most Democratic voters the problem is inadequate protection of individual voting rights rather than a systemic, one-way assault on all of the institutions of democracy by the Republican Party of the United States and its state affiliates. Having won power in 2020, they are incapable of seeing how they might be prevented from ever winning it again.

That elite failure is why only 35 percent of Democratic voters believe the existence of American democracy faces a “major threat” — and why 2021 was a lost year for American democracy, one in which we hurtled closer to a constitutional crisis that could tear the country apart.

Of course, that crisis is not preordained. Republicans could win fair and square in the next two elections. Or Democrats could win so convincingly as to make it impossible to exploit legal loopholes to overturn the results. But there have been four extremely close presidential elections this century, and there’s no particular reason to think the next won’t be another.

And if it is, and if American democracy is lost to a Republican plot, it could be gone forever. We’ve been waiting a decade for this GOP fever to break. If we keep on waiting, we may be consumed by it instead.

Tomorrow marks a year since the outgoing president of the United States instigated a mob of his most fervent supporters to sack the Capitol building, where they set about taking selfies, occupying offices, and hunting members of Congress as part of an ultimately unsuccessful — yet still quite damaging — effort to overturn the results of…

Tomorrow marks a year since the outgoing president of the United States instigated a mob of his most fervent supporters to sack the Capitol building, where they set about taking selfies, occupying offices, and hunting members of Congress as part of an ultimately unsuccessful — yet still quite damaging — effort to overturn the results of…