I’ve long argued that our two parties are characterized by a yawning audacity gap when it comes to almost everything in politics: Republicans are the party of “Yes, we can,” while Democrats are the party of “Maybe we shouldn’t.”
As the GOP understands well, there is little risk of a public backlash over procedural maneuvers such as refusing to consider the nomination of a Supreme Court justice, or filibustering every bill of greater consequence than the renaming of a post office, or gerrymandering districts so ruthlessly that Republicans can hold on to power even when they’re wiped out at the polls.
It even applies to scandal: When a Democrat gets indicted or caught with a prostitute, he usually resigns immediately, slinking off in shame. A Republican in the same situation (see here or here or here) calls the whole thing a liberal plot and proudly runs for reelection, often successfully. They realize that whatever the controversy is, there will be a few stories in the paper that most people won’t bother to read, and the whole thing will blow over. What matters — all that matters — is winning.
But there are times when the implementation of that principle is manifested in actions so appallingly contemptuous of every principle of democracy that the public just might take notice. What’s happening right now, most notably in Wisconsin and Michigan but in other states as well, is a test. Republicans who suffered defeat at the polls are using lame-duck sessions in state legislatures to overturn the will of the voters and limit the powers of newly elected Democrats, unless public pressure grows so great in opposition that they back down.
Here’s what they’re up to:
- In Wisconsin, Republicans used an extraordinary gerrymander to hold on to 64 percent of seats in the state assembly despite the fact that Democrats won 53 percent of the popular vote. They are now using that majority to attack the authority of the newly elected governor and attorney general, both of whom are Democrats. Their legislative measure would scale back the governor’s power in multiple ways, and would allow lawmakers to replace the attorney general with taxpayer-funded private attorneys. The latter is an obvious attempt to prevent the state from withdrawing from a lawsuit that seeks to overturn the Affordable Care Act. They are also seeking to drastically cut back early voting, which will likely hurt Democrats.
- In Michigan — where Republicans also used their gerrymander to retain control of the state legislature despite winning fewer votes than Democrats — Republicans are responding to a Democratic sweep of statewide offices by giving the legislature the ability to overrule the attorney general on state lawsuits and take authority over campaign finance regulation away from the secretary of state. They are also considering a bill to cut off voter registration 14 days before every election, in effect overruling a same-day registration initiative voters just passed.
- In Ohio — where Republicans held 12 of 16 congressional seats in 2018 despite only narrowly winning the overall popular vote — voters overwhelmingly passed a ballot initiative to turn redistricting over to a bipartisan commission. Legislatures responded by proposing a new law to make constitutional amendments more difficult to get on the ballot and requiring them to gain a supermajority to pass.
- According to Governing magazine, “In Florida, there were rumors prior to the election that Republican legislators were preparing to strip the governor of some powers if Democrat Andrew Gillum won.”
This is all following the lead of Republicans in North Carolina, who responded to the election of a Democratic governor in 2016 by moving quickly in a lame-duck session to limit his powers in a variety of areas. The real genesis of these kinds of tactics, however, was the dispute over the presidential election in Florida in 2000, where Republicans employed a variety of unprecedented tactics, from procedural moves such as a voter purge to extralegal incidents such as staging a riot to intimidate local election officials into ceasing the counting of votes. Florida 2000 taught them that it didn’t matter whether they acted ethically or legally as long as they came out on top. There would be no consequences.
There’s something else important to understand about that historical precedent, because it’s going to come up again soon. The 2000 election concluded when five justices on the Supreme Court issued a ruling that ordered the counting of votes to cease, thereby handing the election to George W. Bush. The Bush v. Gore decision was so nakedly unjustifiable that the conservative majority inserted a sentence saying that its ruling was “limited to the present circumstances” and therefore couldn’t be cited as precedent in the future, essentially admitting how cravenly partisan the conservative majority was being. But the real message was: We’ve got the Supreme Court, so we get to do what we want.
And here’s what they’re going to do. All over the country, Democrats are responding to GOP gerrymandering by pushing for the creation of nonpartisan redistricting commissions to come up with fair district lines. In 2015, the court upheld those commissions in a 5-4 decision in which Anthony Kennedy joined the liberals to make a majority. Now that Kennedy has been replaced by Brett Kavanaugh, it’s almost certain that the court will declare that only state legislatures may draw district lines, giving a green light to Republicans to gerrymander to their hearts’ content. They will also almost certainly validate even the most extreme partisan redistricting, safe in the knowledge that Republicans have more opportunities — and more willingness — to use it.
And they have to if they’re going to hold on to power, as the 2018 election showed. There is no greater threat to Republican power than full, free and fair elections, where it’s easy to register, everyone’s allowed to vote, everyone’s vote counts and both parties have an equal chance to win. If that were actually how things worked, the GOP would be routed, as the party understands well.
In fighting to keep that from ever happening, there’s almost nothing Republicans won’t do, and they’re pretty sure they can get away with it. As Wisconsin Senate Majority Leader Scott Fitzgerald put it, “It’s real kind of inside baseball, kind of legislative stuff that it’s hard for me to believe people will get too excited about.”