Paul F. Eckstein
About one year ago, a close friend begged for reassurance that, with Donald Trump having lost the 2020 presidential election, Joseph Biden would peacefully be sworn into office; the Republican Party would accept Biden as president; and all would be right with the world.
Being a person of limited imagination, I told my friend not to worry.
How wrong I was.
We are in greater danger now, not less
As we take account of the one-year anniversary of the bloody Jan. 6 attack on our Capitol, our Constitution and our democratic form of government, we cannot forget that just a few patriots stood between a president desperate to retain power at any cost and the constitutionally required transition of power.
To paraphrase a Yeats poem, the worst were full of passionate intensity, but the center held.
What would I tell my friend today? Certainly not that we are beyond the point of danger of our republic becoming an autocracy.
We are in greater danger, dear friend. Only now I realize it. As David Plouffe, manager of Barack Obama’s 2008 campaign, recently said: “it is a coin flip” whether in three years we will have a functioning democratic republic.
As if leaving our children and grandchildren an uninhabitable planet were not enough, we are on a knife’s edge of also leaving those who follow us a Hobbesian world.
It began when we demonized the other side
How did this happen?
First, much of it goes back to Newt Gingrich becoming Speaker of the House of Representatives in 1995 by demonizing those on the other side of the aisle.
President Clinton and the Democratic members of Congress were no longer the loyal opposition to be defeated in what passed for free and fair elections; they were the mortal enemy to be shamed and metaphorically killed on the political battlefield, even if that required shutting down the federal government.
Then, we lost the idea of objective truth
Second, objective truth became a scarce commodity. Perverting Sen. Patrick Moynihan’s dictum that “Everyone is entitled to their own opinion, but no one is entitled to their own facts,” too many of our political leaders were inventing their own facts – none more so than Donald Trump, who rode to power on the lie that Barack Obama was born in Kenya, and therefore not entitled to be president.
How clever it was of Obama’s parents, knowing that he would run for president in 2008, to announce his birth in the Honolulu Advertiser in August, 1961.
The truth was on life support, having been starved of oxygen by millions of messages on social media. Donald Trump snuffed out whatever breath it still had, telling more than 30,000 lies while in office, a stunning 20 lies a day.
GOP told Americans not to trust elections
Third, when truth died, so did Americans’ belief that the folks purportedly elected to office really received the most votes. The Republican Party had for decades sown the seeds of doubt that our elections were reliable.
Trump in 2016 put a thick layer of fertilizer on those seeds, claiming that millions had fraudulently voted for his opponent. It was not enough for Trump to have won the Electoral College in an “historic election.” He needed to explain away his having lost the popular vote by four million votes. Lie told. Election fraud sold.
Memorably, Trump began his presidency with the demonstrably false claim that the crowd at his inauguration was larger than the crowd at Obama’s inauguration, showing that no lie was too small for him.
That was only the beginning. In the months before the 2020 presidential election, Trump repeatedly charged that if he lost, it would be because millions of illegal votes had been cast, this time through mail-in ballots.
It was one thing to call the fairness of the election into question before it took place, but quite another to inspire the Jan. 6 insurrection and to meticulously plan how to remain in office for another four years.
Will Congress muster the courage to end this?
But a funny thing happened on Jan. 6. The republic was saved by a few members of Trump’s own party who would not be bullied into overriding the will of the people. As Yeats said, the center held.
Fourth, and now most seriously, Trumpists (who are the majority of a once-proud Republican Party) are carrying out a well-conceived and well-coordinated plan to make voting more difficult and to entrust the counting of votes to unprofessional partisans whose loyalty to Trump and not the Constitution.
The story is told that when Benjamin Franklin left Independence Hall on Sept. 17, 1787, after the founders had adopted the Constitution, a woman approached him and asked: “Dr. Franklin, what kind of government have you given us?” Franklin answered: ”Madame, a republic, if you can keep it.”
Can we keep it? The answer to that is a decided maybe. A good place to start would be to pass federal legislation protecting the right to vote and putting an end to the efforts of various states to “stop the steal.”
To do so, 10 Republican senators will need to muster the courage that has so far been lacking, or the Democrats must elevate their commitment to majority rule over their preference for an extra-constitutional procedural rule that we commonly refer to as the filibuster.
Are you listening, Sen. Sinema? Time is running out.
Paul Eckstein practices civil litigation in constitutional and political law, among other areas, at Perkins Coie in Phoenix. He is also an adjunct professor of constitutional law at the Sandra Day O’Connor College of Law at ASU. Reach him at PEckstein@perkinscoie.com.
