The Winner's Curse in an Autocratic Power Grab (a Dorf on Law Classic)
by Neil H. Buchanan
It is a particularly unusual mid-August for those of us in Dorf on Law World, one consequence of which is that my sincere intention to write a new column today fell by the wayside. I therefore offer a Dorf on Law Classic from October 15, 2020. Given the recent Republican primary results, the column seems especially pertinent to our near future.
The Winner's Curse in an Autocratic Power Grab
by Neil H. Buchanan
What
would it be like to be on the winning side of a Constitution-shattering
political putsch? Winning is great, right? Certainly, one would think
that -- at least for those who have no principles other than grabbing
political power by any means necessary -- life would be pretty good on
the other side of a coup d'etat. You enjoy the spoils, and the other
guys eat dirt.
In my new Verdict column today,
I start to address that question by looking at the highest-level
Republican enablers of Donald Trump. In fact, I was looking at only a
subset of that group, limiting my analysis to those who imagine that
they will be president someday. That means that, for the purposes of
that column, I was not looking at Mitch McConnell, Bill Barr, or any of
the others who are abetting Trump's push toward a dictatorship.
There
are, at all times, governors and U.S. Senators (and occasional House
members) who picture themselves as a future president. Some, like Rick
Santorum -- who was defeated in one of the largest ever blowouts of an
incumbent U.S. Senator running for reelection -- were once sorta-kinda
viable, but then they become walking punchlines by hanging on for far
too long. Before they get to that pitiable status (and perhaps even
after), however, all of these people spend their days believing it when
people around them say that they will be in the Oval Office someday.
As
I will explain in a moment, those people are especially misguided in
joining the Trump parade. But my main focus here is to ask what is in
it for everyone else in the Republican Party -- not just the high-level
people who do not have presidential aspirations but the middle-level
politicians who are eagerly looking forward to a post-constitutional
U.S. political system. My assertion here is that they might find
themselves very disappointed by life in a one-party state.
It will help, I think, to summarize the path that brought me to this question. My September 24 Verdict column
was primarily devoted to debunking the now-bipartisan consensus that
Republicans are "tolerating" Trump's excesses because they like what he
delivers: conservative judges and radically regressive economic
policies. The current Supreme Court fiasco is understandably causing
everyone to focus on the judiciary, so I labeled this the "slime for
judges theory," in which Republicans supposedly wince but stay in line
during Trump's never-ending parade of depravities because they get
something good in return: reactionary judges and stroke-the-rich
economic policies.
This is nonsense, I explained, because Republicans could have gotten the quo without paying any of the quid.
Trump's departure would have meant Mike Pence's ascension, so
Republicans could have gotten one of their own -- who, whatever else one
can say about him, would not be Trumpian -- who would have given them
whatever their hearts desire. Once one thinks about it, this is so
obvious that it is amazing that the entire political class seems to
still believe the slime for judges theory.
And recall that slime-for-judges is supposed to explain
something. How, pundits ask, can we explain Republicans sticking with
such an awful person? Answer: They have to, in order to get what they
want. But because that explanation is wrong, we need an alternative
explanation. Mine is that Republicans love what they get by sticking
with Trump even more than what they would get from Pence or any other
standard-issue movement conservative. And what is that extra Trumpian
ingredient? Open bigotry. That is the one obvious way in which Trump
differs from the would-be leaders of America's second-largest political
party. They are all, of course, only too happy to support systemic
racism and enact policies that harm minorities and women, but they have
never had the nerve to do it so openly and gleefully as Trump.
But
I did offer a second explanation, one that can certainly coexist with
the first. Under this view, Republican leaders feel forced by Trump's
grip on their base to go along with him, and they are willing to do so
in order to (unlike, say, former Senator Jeff Flake or former governor
and House member Mark "hiking the Appalachian Trail" Sanford) preserve
their political viability. And they are certainly looking at a stark
choice: The Democrats will almost surely never accept converts who are
conservative enough to have been happy with the pre-2017 Republican
Party, and Republicans will not vote for anyone who resists Trump. The
only choice is between having a political future or not.
Today's Verdict column
spends some time (perhaps more than necessary) strengthening the case
that overt racism is not only Trump's brand but that it is a positive
motivator for his base, rather than a hurdle that they must overcome.
But then I go back to the second explanation from my September 24
column: Racist or not, politically ambitious (and already quite
successful) Republicans in the current situation are in it to seize raw
political power.
As noted above, I focus there only on the people who imagine that they are keeping their hopes alive of one day making that completely deserved
trip down Pennsylvania Avenue to take the oath of office on January 20
after a quadrennial year -- maybe even January 20, 2025! Senators Ted
Cruz, Josh Hawley, Tom Cotton, Marco Rubio, and maybe even the
delusional Lindsey Graham can taste it. Nikki Haley, a former governor
and ambassador, has similarly shamed herself by sticking with Trump to
position herself for a White House run.
But what could these people possibly be thinking? As I wrote today on Verdict,
they apparently imagine that Trump will happily announce (or at least
signal) on January 21, 2021 that he is satisfied to serve a second term
and nothing more, at which point the usual permanent campaign begins
anew, with everyone rushing to diners in New Hampshire and Iowa while
making side trips to the Upper East Side of Manhattan to collect huge
checks, kiss a Koch ring, and so on.
Why
do they think that this will happen? Because it has always happened
that way, and that is how they learned to play the game. Even as they
bust every norm and kick down every door at Trump's demand, they somehow
imagine that politics will continue as before -- except that they will
not have to worry about the general election, in a world where
Democrats' votes have been permanently suppressed. What is not to like?
They
do not apparently take seriously the possibility that Trump will decide
to stay in office for a third or fourth or fifth term. Trump says that
he feels twenty years younger post-COVID, after all. (Would that
require a constitutional amendment? Yes, but why would these people who
cower before Trump think that they would survive politically after
opposing such an amendment?) And even if Trump cannot work out a way to
extend his presidency, why does Ted Cruz or any other traditional
Republican think that Trump will favor them as a successor, when Don Jr.
and especially Ivanka are right there?
Just
as many readers and colleagues once said that my imagination was
running wild as I predicted that Trump would do everything to "win" in
2020 and refuse to leave office, I understand that reasonable people
might be more than a bit skeptical about what I am suggesting here. And
even though I have unfortunately so far been proved right in my
predictions about this year, that does not mean that my prediction of a
Trumpian political dynasty is also foreordained. I honestly think it
is, but I can certainly see ways in which things might not go that far.
Here,
however, I am asking what the other politicians on the winning side,
the people who will never be president (and do not expect to be), might
get out of a continuation of Trump's disastrous presidency. As I noted
above, winning is better than losing, and having power is better than
having none (as the many retiring Republican House members can tell
you). Not just Cruz (who, despite his insufferable ego, might one day
adjust to the idea of never being president) but backbenchers like, say,
Senators Deb Fischer of Nebraska or John Boozman of Arkansas, would
surely delight in being part of a world where their side gets its way
about everything.
But
even if it is pleasant to see your side win a lot, that does not mean
that there are not costs. For one thing, at least a few of these people
might be confused enough to think that slime-for-judges is real, and
they actually care about supposedly conservative principles like limited
executive power, states' rights, or balanced budgets. Endless Trumpism
puts all of that in the dumper. Maybe being able to ban all abortions
and pass must-carry laws nationwide is enough, but how long does it take
to do that (and to gut the safety net while cutting taxes on businesses
and rich people to zero)? A big part of what conservatives thought
they cared about is not in a Trumpian future.
More
to the point, what is there to do in a one-party country, even if you
are a member of that one party? Presumably, the Hawleys and Cottons
would spend their time jostling for position in the Politburo
to stand as close to Trump as possible during photo ops, but even they
will not have any real power, unless and until there is a post-Trumpian
power struggle. The other people in "high office," meanwhile, would
become nothing but dead weight, with no external opposition to vanquish
and no power to shape anything that they were told to rubber-stamp.
A classic "Twilight Zone" episode ("A Nice Place to Visit")
centers on a two-bit hustler who dies and finds himself in his version
of heaven, a casino in which he always wins every bet that is filled
with beautiful women who never say no. He gets bored soon enough, and
he finally ends up so unhappy that he asks to be sent instead to hell.
The big twist? He is in hell already! As always, Rod Serling's
iconic voiceover ends the episode: "A scared, angry little man who never
got a break. Now he has everything
he's ever wanted – and he's going to have to live with it for eternity –
in The Twilight Zone."
I
am not imagining that most (or even many) Republican politicians are
deep enough to understand the irony of that episode. And even those who
might understand it have shown again and again that they will gladly
participate in rigged games. Even being a powerless Republican senator
will surely have its perks. Still, it is not only the political
opposition that loses when a dictator seizes power. Being a politician
who is part of an all-powerful government is not the same as having any
power.
I
should add two further points here. First, I emphasize that I do not
imagine that such considerations would stop any Republicans from helping
Trump stay in power at all costs. Among other things, many of them
(like Trump himself) are probably so shallow that they would never get
bored even when every "win" is a cheat. (Trump brags about cheating at golf,
for heaven's sake.) Second, I am not talking about Republican
politicians "suffering" in any real sense. Awakening to the realization
that one is in a gilded cage is obviously nothing compared to the
actual suffering that Republicans' policies would inflict on the
powerless people who did not support Trump.