UPDATE: Moves towards packing the Supreme Court must now be added to the list of reckless government actions under these dangerous circumstances.
Time Magazine recently published an article entitled “The Secret History of the Shadow Campaign that Saved 2020.” It detailed efforts by a self-described “conspiracy” or “cabal” that involved the corporate juggernauts of the U.S. Chamber of Commerce, major law firms, activist groups, and both Republican and Democratic governors and other politicians. Their efforts as detailed in the article were numerous, and involved “changing laws and rules” in several states before the election. Their efforts, they say, “fortified” the election and ensured the defeat of Donald Trump.
The so-called “cabal” confessed to nothing criminal, but they did confess to maneuvers that were unconstitutional. In particular, the changing of “laws” was often done in a way that did not involve state legislatures. Under the Constitution of the United States, state legislatures alone determine the manner of elections. What happened instead was that activist groups would sue state executives – usually Democrat, but Republican in the case of Georgia – and those executives would agree to do what the activists wanted. A court would bless this arrangement, and voila!, election laws were changed unconstitutionally or illegally in ways designed to ensure the election of the Chamber of Commerce’s preferred candidate.
This is not the first time in American history that corporate power has managed to find ways to determine elections according to their preference. However, in this case the bypassing of the legislatures has severely eroded America’s democratic legitimacy. This is both because the legislatures are the democratic element of American government, and because the particular “reforms” they have unconstitutionally instituted make elections inherently untrustworthy. Power is shifted, perhaps permanently, away from individual American voters. Power is shifted towards those with the organizational wealth and power to create votes (and perhaps voters) using behind the scenes methods that are secured only, at best, by the honor system.
This essay is not an attempt to incite insurrection, but a warning about the dangers of the present course and a call for prudence by government officials especially. The loss of legitimacy can be repaired with election reforms, coupled by a commitment by the government to respecting the rights that the citizens themselves believe the Constitution protects. However, the newly “elected” government is moving rapidly against the legitimating principles found in the Declaration of Independence. Specifically, the Declaration states that governments are instituted to protect the natural rights of citizens. These rights are commonly understood to embrace at least those rights found in the later Bill of Rights, the first ten amendments to the U.S. Constitution.
Governments that become destructive to the end of protecting the rights of the citizens are legitimately subject to being “altered or abolished” by the people, according to the Declaration of Independence. The people who get to decide if those fundamental rights are being violated are not lawyers nor judges, but the citizens themselves. It is citizens’ opinion of what their rights are that matters in this context, and it is that group of opinions that the government needs to be prudent about not violating. This is because the citizen is an officer of the state, the one in whom the Declaration of Independence describes as invested with the power to decide when governments have violated their obligation to protect the citizenry’s rights.
The new government, because of the loss of democratic legitimacy inherent in the unconstitutional election, is operating from a position of greatly diminished legitimacy versus any recent government of the United States. Yet far from being wary of the dangers of decreased legitimacy, it is moving rapidly and aggressively against rights secured by the Bill of Rights – for example, religious free exercise is endangered by the recent Equality Act, freedom to petition the government for a redress of grievances by treating the opposition as a kind of ‘domestic terrorist insurgency,’ second amendment rights are endangered by forthcoming gun control bills, fourth amendment rights by proposed new domestic spying targeting ‘extremist groups,’ and eighth amendment rights by aggressive bail denial.
Under these circumstances, the United States government is in real danger not of confronting crazed extremist groups like the ridiculous Q-anon movement. The danger is that the government’s actions could provoke a real, deep, and philosophically legitimate revolution driven by tens of millions of Americans outraged both by the unconstitutional moves to sway elections, and the subsequent violation of the very natural rights the government was established to secure as tens of millions of citizens understand those rights.
THE POWER OF VOTING RIGHTS DEPENDS ON CONFIDENCE IN ELECTIONS
Ironically, many of the people behind this self-described “cabal” probably do really believe they are friends of democracy. They talk in terms of ensuring voting rights, and some of those involved might even actually believe that their partner organizations are devoted to making sure that the votes of real American citizens who otherwise would not vote get cast. Others, who support the effort but were not part of it, may also believe that these efforts are defensible as voting-rights, pro-democracy efforts.
Justification for that belief is understandable. Republicans do sometimes sound as if they intend actual voter suppression as a path to victory, and Democrats widely believe this to be the intention of Republicans. This can make even reasonable statements sound like a declaration of evil intent. Speaking before the Supreme Court on a voting rights case just this week, Marvin A. Carvin stated that overturning an Arizona law was important because the law puts Republicans at a “competitive disadvantage relative to Democrats. Politics is a zero-sum game[.]” That quote was widely reported, and on its face it would seem to be aimed at voter suppression. What was less widely reported was that Carvin went on to add that “every extra vote [Democrats] get through unlawful interpretations [of this law] hurts us.” [Emphasis added.] As journalists are almost universally Democrats, this was reported as a Republican confession rather than as an unexceptional claim that unlawful cheating produces a competitive advantage – that is, generally, the point of cheating.
The question of whether or not the particular practice he was describing amounts to an unlawful interpretation, let alone cheating, is a matter for the court. However, voter suppression has at points been a problem in American history, as has the outright disenfranchisement of whole classes by race or sex or by some proxy for these, and all these things ought to be rejected. All American citizens who are lawful voters should have access to the ballot, and there should be care taken to ensure also access to the necessary forms of identification and procedures to cast a secure ballot. Strategies that aim to disenfranchise voters suspected of holding different political views are obviously wrong.
Nevertheless, voters’ legitimate power is diluted by strategies that enable voting fraud. This happens in two distinct ways, one of which does not require actual fraud to occur but occurs even if there is only the perception that fraud would be easy to effect. In this case, even a legitimate election may cause a loss of democratic legitimacy for the resulting government, because the legitimacy of the government lies in the eyes of the citizenry. If there is sufficient appearance of dishonesty or fraud, even if in fact there was little fraud the people may reject the government. In that way, voters on the winning side will be denied the power of their votes because the government they voted for will be unable to govern effectively. Protecting the clear, unambiguous legitimacy of the election is a necessary condition for using the vote effectively as a path to governing.
The second, obvious, way that voting fraud dilutes the power of the legitimate ballot is that every actually fraudulent vote cast effectively disenfranchises one of the legitimate voters who cast their ballot for the opposing candidate or decision. Election security is important exactly because it protects the power of legitimate ballots.
To what degree were fraudulent ballots deployed in the last election? Time has told that they violated the constitutional role of the legislature, and time will tell about the ballots. Early lawsuits fared poorly, but none were criminal cases that were backed by a police investigation using police powers. Most of the lawsuits were dismissed on grounds of standing, meaning that the early cases were not actually heard in court.
Conspiracies can’t be hidden forever, and at this point new evidence appears every day that highlights voter concerns. A House of Representatives hearing in Wisconsin revealed that Democratic activists were given keys to the room in Green Bay where absentee ballots were stored in the days leading up to the election. What did they do in that room with those ballots? Time will tell. The Georgia Star’s open records law investigation so far suggests that perhaps 400,000 mail-in or drop-off ballots in Georgia alone lack legally required chain of custody documents. Also in Georgia, a state superior court judge is currently considering unsealing some absentee ballots for review, which could begin to uncover any fraud using such ballots. The Georgia Secretary of State has filed papers asking that ballots not be made available for review by independent authorities, suggesting anything but a desire for transparency by the government. In Arizona, an independent audit in the most populous county has been authorized and will be conducted.
Some thirty lawsuits have been filed in Georgia alone after footage from Atlanta appeared to show poll watchers being dismissed and, afterwards, suitcases full of ballots being produced from hiding under tables to be scanned in the absence of poll watchers. The Georgia Secretary of State’s office dismissed the matter. However, that same Georgia Secretary of State was found to have released a deceptively edited conversation with then-President Trump, failed to correct the record when it was used for an article of impeachment, and whose office appears to have attempted unsuccessfully to delete the recording. Observers have every reason to conclude that he was acting in accord with this self-described bipartisan Chamber-of-Commerce funded conspiracy to sway the election. Similarly, a court has already ruled that Michigan’s secretary of state violated the law in changing election rules.
Some argue that fraud is a not major issue in American politics, and studies treating earlier elections have occasionally claimed that election fraud has been a negligible problem in American elections. That is clearly not always true historically, as we know from the case of Tammany Hall in New York; and it may well not have been true in 2020 even if it has often been true elsewhere. All such studies I have ever encountered have been funded by organizations that are politically aligned with movements to eliminate or weaken election security. This gives rise to the consideration that the studies are not properly disinterested in their results. Confirmation bias in the social sciences is a known issue, and the fact that scientists go into the studies already believing fraud to be a non-issue may very well affect their findings. That assumes that the social scientists were being wholly fair, just motivated by an ordinary human cognitive bias. The confessed intent of those ‘fortifying’ the 2020 elections via rule changes that eliminated ballot security provisions was to defeat a particular candidate. Insofar as similar groups are funding the studies purporting to show that vote fraud is a non-issue, those studies may be just another ‘fortification.’ Voters certainly have the right to conclude there is reason to doubt that these earlier findings apply to 2020, and to support robust investigations into just how far the self-confessed “conspirarcy” went.
From a policy perspective, loss of public confidence in elections arising from the appearance of fraud or the obvious ease of fraud can be just as devastating as proven fraud to the citizens’ acceptance of the legitimacy of the government. These security flaws can certainly lead to expanded fraud in the future, too, a weakness that threatens the system as a whole. A far better policy would be to protect the ballot by actively pursuing enfranchisement, secure registration, and also secure ballots. In that way the democratic power of the vote is maximized, and the legitimacy of the resulting government is strengthened.
A DEMOCRACY – AND A MONARCHY, AND AN ARISTOCRACY
The vote is not the only democratic institution in our government, nor the one most badly damaged by the self-proclaimed conspiracy. I am far from the first to point out that the Founders were careful students of the Classical political tradition. This includes Aristotle’s Politics, which explained the difference between three basic systems of government and how they become unstable. This happens in two ways. A government might become corrupt, as when “rule by one” turns from a virtuous monarchy into a vicious tyranny. Or it might be that the excesses of one mode will lead to it being overthrown to form another, as when a democracy’s tendency to vote the people wealth from the wealthy leads those wealthy to seize control of the government, forming an oligarchy.
The Founders’ response to this was to set up a government that included all three of Aristotle’s forms, in a way that each form checks the others. The executive branch is ‘rule by one,’ with the President or a Governor exercising sole authority over that branch. The courts are ‘rule by a few,’ with only individuals of special training and education being allowed to exercise real authority – judges and Supreme Court Justices. The legislatures are the democratic form, ‘rule by the many.’ The legislatures, both Congress and the state legislatures, are the true seat of democratic legitimacy in our system of government.
What the Time magazine “conspiracy” conspired to do was to disable the legislatures in their core constitutional function. In this, the self-described conspirators had the willing participation of both of the other forms of government: governors and courts. The method used by the conspiracy was to file lawsuits against willing governors, who would then propose to ‘settle’ the suit by acting as if the law was something other than the law that the legislature had passed. A court would then act to bless this arrangement, and the governor would proceed to act as if the law had been changed.
Our constitutional order only permits legislatures to change the laws. Further, the Constitution of the United States specifies that state legislatures will determine the manner of elections. Amending the Constitution requires a supermajority of consent by the legislatures. Not only does each house of Congress have to consent by a supermajority, but then the matter goes to the states for ratification. A supermajority of state legislatures also have to agree before such a change can constitutionally be effected.
The consequence of the 2020 conspiracy was that the ‘rule by one’ and the ‘rule by a few’ branches got together to steal the lawful power of the ‘rule by the many’ branch. They then used this power, in league with a conspiracy funded by major corporations, to undermine the ballot that allows ordinary Americans their chief democratic participation in our system. The result is that the current government of the United States has no democratic legitimacy. Both the legislatures and confidence in the security of our ballots were compromised. Both methods of ensuring democratic legitimacy were violated, and the United States Chamber of Commerce admitted to Time magazine that it paid for it all.
CORPORATIONS AS A DANGER TO FREE ELECTIONS
This is not the first time that corporate power has threatened American democracy. Keeping the corporations from capturing the government is a permanent difficulty facing us as a self-governing people. Consider how an early American election would have functioned, and why it would have felt so secure and legitimate to the voting community. Generally early elections were done in person, in a town-hall setting. Communities were small – even in cities, far fewer people lived in more well-established neighborhoods, whereas in rural areas and small towns ‘everyone knows everybody’ often even today. Thus, when they came together to vote, everyone would know that everyone else was a member of the community in good standing and capable of casting a legitimate vote. There was no danger of filing a vote in the name of a deceased citizen, because votes were in person and public. Strangers and those who weren’t really part of the community couldn’t show up and vote, because they would be recognized as not part of the community. Everyone would vote in public, the votes would be counted, and the result both known to all and indisputable.
A problem with this system was that the public nature of the vote allowed those with wealth and power to sway it to their ends. For example, a mine owner might employ half the town directly, and another part of the town might rely on his business to maintain their own businesses. Someone who voted for ‘the wrong guy’ could easily find himself fired, allegedly for another reason; or a shop owned by such a voter might suddenly be out of much of its business. As dramatized in The Man Who Shot Liberty Valance, gunmen or strike-breakers might be sent by the wealthy to threaten the voting public into voting their way.
Corporate power magnified this danger of the wealthy exploiting their inequality in wealth to buy themselves an inequality in governance. A general principle for healthy government is that corporate power and government power must never be allowed to align, in the same way that our “check and balance” system was supposed to maintain a separation of powers between the government branches. This is because states and corporations are the two most powerful organizations to exert power. If the powers align, the interests of ordinary people are trampled. The people would be badly served by a court system that blessed off on any executive use of police force against them, no matter how egregious. The people’s interest is in having the executive power controlled by the judicial power, not aligned with the executive power. Similarly, the people’s interest is always in having a government that is opposed to corporate power, not aligned with corporate power.
This is especially important in the United States, as corporations can exert forms of power against ordinary citizens that the government is forbidden to use – forms like censorship. If the powers align, the corporations will simply censor the people for the government, thus effectively bypassing the first amendment protection. Likewise, corporations can pass information they know about citizen communications via email or cell phone to the government just because the government asks them to do so. This effectively bypasses the fourth amendment protection requiring the government to obtain a warrant to invade citizen communications. Corporate power aligned with government power is always a danger to the people, and must be hotly opposed at all times.
Our ancestors succeeded in breaking the corporate control of the ballot. The result was the institution of the secret ballot, by which Americans were able to protect themselves from being pressured by corporate wealth. In this way, Americans could vote to unionize and to elect political officers who felt themselves to be the servants of the people instead of the company.
Unfortunately, the secret ballot also enabled a lot of cheating. Because votes were not publicly cast, now cheating shifted to the question of ‘who counts the votes,’ as exemplified by New York’s Tammany Hall. (It is worth noting that one of the “fortifications” described in the Time piece was the recruiting of “poll workers” who counted the votes.) You could also use the registrations of the dead or those who had moved away to cast votes, unless a recent purge of the rolls had cleared such names. You could also invent voters by filing false registrations, and then filling out false ballots under the fake names.
Such efforts would require a lot of organization and funding to be effective, as well as a lot of legal support to avoid challenges in the courts. Yet it is just such an alignment of funding and organization and legal support that the Time article describes, and exactly for the purpose of ensuring the desirable outcome in an election.
As above, time will tell if they overstepped criminal laws as they are already proven to have overstepped constitutional law. Even if they did not, though, the appearance of impropriety is enough to destroy public confidence that our system of government has not been captured by an oligarchy of corporate money and corrupt politicians. Further, the elimination of election security measures means that cheating in the future is suddenly easier than ever.
THE DECLARATION OF INDEPENDENCE’S STANDARD FOR LEGITIMACY
As the example of the secret ballot shows, however, the fact that unconstitutional or corrupt acts have swayed an election does not always lead to a corrective revolution. Sometimes lawful reforms, such as the secret ballot, can come about that restore confidence in the democratic legitimacy of the system.
This is what the Founders said to expect. In the Declaration of Independence, they said that normally even abuses will tend to result in patient attempts to repair the system. “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes,” the Declaration says. “[A]ll experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
Yet the Declaration also warns in the very next sentence that “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce [the people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Currently the United States Congress is moving to ensure that the unconstitutional acts of the previous election, brought about by this so-called ‘cabal,’ shall become a long train of future abuses. House Bill 1 (HB1) is an attempt to seize control of elections from the states, which the U.S. Constitution invests with power over those elections. This bill would enshrine in law all of the election security violations that undermined public trust in the legitimacy of the government. Whether or not HR1 itself is constitutional is an interesting discussion with plausible positions on both sides, which the courts would have to address should it pass. The problem is that it would overturn the positions of all the remaining states, while codifying the changes forced on the already-avoided state legislatures. This would mean that voters in those states who are trying to use their state legislatures to fix the unconstitutional action would have the option taken away from them, and a Federal law imposed instead. That would change the unconstitutional acts of 2020 into “a long train of abuses” rather than a “transient” problem that could be fixed by their elected state representatives.
One could of course sue, but that sort of “lawfare” does not address the basic problem of having undermined the state legislatures. Republican groups did not attempt to overturn these changes prior to the 2020 election, and courts have repeatedly said that it is too late to do so after the election. The bigger point is that courts are not the right forum. The legislature had already spoken; courts participated in changing the law in spite of them, and are now asserting the power to decide when and whether the law will be changed again. That a court might ‘rule the right way’ from the perspective of an aggrieved voter is beside the point. The point is that the courts have stolen their right to self-determination and replaced it with an alternative that empowers courts, governors, activists, and lawyers to decide the laws governing elections – but not the people’s chosen representatives, in the peoples’ legislatures.
There is another concern brought forward by the Declaration of Independence. While reform remains a possibility for addressing the conspiracy’s harm to the democratic legitimacy of the United States, the government elected in this suspicious manner is acting as if its legitimacy were of no concern. The government is moving aggressively against the natural liberties that its own foundational documents point to as its reason to exist. The Declaration of Independence holds that the purpose for which any government is instituted is the preservation of the natural rights of its citizens. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,” it says. Also, “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it[.]”
The present Congress is heedlessly proceeding against the very rights whose protection the Declaration of Independence warns is their whole justification to exist. First Amendment religious liberty and free exercise is imperiled by the Equality Act, which expressly forbids raising religious liberty concerns as a defense in court. Various violations of the Second Amendment have been proposed and are under consideration. New ‘domestic terrorism’ laws under discussion would threaten the privacy protections of the Fourth Amendment, the protections for the accused provided by the Fifth Amendment, and the right to avoid excessive bail guaranteed by the Eighth.
Of course it is understood that different Americans have different views of exactly what is protected by these amendments. There are clarifying mechanisms in the Constitution’s Article V that offer intense democratic legitimacy to those who want to establish that a long-held or widely-held view of a constitutional right is not the correct view. For example, gun control advocates facing citizens with strong views of the Second Amendment could pursue a constitutional amendment that, if ratified, would show that the vast majority of Americans disagreed with the older view. That would be a “prudent,” to use the Founder’s term and Aristotle’s, way to proceed with intense differences on these basic questions on core constitutional rights.
Democratic officials may object that this prudence robs them of a rare opportunity to pass their biggest wish-list items, given that they have momentary control of the three elected parts of the Federal government. There are two relevant counterarguments. The first is that a lack of prudence that results in a widespread rejection of Federal authority will prevent the successful enactment of those parts of their agenda in any case. If the Federal government as a whole is widely rejected by the citizenry, ‘holding power’ in the elected Federal government will become a mere paper tiger. Maintaining the power of the Federal government requires navigating this crisis in such a way that the citizenry does not reject its authority.
Second, much even of the most ambitious aspects of the Democratic agenda does not violate any part of the citizenry’s understanding of its constitutional rights. Forgiving student loans, for example, will be met with Republican objections but not the objection that it violates inalienable constitutional rights. Establishing universal health care likewise will be met with intense objections, but not ones that raise these Declaration of Independence issues. Infrastructure repairs, green policies, really most of the big-ticket agenda items are not touched. Any congressional majority must focus its efforts to be successful, so focusing on these aspects makes it more likely that Democrats will have a successful tenure – without further endangering the stability of the nation.
Currently, however, the current government is pursuing laws violating deeply-held and long-held views of constitutional rights on very bare majorities – in the Senate, on tied votes broken by a Vice President whose election was one of those ‘fortified’ by a confessed conspiracy. By the government’s doing so, tens of millions of United States citizens could easily come to the conclusion that their rights are being illegitimately destroyed. This is exactly the kind of government conduct that the Founders agreed justified a revolution.
No wise – no “prudent” – government would proceed this way while under the cloud of having been elected by a vast corporate-backed and self-described conspiracy. Many tens of millions of Americans doubt the veracity of the last election, and the violations of state and Federal constitutional law are plain for all to see. The only reasonable way to proceed is to abandon aggressive legislation for the present, and instead move to reform the laws to ensure that Americans regain confidence in the system.
If this is not done, the logic of the Declaration of Independence is clear. The government of the United States is in grave danger of creating the philosophical justification for a legitimate revolution against it, and on the very terms of its own foundational documents. It cannot survive if it continues to proceed in this way; and if the Declaration is right, it should not survive. The people are said to have both a right and a duty to replace it under those circumstances.
The previous four years were a time of intense emotion politically, and decisions made in intense emotion are often poorly considered. Those involved in the self-described ‘cabal’ may well have believed they were acting for the good of the United States. Those who have profited from their work by receiving political power doubtless believe in the value of the agenda they are promoting. Many philosophical differences are permissible under our system; indeed, the value of the system lies in its ability to negotiate such differences, so that people of diverse beliefs and values might live in peace.
Yet the present course is not sustainable. It is important for those involved in the confessed conspiracy to alter election laws in an unconstitutional and reckless manner come to realize the harm they have done to the stability of the whole American order. It is important that those in power admit to themselves the volatility of the present moment, and began to act with prudence to restore confidence and stability. There has been much talk about ‘unity,’ but the actions of the present government do not match the words.
If the present course is not changed, tens of millions of Americans may begin to look anew at the founding documents of this country. What they will find there is a philosophical justification for the outright dissolution of the American government, not just a momentary ‘insurrection’ against a proceeding in Congress. If the powerful and the wealthy do not desire this, they need to take heed. The hour is very late, anger among the populace is growing, and the government is behaving recklessly.