Mike Lee and a Little Light Treason

The public doesn't care enough about anti-democratic threats

Here are some things that are true about America.

Our democracy is eroding.

It keeps getting worse because the people attacking democracy face no real punishment.

It could get a lot worse.

Simulation of Utah Senator Mike Lee in a functioning democracy

Take the example of Senator Mike Lee. New evidence shows that Lee had been in contact with the Trump administration, advocating to find ways to reverse the outcome of a free and fair election that Trump clearly lost.

In any functioning democracy Lee’s career would be over.

But it’s not.

Lee, an avowed constitutionalist, should resign.

But he won’t.

His party should expel him.

But it won’t.

Utah voters should elect someone else.

But they won’t.

Why? Ultimately not enough of them think Lee did anything wrong, or at least so bad to upend Lee’s career. It might be a little embarrassing. But what’s a little light treason between friends?

The anti-democratic faction have faced no real punishment

How do I know nothing will happen? Because we learned a couple of weeks back that the wife of a Supreme Court Justice was pushing the White House to adopt a maximalist coup position. And nothing happened.

Because we found out a week ago that the son of the President tried to do the same. And nothing happened.

Because we keep learning that other elected officials, like Ted Cruz, were much more deeply involved in trying to orchestratre a reversal of the election than previously understood. And nothing happened.

Because John Eastman, one of the legal impresarios behind Trumps efforts to overturn the election, was in Wisconsin to talk to political leaders there about overturning the 2020 election just a month ago. The goal is to set a precedent that can be used in the future. In this, Eastman is an example of how the coup plotters have learned from 2020, and are redoubling their efforts, chiefly by taking control of both local Republican Party positions, and the machinery of elections at the state and local level. While Eastman has been the focus of the January 6th Commission, it does not seem to be slowing his efforts. The most significant punishment he has faced thus far came from the American Political Science Association, when it downgraded a panel he was to present on at their annual meeting from an in-person to a virtual meeting.¹ So why stop?

We learned a couple of days ago that the Senate Majority leader knew much more about Trump’s anti-democratic plans than he previously admitted, and while he did not support the attempted coup (for that is what it was), he did nothing to oppose it. Barely a ripple in response.

How many Republicans openly opposed an attempted coup in America? A lot fewer than the number that supported it. The same day that a mob attacked the Capitol, 147 Republicans voted to overturn the election, consistent with the mob’s wishes.

And nothing happened. No punishment, no accountability.

Finally, I know nothing will happen because the political leader who orchestrated the false claims of fraud, and still demands the 2020 election be overturned, remains the unrepentant leader of the Republican Party, the frontrunner for it’s 2024 presidential nomination, and the most sought-after endorsement in his party. Even after attempting a coup, the Republican Party stuck with Trump.

It’s hard not to conclude that democracy is ultimately less important to these people than power. Or perhaps, they truly believe the false claims of mass fraud. But motivated reasoners can persuade themselves of pretty much anything.

Regardless of the reasons, it’s increasingly clear that American democracy stands on much weaker ground than we thought. Not only are some people happy to further undermine an already imperfect system of representation, they face no real consequences for doing so.

Formalism as the anti-democratic means

The example of Lee also tells us something about how the most potent anti-democratic practices take form in America. We might label it as “formalism”: the idea that anti-democratic action must offer some nod to the rules of the game, even if it is completely upending the intent of the rules, or rewriting the rule book.

Hence, the obsession with finding alternate delegates, or the effort to endow Mike Pence with legal powers to overturn the election. Somehow, they believe that if they can end democracy on a legal technicality, it’s ok. They seek the same ends as the January 6th insurrectionists, but more politely, wearing a suit rather than a MAGA hat, holding a lawyers brief rather than a can of mace. Formalism as an anti-democratic mode fits with survey evidence that show that Republicans value following the law as a civic norm, and thus prefer to see their attacks on democracy to be dressed in legalisms.

In some ways, this commitment to formalism is worse than the deluded who believe the election was stolen from them. Constitutional lawyers like Lee and Cruz do not see the constitution as some guarantee of democratic rights, but as a text that will, with sufficient torture, offer up a legal formulation for them to do what they want, and damn the voters. Lee, for example, has been clear that he does not see the United States as a democracy, and so presumably does not think he has violated his oath to the constitution by betraying democratic principles.

Mike Lee @SenMikeLee

We’re not a democracy.

Since they are not going anywhere anytime soon, Lee and Cruz can spend the rest of their public lives looking for other opportunities to implement their anti-democratic vision. The system has not expelled them for their actions, and thus they remain, emboldened.

A five-alarm fire and a one-alarm response

Earlier this week Thomas Edsall of the New York Times summarized the views of a number of scholars who study governance, including myself, about the state of American democracy. The outlook was grim.

Some noted that in a sharply polarized polity, there is little reason to expect that voters will punish members of their own party for anti-democratic actions. One analysis estimated that “only 3.5 percent of voters realistically punish violations of democratic principles in one of the world’s oldest democracies.”

In other words, not enough Republican voters will punish Republican candidates for anti-democratic action. The result is that the direct electoral cost of anti-democratic action is low. Thus we are relying on politicians themselves to maintain democratic norms, which increasingly looks like a bad bet.

One part of our email exchange did not make the final cut of the published piece. Edsall asked me to what degree, if any, Democrats bear some responsibility for Republicans and conservatives undermining democracy. Here is what I wrote:

You can perhaps blame Democrats for losing elections, but not for the shift toward authoritarianism that Republicans have made. For example, it would feel odd to argue that the opponents of Orban in Hungary are responsible for the anti-democratic turn there. One could fault Democrats for strategic mistakes such as neglecting rural voters, but it's hard to feel confident about the security of a democracy if it depends on one party not losing elections.

Maybe the January 6th Commission will save us. Or Merrick Garland. Thus far, the voting public has not shown itself willing to vote for democracy. All signs suggest that they will soon hand power back to the party that will use this power to put a halt to any investigation of the attempted coup it engaged in, and pave the way for the return of the coup leader.

The attack on American democracy by one of the two main political parties in America should be the dominant theme of our politics right now. It’s not. It’s a five alarm fire generating a one-alarm response. I don’t know what can fix this dynamic. But we should stop assuming it will fix itself. If you like living in a democracy you should oppose the people with a record of trying to overturn elections.

While such opposition still matters.

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1. I may be overstating this a bit. Eastman did retire from his law school job at Chapman University, but facing pressure from students. Some employers were troubled with employees moonlighting as coup organizers. Similarly, Trump lawyer Cleta Mitchell resigned from her law firm after it was revealed she had sat in on Trump’s efforts to find new votes in Georgia.