We already know the more photogenic part of yesterday’s events in Washington: the Trumpist riot that occupied the Capitol building in an attempt to shut down American democracy. I had some things to say about it yesterday; there’ll be more to come as its repercussions become clearer.
But let’s focus instead on the other part – on the formal proceedings in Congress, before and (mostly) after the occupation – that counted the votes from the electoral college and certified the victory of Democrats Joe Biden and Kamala Harris. For almost a century and a half this has been a pure formality; even when an objection was raised (as in 2005) it was not with any intention of overturning the result.
No so this time. Although, as I noted yesterday, the riot thinned their ranks, a number of Republicans sought to change the result by challenging electoral votes from states the Democrats won. This was a direct attack on democracy: less violent than that staged by the rioters, but fundamentally every bit as subversive.
It was also, as was always going to be the case, every bit as unsuccessful. Republican members of the House of Representatives objected to the certification of the results from six states, but for only two of them (Arizona and Pennsylvania) – not enough to change the overall result – were they joined by a Republican senator, as is required to trigger a debate. The challenge to Arizona was rejected 303-121 in the House and 93-6 in the Senate; on Pennsylvania it was 282-138 and 92-7.
While they are better than they might have been, those numbers are still shocking. A large majority of House Republicans – more than two-thirds of those present, in the case of Pennsylvania – voted to trash a democratic election because it produced a result they didn’t like. There is simply no way to make that look acceptable.
The fact that the opportunity for them existed at all is another consequence of America’s creaky and antiquated electoral system. Because getting all of the electors together in one place would have posed practical difficulties in the 1780s, it’s still not done, so instead of just voting in a single session where the result could be declared on the spot, they have to send their votes to a central location for counting.
And whoever counts them has to have some discretion in case they receive competing returns from rival sets of electors certified by rival state governments (as actually happened in 1876-77). But both the constitution and the Electoral Count Act of 1887 do their best to limit that discretion to the minimum necessary. In this case, there were no competing returns: some self-appointed groups of Republicans in the key states met to cast “votes” of their own, but apparently the national archivist did not even bother forwarding these to Congress.
So the attempted subversion was completely lacking in constitutional warrant. And, as some of their colleagues pointed out, if the Trumpists’ theory of the case were to be accepted it would create a precedent that would be quite likely to work against their interests.
For example, imagine that at the time of the next election the Democrats hold majorities in both houses, but that (as is presently the case) a majority of state delegations in the House lean Republican. In that case, if neither party wins a majority in the electoral college (either because some third candidate wins a seat, or because there is a tie), the constitution envisages that the House, voting by states, should choose the president – giving victory to the Republicans.
But if instead it’s accepted that Congress can decide which votes to count, the Democrats in both houses could simply vote to reject some Republican votes and thereby give victory to the Democrat ticket. And it’s not at all clear that there’s anything anyone could do to stop them. In effect, the United States would have become a quasi-parliamentary system, with the head of government chosen not by the voters but by a majority in the legislature.
Which is very interesting, because it’s where another piece of Republican doctrine also seems to be tending. Until this week, the Republican Party expected to hold a majority in the new Senate. Having lost both seats in Georgia that expectation has been thwarted, but while it held there were clear signals that the Republicans were claiming the right to veto Biden’s cabinet appointments on political grounds.
The constitution provides for such appointments to be made “by and with the Advice and Consent of the Senate” (article II.2), so here they are on slightly more solid ground. It’s possible to argue that the founders of the republic, drawing on the British parliament’s attempts to constrain its monarchs in the 17th and 18th centuries, had in mind a more active role for Congress in the shaping of the cabinet than has actually happened.
Nonetheless, many presidents have taken office with a hostile Senate, and the established doctrine is that they are entitled to have their cabinet appointments confirmed unless exception is taken to the fitness of particular individuals. (Only one has been rejected in the last fifty years, although a few others have withdrawn in the face of criticism.) General political disagreement with the president’s agenda has not in modern times been taken as sufficient grounds.
If the Republicans really did have a more aggressive attitude in mind, that too would be a step towards parliamentarism, in which ministers have to secure the confidence of the legislature. But it would be a bastard form of parliamentarism, since Congress would still not have power to remove either a president or a cabinet secretary mid-term, except by the clumsy method of impeachment.
My view is that parliamentarism is a good thing, and that the US model of complete separation of powers, whatever the arguments for it in the 18th century, now serves the country poorly. But if it wants to make the change it should do so wholeheartedly, which would of course require major constitutional amendment. Attempts to compromise between incompatible systems usually end badly, especially if they’re made as a by-product of some partisan political move.