The Mainstream Against Democracy
Why win votes when you can engage in lawfare?
Mainstream parties could have responded in one of two ways to the populist wave that began to sweep through developed nations on both sides of the Atlantic in the mid-2010s. They could either offer attractive policy alternatives that answered ordinary people’s anxieties and rallied them away from populist movements like Trump and Brexit, or they could try to use underhanded lawfare strategies to undo populist ballot-box victories.
They overwhelmingly picked the latter course of action. They called it “defending democracy.”
After Britons voted decisively to leave the European Union, the establishment spent years trying to thwart Brexit, legally harassing leading Brexiteers and even accusing them of Russian “collusion.” Across Central and Eastern Europe, populist and national-conservative movements have faced years of lawfare pressure, directed from Brussels and supported by comprador liberal activists and NGOs at home, for the crime of being popular. And then there was the establishment response to Donald Trump’s election in the United States in 2016: Russiagate, the Mueller probe, two impeachments, “the walls are closing in.”
This week, the lawfare strategy took an ominous new turn. Not content to wage war against populists in the wake of elections, establishment forces now seem prepared to foreclose the very possibility of populists winning elections in the first place. That’s the upshot of the Colorado Supreme Court’s decision to block Trump from state ballots in 2024, on the grounds that the former president engaged in “insurrection” and is therefore unqualified to hold office under the 14th Amendment to the U.S. Constitution.
The decision—at once monumentally stupid and sinister—has already come in for a drubbing from legal analysts across the political spectrum. I won’t relitigate the arguments here, other than to state the most obvious one: namely, Trump has yet to be convicted of insurrection by any court whatsoever, notwithstanding the feelings to the contrary of four Colorado jurists. Even if he had been convicted, it is far from a settled legal question whether he counts as an “officer” of the United States under the meaning of Section 3 of the 14th Amendment.
Nor do I find much interesting in the GOP horse-race ramifications of the move. Trump was on his way to clinch the 2024 Republican nomination before the Colorado high-court ruling. If no fewer than 91 prosecutions across the land have been any guide, this latest legal blow will only boost his standing in the polls. Good luck, Nikki!
The most pertinent and intriguing question is this: What would things have looked like if, instead of choosing the path of lawfare and #Resistance, mainstream parties had sought to accommodate populist voters and/or offer them an even more enticing vision of what the future might look like? That’s the question posed, most acutely, by progressive critics of the Colorado decision, including Samuel Moyn, Sam Haselby, and Ben Burgis, among many others. Their point, addressing the left from the left, is that the Trump phenomenon is a political problem. If you don’t like him, you had better offer a compelling alternative around which an enduring national majority might coalesce.
Keeping Trump off the ballot in Colorado (and perhaps elsewhere), writes Moyn, “transforms what ought to be a national referendum on the future of the country into a national spectacle of how judges will interpret a provision from its past.” Such a move might—emphasis on might—save Joe Biden, but it would come at great cost: an unprecedented national explosion. And in the end, it couldn’t save the Democrats—or establishment Republicans, for that matter—“from their nonnegotiable responsibility to win power by winning elections.”
To be sure, mainstream Democrats haven’t been entirely blind to this necessity. The story of the Biden administration is, in some ways, the story of America’s center-left party of government accommodating populist anger on free trade and manufacturing loss, even as it demonized Trump, the figure who first gave voice to these issues. Team Biden has maintained the Trump tariffs against China, and it is the first administration in two generations to put forward something resembling an industrial policy. But this accommodation has been limited, above all, by Team Biden’s immigration policies, which have carved a path of destruction from the southern frontier through the border states and now into many blue cities and states.
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Nor have mainstream Republicans entirely ignored the populist frustrations that propelled Trump to the Oval Office the first time around. It has become a little bit easier to oppose foreign interventionism in the years since 2016, at least in some areas of the globe. On immigration, the party has come far from the heyday of Paul Ryan-ism. But here, too, the mainstream right still hasn’t challenged itself to understand the full appeal of Trump. Ron DeSantis—the embodiment of establishment who hopes to have “Trumpism without Trump”—tepidly opposed funding for Ukraine and then backed off, reportedly under pressure from a hawkish donor. He bashed corporate wokeness, but had almost nothing to say about manufacturing, industrial policy, wages, and the like. And he couldn’t manage to reassure the base that their entitlements would be safe from the slash-and-privatize schemes he’d once championed.
What kind of an agenda will secure an enduring majority in early-21st-century America? The failures of the establishment to cure its Trump headache are instructive: Democrats must tilt much further to the right on immigration (and the related complex of issues having to do with merit, affirmative action, social cohesion, law and order, and the like). Republicans need to tilt left on wages and job security, social insurance, and health care—the potent anxieties of Trumpian America.
This really isn’t that hard. But by all means, let’s keep going down the road of constitutional crisis and crackup.