IE 11 is not supported. For an optimal experience visit our site on another browser.

The Texas lawsuit shows Republicans went from fighting Democrats to fighting democracy

How can a Democratic president function when a majority of House Republicans now support a lawsuit that would overturn our system of government?
Image: Mitch McConnell
Mitch McConnell and other Republican leaders hold a press conference, in Washington, on Dec. 1, 2020.Bill O'Leary / Pool via Reuters

President-elect Joe Biden has long argued that the Republican Party was one presidential loss away from a “fever-break[ing]” moment of “epiphany” from which it would emerge ready to work (if not always agree) with a Democratic president. But neither Biden’s 7 million vote national margin nor the 306 electoral votes he rang up — a figure which Trump touted as a “massive landslide” when he achieved it — has broken that aforementioned GOP fever. Instead, it has spiked — to 106.

That, after all, is the number of Republican members of the U.S. House whose names were on an amicus brief filed on Thursday supporting a ludicrous lawsuit that Texas Attorney General Ken Paxton filed with the Supreme Court asking it to simply invalidate the election results in four swing states which Biden won. (Another 20 names — supposedly omitted in a "clerical error" — were added on Friday.) This “Kraken Caucus” represents a clear majority of the House GOP and includes members of its leadership, such as House Whip Steve Scalise. (Republican attorneys general of 17 other states have also joined Paxton’s quixotic bid.)

President Donald Trump and Attorney General of Texas Ken Paxton in Dallas, Texas, on June 11, 2020.Nicholas Kamm / AFP via Getty Images file

Trump, undoubtedly delighted at the prospect of a shortcut to the high court after going 1-for-55 in lower courts in his attempt to stymie the democratic process, declared Paxton’s case “the big one” which will deliver the Oval Office back to him.

The case and the Republican House members’ support of it illustrates the biggest problem Biden will face in office — and one that will inform or impede his ability to deal with the towering crises of the Covid-19 pandemic and our precarious economic situation: How can a U.S. president govern, let alone solve major problems, if one of our political parties is openly hostile to our entire political system?

The fact that no serious person thinks the Texas suit has a chance of succeeding only makes this folly more cynical and destructive.

The suit’s rapid evolution from risible pardon-bait from a politician who is currently the subject of ongoing FBI corruption investigation to a cause around which a majority of Republican House members and a supermajority of Republican attorneys general are rallying is just the latest, starkest illustration of a dangerous trend in conservative politics. Too many Republicans have gone from being anti-Democratic — that is to say, hostile to the liberal political party — to being anti-democratic — that is to say, hostile to the liberal political system and antagonistic to the idea that the will of the people should prevail — and unwilling to accept political defeat.

This trend represents an existential threat to our system.

It is, in part, a result of the Republicans' increasing willingness to abuse anti-majoritarian safeguards in our political system, and to use big government to sustain themselves. They benefit from the advantages accorded to small states in the Constitution — take Trump’s 2016 Electoral College victory despite his popular vote loss, for example, or the fact that 17 percent of the electorate can install a Senate majority — while using redistricting and restrictive ballots laws to shape and cull the electorate.

Those Republicans then abetted Trump as he attacked our political system as rigged and corrupt. You could see it four years ago, when he claimed both that primary elections he lost and the general election he won were rigged and rife with fraud; he was hardly challenged, and was often supported in his wild pronouncements. And then, when the pandemic meant that voters would cast an unprecedented number of absentee ballots, Republicans in Wisconsin, Michigan and Pennsylvania refused to permit officials to start counting absentee ballots before Election Day, guaranteeing an early, illusory Trump lead Nov. 3 whose dissipation he could blame on fraud.

How can a U.S. president govern if one of our political parties is openly hostile to our entire political system?

Since the election, the party has only more fully warmed to Trump’s demagogy, moving from the uncomfortable passivity that Republicans used to adopt in the face of his provocations to downright enthusiasm for overturning a free and fair election.

The fact that no serious person thinks the Texas suit has a chance of succeeding only makes this folly more cynical and destructive. House Republicans and state attorneys general are not low-information voters who have stewed too long in the Trump/conservative-media miasma of mendacity to know any better. As political and legal professionals, they must know that no evidence has been produced of voter fraud and that Trump’s post-election litigation campaign has been repeatedly laughed out of courts across the country.

The Texas suit, in fact, “essentially throws in the towel on proving fraud,” The Washington Post’s Aaron Blake noted Thursday.

These Republicans are instead embracing a “seditious abuse of the judicial process,” (as Pennsylvania’s response to Paxton’s suit termed it) for cynical political reasons, again exposing themselves as bereft of any core values beyond a desire for power and, perhaps, tax cuts. These preening strict constructionists who have long styled themselves as originalist defenders of federalism and states’ rights against big government overreach are now asking Uncle Sam to disenfranchise tens of millions of voters in violation of the core principles of the Constitution.

And that Trump is simultaneously flirting with political violence — “We will soon be learning about the word ‘courage’, and saving our Country,” he tweeted this week amidst ongoing threats and harassment directed toward state election officials of both parties — while his most rabid devotees offer up their lives to his cause doesn’t seem to bother them either.

All of this brings us back to Biden’s dilemma: He wants to be a president who can reach across party lines to solve our nation’s looming problems — and that’s laudable because it’s how our system is designed to work. But achieving it will require understanding of the extent to which the very idea is anathema to a party that no longer respects the fundamental basics of our democratic process — voting and the peaceful transfer of political power — let alone good governance.