Legal Fascism

As we head into a new year with what will, if we are lucky, be a continuation of a series of elections that will run throughout this decade that will probably decide the future and continued existence of our flawed constitutional and democratic system, the signs of an ever more quickening collapse of our democratic and constitutional order are growing. We are entering what Jason Stanley describes as American fascism’s legal phase at the same time the existing structures of civilian rule are being torn apart.

Peter Navarro, alias Ron Vara, is just another conservative hack economist who only got his job in the Trump administration because Jared Kushner was “doing his own research” on China by browsing Amazon and liked the title of Navarro’s book. These days, Navarro is making the media rounds promoting his new book where he openly describes the plans he and Steve Bannon had concocted for the failed 1/6 coup. The so-called “Green Bay sweep” had enlisted approximately 150 Republicans who were willing to challenge the certification of the 2020 election in six states and “remand those votes back to the six battleground states…we believed that if the votes were sent back to those battleground states and looked at again that there would be enough concern amongst the legislatures that most or all of those states would decertify the election…That would throw the election to the House of Representatives. And…all of this, again, was in the lanes legally. It was prescribed by the Constitution. There is a provision to go, rather than through the Electoral College, to the House of Representatives.”

There were several hurdles this plan had to overcome in order to be successful. First, the six battleground states had already certified their Electors but the plan hoped that some combination of the state legislatures in those six states would do one of two things. The optimal, but more legally suspect, result would be for the legislatures to put forward new Electors for Trump that would give him a majority in the Electoral College. And they did indeed already have a forged and fraudulent slate of Electors from seven states, Michigan, Nevada, Pennsylvania, Georgia, Wisconsin, New Mexico, and Arizona. The other, probably less preferred, option would be for the legislatures to “find” enough “fraud” so as to declare the current Electors as ineligible without replacing them. The continuous effort to get the DOJ to say they were looking into allegations of voter fraud would provide such cover. Those legislatures could then deny Biden a majority in the Electoral College and throw the election back to the House of Representative where the Republicans controlled a majority of state delegations so that they could install Trump as President as required by the 12th Amendment, despite being in the absolute minority in that body.

The second, more immediate, hurdle for the Bannon/Navarro plan was that the 150 Republicans willing to challenge the certification were still not enough to actually block it. Because of that, the plan had to rely on Mike Pence taking an expansive view of the wording of the Electoral Count Act that simply says the Vice President must “open all certificates” and instead deciding on his own to remand the counts back to the states. It was Pence’s refusal to do that, a “betrayal” (to use Navarro’s word), as well as the failure of the coup to drive him from the Capitol so that someone more compliant could replace him, that doomed the plan. Of course, the violent coup also left open the possibility of the declaration of martial law or national emergency in order to keep Trump in power.

While the media focus has been on Navarro’s odd decision to admit he was engaging in sedition, the more salient point is his focus on the seditious plot being “in the lanes legally”. It is this “legal” path to fascism that the GOP is preparing for now. Pence’s “betrayal” made clear that the capabilities to ensure Republican rule need to be in place much earlier in the process, especially since the current Vice President is a Democrat. The result has been an ongoing attempt to seize partisan control of the entire election process, from local election boards on up, in order to give the GOP veto points for any election at various points in the process.

The easiest and most obvious step in that process was to vastly increase efforts at voter suppression. In 2021, 34 laws that made voting harder were enacted in 19 states, the vast majority of which are controlled by Republicans. These new restrictions included stricter voter ID requirements, reduced voting hours and voting sights, reduced access to mail-in ballots and drop boxes, and increased ability to conduct voter purges. In addition, the GOP has consolidated and expanded on the extreme partisan gerrymanders that it was able to produce after the 2010 redistricting. Wisconsin is already an example of competitive authoritarianism where Democrats can win the majority of votes and still end up as a distinct minority in the state legislature, as they did in both 2012 and 2018. In Texas, the new redistricting map further entrenches future Republican minority rule with the result that it is estimated that Democrats would have to win around 58% of the vote just to be favored to win 37% of the seats. It’s no better in North Carolina, where Republicans can win over 70% of the seats with just 47% of the vote. Although the GOP advantage in the US House of Representatives strictly due to gerrymandering may not be as great as initially feared when the redistricting process began, it is still estimated that Democrats would have to win somewhere between 2% and 4% more votes nationally than Republicans simply to have a chance at maintaining control of the House in 2022.

However, as Republicans learned from their defeats in 2018 and 2020, voter suppression and aggressive gerrymandering were still not enough to guarantee control. What the failure of the “Green Bay sweep” revealed was that it was far more important to control the levers of vote-counting and certification rather than hoping to overturn those results later in the process. This realization dovetailed nicely with the Big Lie of a stolen election and has resulted in the targeting of local election boards and secretaries of state. Again, what happened in 2020 is instructive. In Michigan, a state that Biden won by around 150,000 votes, the Wayne County Board of Canvassers could not certify Biden’s win in that county because the two Republicans on that four-member board objected. They folded rather quickly after their obstruction became national news, but Republicans then pressured the State Canvassing Board not to certify Biden’s win in the state. One Republican member of the three-member Board did refuse to certify Biden’s win but the other Republican did not, and Biden’s win was finally certified.

Today, Republican Big Lie believers are targeting local election boards, secretaries of state, and gubernatorial races across the country. In twelve battleground states, at least 15 Republican candidates for statewide offices – governors, lieutenant governors, secretaries of state, and attorneys general – have refused to acknowledge Biden’s 2020 win. In Michigan, all five Republican primary candidates for governor cast doubt on the 2020 result. Bannon’s “precinct strategy” is designed to install Republican partisans as poll workers, county clerks, and election boards as well as replace Republicans who don’t support the Big Lie and believe in the integrity of current electoral process. Republican legislatures have stripped power from local election officials, secretaries of state, and even governors and transferred those powers to themselves. In addition, those legislatures have instituted criminal and financial penalties for simple technical violations by election administrators, a tactic designed to intimidate non-partisan officials. In Georgia, new election laws will allow Republicans to control election boards in strongly Democratic areas. And that aforementioned Republican in Michigan who did certify Biden’s election was not renominated by the GOP for the Board of Canvassers in 2021.

Installing partisans at virtually every veto point of election certification will give Republicans the opportunity not to certify a Democratic win based on some “finding” of fraud. The reason for all those bogus post-2020 election “audits”, (which never find any actual voter fraud), is merely to feed the myth of rampant voter fraud so that Republicans can intervene in an election result they don’t like at some point in the future. Navarro’s plan has already illustrated just how that might work in a presidential election. In other down-ballot races, the refusal to certify may mean that the elected office would remain unfilled until the issue is resolved in court, with even the potential that the election may have to be rerun. In 2009, Democrats were denied a 60th seat in the Senate for nearly six months because the Republican governor of Minnesota refused to certify Democrat Al Franken’s 225-vote win even after the mandatory recount in order to allow Republican Norm Coleman to contest it in court.

Of course, any refusal to certify an election would be likely to encounter protests in the streets. But Republicans largely have that covered as well. In response to the 2020 Black Lives Matter protests, Republican-controlled state governments passed a raft of laws that restricted peaceful protest. According to the International Center for Not-For-Profit Law, 20 states enacted 36 new laws that restrict the right to peaceful assembly, with another 46 bills pending. Many of these new laws expand the definition of and penalties for riot and increase the penalties for blocking traffic or interfering with the police, however that may be defined and determined. Some even provide immunity from drivers who run down protesters in the street. And, as those 2020 BLM protests showed, the state is all too willing to use police violence against those protesters.

Beyond election nullification, Bannon’s precinct strategy is also targeting school boards in an effort to control the teaching of history and deny America’s historical multiculturalism and the relevance of both to the country today. Republicans are intent in turning school board elections, which have traditionally been non-partisan, into another arena for partisan battle. Under the rubric of “parental control”, Republican legislators are passing dozens of laws restricting how children should be educated, most of them focused on ensuring that any discussion of structural racism is forbidden and that any non-white views should be restricted. In Texas, books about race, equality, and sexuality are being pulled from not only school libraries but also public libraries as well. A proposed Oklahoma law would allow a parent to demand the removal of any book from the school library for any reason and a school official who refused to do so would be fired and the school district would have to pay the parent $10,000 per day for every day the book remains on the shelf. There are similar proposals in other Republican states. In Texas and Indiana, Republican laws would apparently require that teachers present a “both-sides” view of Nazism.

Oklahoma’s $10,000 bounty is similar to the Texas bounty on abortion providers, which was designed to avoid judicial review and has effectively ended the right to abortion in that state, with the Republican Supreme Court’s evident approval. This effort coincides with Republican attempts to bar transgender youth from sports and block medical treatment for the transition process.

All of this – the restrictions on protest; the attacks on voting rights, abortion rights, and transgender rights; the book banning – indicates that we are witnessing the end of an era of the expansion of fundamental rights that began in the mid-1960s and a return to an era that somewhat resembles Jim Crow where an American’s fundamental rights largely depend on the state that they live in. As Ron Brownstein writes, “Since the 1960s, Congress and federal courts have acted mostly to strengthen the floor of basic civil rights available to citizens in all 50 states…But now, offensives by red-state governments and GOP-appointed federal judges are poised to retrench those common standards across an array of issues. The result through the 2020s could be a dramatic erosion of common national rights and a widening gulf – a ‘great divergence’ – between the liberties of Americans in blue states and those in red states”.

This “great divergence” is the result of decades of conservative efforts to pack the courts and, more specifically, the power-grabbing, precedent-defying, effectively lawless Roberts’ Supreme Court and its decisions over the last decade and half. It is that Court and its current conservative Republican majority that has gutted voting rights with Shelby County; has codified minority rule through extreme partisan gerrymandering with Rucho; has restricted the right to an abortion by allowing Texas to avoid judicial review and will officially end it with its decision on the Mississippi law in just a few months; has created a vigilante citizenry with its Second Amendment fundamentalism; and has opened the door to a religious exemption from discrimination laws in a number of narrow process-related decisions. Conservative groups can now venue-shop to find the same partisan Republican judges who will issue injunctions blocking virtually anything Democrats try to implement. Most importantly, the Court has effectively legalized bribery and allowed dark money, including foreign money, to dominate our politics with Citizens United and other related decisions. In the near term, we can expect further attacks on contraception, gay marriage, freedom of the press, whatever limited gun control measures still exist, and the federal administrative state.

Ironically, the “great divergence”, which exists because of the support and acquiescence of the Supreme Court, actually encourages states to defy federal power, even the powers of federal courts. The Texas abortion bounty law was specifically designed to avoid federal judicial review. States are encouraged to pass more and more draconian restrictions on certain rights in order to see just how far the Supreme Court will allow them to go, as we saw with the raft of restrictive abortion laws in anticipation of a more conservative Supreme Court. Today, Ron DeSantis in Florida, is defying the latest Supreme Court ruling that health care workers that work in Medicare or Medicaid funded facilities must get vaccinated, effectively declaring the state law has supremacy. It is the states’ rights battle, which gave us the Civil War and over a half century of legal segregation, all over again.

As the Trump years have illustrated, behind all this lies both threats of political violence and actual violence itself, some of it state-sponsored. This new political violence exists against the background of the centuries-long history of killing unarmed Black men in this country. The 2020 election cycle saw federal law enforcement basically kidnapping protesters off the streets of Portland, federal forces attacking a peaceful protest in order to clear the public area that was then used for a presidential photo op, a militia group attempting to kidnap and execute a sitting governor, and, finally, an attempted coup and violent insurrection. Threats to election officials began even before the 2020 election and have only intensified since. Similarly, the confluence of pandemic restrictions and the fraudulent scaremongering about critical race theory have resulted in threats against school boards. These threats are horrific on their own terms, but they are also part of a coordinated effort to intimidate current officeholders into either going along with the extremist GOP position or leaving the office so that it can presumably be filled by a Republican extremist. Important Republican leaders are constantly talking about a “Second Amendment solution” and hinting at civil war using euphemisms like “national divorce”. And armed vigilantes like Kyle Rittenhouse respond to their call and are treated as heroes.

We now know that the nation’s military leaders feared that Trump would try to use the military in order to stay in power. The Acting Secretary of Defense told Congress that he feared “that the President would invoke the Insurrection Act to politicize the military in an anti-democratic manner”. Those fears were shared by senior military leaders including the Chairman of the Joint Chiefs of Staff who declared he “feared it [the 1/6 attempted coup] was Trump’s ‘Reichstag moment,’ in which, like Adolf Hitler in 1933, he would manufacture a crisis in order to swoop in and rescue the nation from it”. It is also apparent that there were many in the military and law enforcement that were supportive of the Trump coup. A full 10% of those charged in attacking the Capitol were active military or had service backgrounds. 124 former military leaders wrote an open letter echoing the Big Lie. Today, at least six state national guards are defying a direct order from the supposed Commander-in-Chief to get vaccinated, a rather extraordinary breakdown in the chain of command that seems to get very little attention. Even more worrying is that some of the Guard leaders are declaring that the governor of their state is actually their commander-in-chief and not the President.

In addition, we’ve also known for years that right-wing extremists were infiltrating law enforcement. AP recently reported on the dozens of law enforcement officers in Florida and Georgia who were active members in the Ku Klux Klan and other hate groups. Some of these members were prison guards who actively recruited new members for the Klan inside the prison. Others plotted the murders of other civilians who had somehow crossed them. Despite all the proper focus on the heroes in the Capitol Police, it should be noted that, in the immediate aftermath of the attempted coup, six of its officers were suspended and nearly three dozen others were being investigated for potentially colluding with the rioters. Finally, former members of the military and law enforcement are prevalent throughout the right-wing militia movement, especially the Oath Keepers.

Our descent into legal fascism has been a decades-long effort funded by a relatively small but shadowy group of billionaires. Some of them are driven by white nationalism; some by Christian nationalism; some are extreme libertarians of the kind that used to believe the Constitution only allowed the federal government to fund defense and deliver the mail, but have recently decided to privatize the Post Office as well. Most are simply greedy narcissistic egomaniacs. All of them are intent on rolling back the New Deal and abandoning a multiracial democracy. And all of them now rely on dark money organizations to hide their dirty work. The Kochs have bought politicians for decades and fund a variety of conservative astroturf projects. The Mercers funded Trump’s campaign when it had no money, as well as Bannon and Cambridge Analytica, and, like the Kochs, fund a variety of other conservative projects. The Kochs, the Mercers, and the Scaifes supply at least some of the dark money that funds the Federalist Society, which essentially picks Republican judges. The Devoses and the Bradleys funded Trump’s coup, or, at minimum, the legal rationale for it. Bannon is currently at least partly funded by a criminal Chinese billionaire. The Murdochs run the propaganda network. And these billionaires are finally on the cusp of achieving their goal.

The history of fascism has illustrated a wanton disregard for life, even among its own supporters, in its quest for power and desire to defeat the chosen enemy. The death toll from our new legal fascism is already enormous. Hundreds of thousands of Americans have needlessly died from Covid so that our new fascists could score political points. Hundreds of thousands have died from gun violence at a level that only exists in this country. Many more will die in the coming years when abortion is illegal and when the government is barred from effectively regulating private business. And even more will die from the refusal to address climate change. Stalin killed around 10 million. At the rate they have been going, it won’t be long before our new legal fascists are nearly a tenth of the way there.

History doesn’t repeat itself, but it rhymes. And, in the United States, we have been down this road before. As Ryan Cooper writes, “what traditionally happens in American history when there is any serious leftist political movement is it is smashed through a combination of state repression and racist vigilante violence. That’s what happened to the multi-racial labor coalition in the South after the Civil War. It’s what happened to a budding socialist movement during the First Red Scare between 1918 and 1920. And it’s what happened in the McCarthy era”. This repression and violence, essentially legal fascism, occurs with the mostly tacit, but often overt, support of business elites. And so it is again today. Less than a year before the right-wing coup, Jamie Dimon was telling us the real danger was socialism. Today, the business community continues to support the seditionists in Congress.

The multiracial democracy that began in 1965 is ending and the era of the new legal fascism, with its attendant minority rule, is upon us. Already, today, we are living it even as we deny that it has arrived. Our democracy was good while it lasted, but way too short. And it will take an enormous effort and more years than we can probably imagine to be able to revive it. But as ours and others’ history has illustrated, our new fascism will probably not be defeated at the ballot box (even though its candidates don’t win the most votes), but as peacefully as possible out on the streets and with widespread expressions of organized civil disobedience. We see the first hints of what such an organized resistance might look like with Black Lives Matter, increased unionization, walkouts over Covid, and the Great Resignation. But with each passing day, the fascists exert more control.