Published by The Lawfare Institute
in Cooperation With
The networks and the Associated Press have called the Commonwealth of Pennsylvania for former Vice President Joe Biden, giving him more than the 270 electoral votes he needs to be elected president. While President Trump has not conceded defeat, his tenure as president of the United States will end at noon on Jan. 20.
The closer-than-expected race did not produce the election result for which millions of Americans who value the traditional presidency—its norms, institutions and behaviors—were hoping. The much-anticipated blue tsunami failed to wash away Trumpism, and disappointment in the ambiguity of the result is understandable, maybe even inevitable. The partial nature of Trumpism’s defeat will certainly limit the degree to which a Biden administration can enact reforms to restrain future Donald Trumps.
It is, however, a tremendous opportunity to bolster and strengthen American democracy—one that people should not underestimate and the political system must seize.
Like many Americans, we wanted more. The election result this week is a defeat of President Trump, but it is not a full-throated repudiation of him. It is not an electoral burying that will send a message down through the ages of what will happen to a president who begins his presidency at the demagogic end of the bell curve and spends the entirety of it racing ever further to its thinnest reaches. The vote is a rejection of Trump, but it is not an electoral renunciation of Trumpism and all its works.
Indeed, while Trump has been narrowly defeated, Trumpism did pretty well in this election. The president’s congressional enablers largely hung on; some particularly Trumpy figures even gained seats. Democrats lost seats in the House of Representatives, and Mitch McConnell appears likely to remain the Senate majority leader—though that will not be entirely clear until a probable Georgia runoff election decides the state’s two senators.
What’s more, Trump himself did well—or, at least, better than he should have and than the polls anticipated.
Four years ago, at this time, analysts were seeking to explain Trump’s shocking victory with reference to factors peculiar to the particular election cycle. Hillary Clinton, the public was told, is a uniquely polarizing figure; huge numbers of people loathe her who don’t loathe Joe Biden—who is, conversely, well liked and has broad appeal. Americans were also told the election was swung by the letter sent out by FBI Director James Comey in late October 2016 announcing that the FBI was examining new evidence in the Clinton email investigation. This year saw no Comey letter—not from Comey, and not from anyone else either. Russia intervened in 2016; there was no giant hacking and dumping operation this year. The social media companies facilitated widespread disinformation four years ago; this year, they took far more aggressive and effective action. None of the specific factors that people told themselves pushed Trump over the top four years ago was present this cycle.
What’s more, people this cycle had information not available to them last time around: Most importantly, they watched the last four years of Trump’s presidency. Americans got to see the unremitting chaos of his governance, his attacks on the rule of law, his cruelty and viciousness, his racism, his mendacity, his rejection of intelligence and process, and the extremity of his views on foreign policy and national security matters. The country also experienced the mismanagement of the coronavirus pandemic, up to and including the tens, perhaps even hundreds of thousands of needless American deaths and the concurrent economic collapse. Unlike four years ago, Trump is no longer an empty vessel to be filled with vague hopes of making America great again. He is today a painfully known quantity.
And yet, despite all this, Trump held nearly all the states he won four years ago. He ran a competitive race even in the states that flipped from red to blue and put Biden over the top. Trump was not a huge drag on his party’s congressional candidates facing an expected blue wave. He lost the popular vote, yes, but he did not do dramatically worse in this regard than he did last time.
In other words, Trump did only a little less well than he did four year ago. That little bit, in a close election determined by the Electoral College, is the difference between winning and losing. But Americans who care about the rule of law and the health of institutions in the context of a pluralistic democracy, and who hold remotely conventional views of national security policy, are left with an uncomfortable reality: a near-majority of their fellow voting citizens—certainly a sufficient number to constitute a viable electoral coalition—looked at the past four years and found it worthy of continuing support. Over the coming weeks and months, the picture of who supported Trump and why will become clearer as journalists, commentators and political scientists dig into the numbers to understand the demographics of the vote. But the big picture will remain the same. And it will never cease to be upsetting.
So yes—Trump will be a one-term president. The country will not have to weather the dangers posed by another four years of Trump’s leadership, in particular the new risks presented by a president unconstrained by the political necessity of winning a second term.
But this was not a mass expression of the electorate’s moral revulsion at Trump. The electorate did not, as the president’s opponents might have hoped, signal that Trumpism is finished. Over the past four years, there has been a great deal of debate over the extent to which Trump and Trumpism represent a departure from or a continuation of the Republican Party’s past. Apparently, whether or not Trump is a historical aberration, his style of politics will not be an aberration moving forward. The fight against Trumpism, its particular mix of grievance and authoritarian delight in power for power’s sake, is now a normal part of American politics.
Not all of Trump’s congressional enablers retained their seats. Republican Sen. Cory Gardner in Colorado, who tied himself to Trump in a desperate effort to secure reelection, lost to Democrat John Hickenlooper, and Gardner’s GOP colleague Sen. Martha McSally was unseated in Arizona as well. But their fellow vulnerable Republicans—including Maine Sen. Susan Collins, North Carolina Sen. Thom Tillis and South Carolina Sen. Lindsey Graham—all appear to have held on to their spots in the Senate. Sen. Tom Cotton, one of the most enthusiastic emulators of Trump’s political style, cruised to reelection. In the House of Representatives, seats were secured by Majorie Taylor Greene—a believer in the bizarre pro-Trump conspiracy theory QAnon—and Madison Cawthorn, who has been accused of sexual misconduct and racism, and tweeted “cry more, lib” after winning the race. Greene and Cawthorn both ran in safe Republican districts, but their successes are still a signal that Trumpism will have a lasting effect in expanding what views and behavior are acceptable within the Republican Party.
“I was hoping that this would be a chance for some healing, if there would be somewhat of a repudiation of Trump,” a Texas Democrat said to the New York Times the day after Election Day. “But I don’t see where the healing is going to come from now.”
Currently, it seems like control of the Senate will come down to two runoff elections in Georgia in January—likely a tough fight for Democrats. If Republicans hold on to the Senate, the party’s continued congressional power will have difficult consequences for the incoming Biden administration. To begin with, President Biden’s appointment power will be sharply curtailed by a Republican majority. Axios is already reporting on Republican plans to force Biden to appoint a more centrist cabinet.
Democrats will face similar constraints on legislation. The more far-reaching proposals for reforms to American democracy are clearly off the table; for example, ambitious protections for the right to vote are unlikely to get through a Republican-controlled Senate. The opportunity for a wholesale reform effort in response to Trump is significantly less than it would be had the election results been different. And that’s discouraging.
But don’t be too discouraged. Even if Trumpism survives this election, the rejection of Donald Trump himself is not just a good thing for those who care about the rule of law, the survival of democratic institutions, and non-insane national security policy—it is a galactically good thing, and it’s an opportunity for repair and renewal.
Although divided government will likely lead to paralysis on big-ticket policy items, a President Biden may well be able to convince McConnell to cooperate on basic executive branch rule-of-law reforms, especially once Senate Republicans no longer feel political pressure to defend Trump at every turn. A GOP free of Trump, for example, should have no reason to oppose laws that require presidential nominees to release their tax returns or ban blind trusts or tighten anti-nepotism rules. These are neither controversial reforms nor are they publicly salient, which means that McConnell may be able to work with Biden on them without worrying about giving Biden a political win.
There might even be common ground when it comes to congressional-executive relations. Throughout his administration, Trump has flouted the Senate’s role in confirming executive branch officials by relying heavily on interim appointments. As long as the president was a fellow Republican, McConnell went along with the neutering of his own institution. But now that a Democrat is in the White House, McConnell has an incentive to tighten the Vacancies Reform Act and make it harder for the president to rely on interim appointments. Of course, this would require McConnell to compromise on confirming Biden’s nominees, but given Biden’s likelihood to pick moderates to key executive branch roles, this should be a doable trade. Similar scenarios can be envisioned for strengthening Congress’s oversight role and investigative powers.
Even if McConnell reprises his Obama-era role as D.C.’s spoiler-in-chief—as he certainly will on many issues—there’s plenty Biden can do on his own.
Let’s start with perhaps the most important thing: He can stop running the executive branch of the U.S. federal government as though it were his personal plaything or a device to magnify all of his impulses. That is, he can return executive branch governance to normalcy. Senate Republicans cannot make Biden act like Trump. And merely having a normal president, with normal flaws and follies and errors, will relieve intense pressure on many parts of government and society alike.
There are more active steps Biden can take too. Much of it is simply a matter of staffing the executive branch with the right people—or, more to the point, not the wrong people. Biden doesn’t need McConnell’s permission to not pick an authoritarian attorney general or a corrupt secretary of state or an incompetent director of national intelligence. Nor does he need McConnell’s blessing to set a tone throughout the executive branch that values legality, expertise and decency over mafioso loyalty. Rather, Biden can, all by himself in a laudable act of executive unilateralism, rebuild key executive branch procedural norms, from the independence of the Justice Department from political interference to the rebuilding of a rigorous, evidence-based policymaking process in the White House.
Perhaps most importantly of all, Biden can, simply by being himself, cure a long-standing constitutional defect of the Trump era: the national disgrace, visible around the world, of a president incapable of satisfying the most important qualification of his office, the responsibility to try, in good faith, to follow the law and uphold the Constitution. It is entirely within Biden’s power to act not only as the leader of his party but also as the head of state of his nation, to spare the country from lunatic Twitter rants and, merely by displaying basic decency, bring some measure of dignity back to the Oval Office.
Democracy is not a finish line to be crossed once and for all, but a struggle to be fought over and over again—every four years, every two years, every day. President-elect Biden’s victory means that, across the political spectrum, democracy’s believers get to keep fighting to preserve and strengthen it. After what the country has lived through for the past four years, that’s a thing worth celebrating without reservation.