Thwarting the Majority

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Will Special Counsel Mueller's investigation ultimately reverse the mistake of 2016?

Will Special Counsel Mueller’s investigation ultimately reverse the mistake of 2016?

The election of Donald Trump in 2016 thwarted the will of Americans. According to official counts, Trump secured the Republican nomination by winning 46% of the Republican primary vote, representing only 23% of voters participating in the 2016 presidential primary elections. On Election Day, Trump was declared the winner with 46% of the vote compared to Clinton’s 48%.

Trump was an unpopular candidate. The polls consistently found more voters favoring Clinton between July 2015 and November 2016, with the sole exception of July 25-29, 2016, the week after the Republican National Convention.

Trump is an unpopular president. According to FiveThirtyEight’s summary of polls, Trump enjoyed net positive approval (more approval than disapproval) for only the first 10 days of his presidency. His ratings turned negative already by February 2017, and continued to widen to negative 15 by May. Since then the share of Americans that disapprove of Trump has been 15 to 20 percentage points higher than those that disapprove.

From the day he announced his campaign to the first anniversary of his presidency, more than 50% of Americans have had an unfavorable opinion of Trump, with the sole exception of the month leading up to his inauguration. The gap between those holding unfavorable and favorable opinions of Trump, never less than 4 percentage points, widened to nearly 20 percentage points in August 2017 and like the approval – disapproval gap, has remained in the range of 15 to 20 percentage points ever since.

In short, most Americans never liked Trump and still don’t. Nor do people around the world. Under Trump, confidence in the U.S. President has decreased in every country of 37 surveyed except two: Israel (increased a bit) and Russia (increased a lot).

Congress to the Rescue?

Only Congress can remove Trump before his term expires. But Congress suffers from a democracy deficit too. In the 2016 House elections, Republicans won 48% of the total vote but 55% of the seats. It’s harder to compare votes cast to seats won in the Senate, since only one third of Senators are on the ballot in any election year. However Republicans won 44% of the vote for Senators in the 2012, 2014, and 2016 elections combined, and on the strength of those votes held 52% of the seats as of January 2017.

Trump’s opponents are increasingly popular. Polls have found a 15 percentage point lead for Democrats in party preference for Congress since May 2017. Democrats scored well in the (relatively few) 2017 state elections. The Republican majority in the Senate is down to one vote thanks to the upset victory of Doug Jones in a December 2017 special election.

Democrats have the biggest lead, +12 percentage points, of any minority party the year before a midterm election going back to 1938 (no polling data is available earlier). As of September 2017, there were 171 Republican incumbents facing Democratic challengers–about three times as many incumbent seats being challenged as in an average year since 2003 (the first year for which this data is available). There is already a record number of Republican Representatives who have announced their retirement.

Although previously “unthinkable,” with the upset win in Alabama, Democrats now face a decent chance of winning a majority in the Senate. And if the 12-13 percentage point lead in the “generic ballot” holds, Democrats are sure to retake the House.

A Democratic win, even in the face of Trump’s unprecedented unpopularity, is not a foregone conclusion. The district boundaries in the House mean that Democrats would need to win an estimated 57% of the national vote to win a majority of the seats. The Senate is exempt from the “one person, one vote” principle that applies to every other elected body in the country. Of the one-third of Senators whose terms end this year, 26 are Democrats and only eight are Republicans. Five of the Democratic Senators come from states where Trump’s margin of victory was 18 percentage points or greater.

In the last three midterm elections, voter turnout was 20 to 23 percentage points lower than the presidential election two years before. The minority of citizens who vote regularly lean more conservative than those who vote infrequently.

If Trump remains unpopular in November 2018, merely showing up to vote does not mean that the anti-Trump majority will rule. If the Senate majority switches, but there are fewer than 60 Democrats, Republicans can use Senate Rule 22 to block most legislation. Even if a Senate majority decides to use the “constitutional (aka nuclear) option” to restore majority rule on all matters, President Trump can veto legislation. Thus in order to undo the legislative impact of the 2016 election, Democrats would have to win two thirds of both House and Senate seats–which no one believes is possible.

More likely, the U.S. Government would return to perpetual stalemate, similar to 2011-2016, where the President and one or both houses of Congress are of different parties. Like President Obama before him, Trump would attempt to legislate by executive order.

Removal of the President

Although a Democratic majority in the House could vote to impeach President Trump, removal from office requires the consent of two thirds of the Senate. Even with a Democratic sweep of the 2018 elections, President Trump would remain in office unless a substantial number of the Senators from his own party could be persuaded to vote to remove him.

Perhaps Senate Republicans would do just that should Special Counsel Robert Mueller present an indictment (or the equivalent) with irrefutable evidence that Trump is guilty of money laundering, perjury, conspiracy to commit computer fraud, and/or obstruction of justice. President Nixon resigned in 1974 after he was informed that his fellow Republicans were prepared to vote to remove him from office. But in an impeachment scenario, Trump would be replaced by Vice President Pence, who could also thwart a Democratic majority in Congress.

Pence may be a suspect of Mueller’s investigation, too. Before Congress could impeach and remove Pence, he would per the Twenty-Fifth Amendment name a new Republican Vice President, who would become President. But maybe Congress would impeach both the President and Vice President together? It’s conceivable that some Republican Senators would vote to remove a politically damaged Trump, knowing that Pence would take his place. It’s inconceivable that these senators would remove Pence knowing that a Democrat would become president.

If the President is incapacitated (heart attack? stroke?), the Twenty-Fifth Amendment permits the Vice President to temporarily assume the Presidency, but this switch can be blocked by the President, unless overturned by a vote of two thirds of each chamber of Congress, a higher hurdle than impeachment and removal, which also requires two thirds of the Senate but only a majority of the House.

In short, even with a sweeping defeat of the Republicans in 2018, the U.S. government will not reflect the policy preferences of those voters, or of the 54% who voted against Trump, until January 2021 at the earliest.

Everlasting Harm?

Even then, maybe not. Trump has already made a Supreme Court appointment–the seat that by all rights and traditions should have gone to President Obama’s choice. Justice Ginsburg will be 87, Justice Kennedy will be 84, and Justice Breyer will be 82 before Trump’s term expires. If any Justice dies or is incapacitated before that time, Trump’s selection would create a solid Republican majority on the Court that could thwart the popular will for decades to come, particularly since it is now routine to game the system by appointing people in their 50s (or younger, in the case of Gorsuch) with the expectation that they will serve for at least 30 years.

(Should a vacancy occur after the new Congress of January 2019, if there is a Democratic majority in the Senate it is likely that they will delay the appointment of a new justice, following the example set by the Republicans in 2016.)

Thus the outcome of the 2018 election could make a difference in judicial appointments. However even if voters overwhelmingly repudiate Trump and the Republicans, their preferences will have essentially been overridden by the tiny minority of 2016 voters–just 77,000 out of 136 million (Trump’s margin of victory).

The election of Trump–in defiance of the majority of American voters–is not a triumph of populism but the clearest signal that American democracy is sorely in need of an overhaul. The to-do list is long: let all citizens vote and make voting easier; reduce the influence of parties on district boundaries; prevent Congressional minorities from blocking legislation; eliminate plurality elections; end laws that discriminate against new political parties; curb at least the worst aspects of the Electoral College. The obstacles are legion: a Constitution that is the hardest to change in the world; worship of the Founding Fathers and the allegedly perfect system they allegedly created; voter apathy; and the self-interest of politicians elected under the current rules.

The election of Trump is a wake-up call that American democracy does not meet the democratic ideals of Americans. If Trump does not lead to the death of democracy, perhaps his election will lead us to fix some of the longstanding defects of the American system.


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