Bad Faith

Just prior to Election Day a friend observed that we’re going to need new laws and new structures to prevent the corruption, self-dealing, and looting of the public treasury that have been the hallmarks of the Trump administration. “We can’t have ‘acting this’ and ‘acting that,’” my friend said. “We need to ensure accountability.” I told him that the laws already exist, and have for some time: but that enforcement is up to the Congress and the courts. With the Senate operating as a wholly-owned subsidiary of Trump, Inc.; and with a significant fraction of the Federal bench occupied by Trump appointees, the likelihood of anything actually being done is vanishingly small.

The problem isn’t that laws and structures don’t exist. The guardrails haven’t done much guarding these last four years, proving to be not such solid railings or firm barriers; rather, it turns out they are just suggestions, only as strong as public outrage and the other branches’ willingness and ability to enforce standards of behavior that have served the Republic well for two-hundred and forty-four years. I mention both “willingness” and “ability” because — as it turns out — the current administration has decided that the rules that have applied to every predecessor do not apply here. They have defied both congressional demands and court orders with alacrity, zealously undermining the institutions of democratic self-government while loudly claiming to speak “for the people.”

Well, the people have spoken and Donald Trump has been fired. He claims — falsely, as always — to have won with a “record” number of votes; and yes, his tally was indeed record-setting: more than ever for a second-place candidate. And let’s be absolutely clear: Biden’s victory was decisive, a margin of six million votes — nearly four percent. In an age when many elections are won and lost on razor-thin fractions, four percent is a landslide.

But the presidential falsehoods and GOP bad faith continue unabated: Dozens of failed lawsuits in multiple jurisdictions and attempts to strong-arm state elections boards and legislatures in Republican-led states will not change the outcome but they will undermine public confidence in elections, to the point where — as comedian Sarah Cooper tweeted recently — voters are asking courts to ignore the will of the voters. Reduced to its starkest terms: elections are legitimate if “we” win, but fraudulent if “they” win.

Of course it’s a bad faith argument. The essence of democracy — of voting — is that the outcome isn’t going to please everyone, all the time. Sometimes you win; sometimes you lose. That’s how the system works (when it works). Or as Christopher Krebs — fired last week for bucking Trump’s message that the election was fraught with fraud — noted last year, the purpose of elections is to convince the loser that he lost. This isn’t how we normally think about voting, but it’s dead on. Trump knows he lost; the people around him know he lost; Republican officials at all levels know that he lost. That they continue to sow doubt and stir up mistrust; that they say either nothing at all, or demur quaintly about “rights” to pursue false claims in court, says far more about them than it does about the actual results. They would cling to power by any means possible, the people be damned.

In 1982 the Republican candidate for New York’s 20th Congressional District (Upper West Side) lost overwhelmingly, 85%-15%. Of his defeat he remarked: “The people have spoken. The bastards.” If only today’s GOP could accept electoral outcomes with as much grace and dignity.

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