Should Biden Call Out Trump’s Lawlessness? By Jonathan Bernstein

Should Biden Call Out Trump’s Lawlessness? By Jonathan Bernstein

bloomberg.com

4 min

Published on December 15, 2020, 7:37 AM EST

President-elect Joe Biden is facing a transition challenge that is essentially unprecedented. The incumbent is refusing to concede, and promulgating a series of false charges about supposed election fraud — charges so evidence-free that his own legal team won’t submit them to court. And it’s not just the lawless president: A large portion of his party would be willing, if they had the votes, to throw out the election results and proclaim Donald Trump president by decree, ignoring the voters entirely.

The contemporary Republican Party is hardly the first in U.S. history to have a faction that actively opposed democracy. Segregationist Democrats did so in the former Confederate states for decades. But there’s something very different about that situation, or recent Republican efforts to restrict the franchise, and a president who doesn’t even pretend to abide by the basic rules of the system. Especially since he’s also eager to restrict the vote — or to just eliminate it entirely when it doesn’t go his way.

Until Monday, Biden had dealt with this situation by downplaying it as much as possible. I think that was the best strategy. And so I think his decision to address it on Monday night after the Electoral College reaffirmed his victory was probably a mistake. Even giving such a speech was a concession of sorts to Trump’s illegitimate challenges. In normal years, everyone treats the gathering of the electors as purely ceremonial. Which is quite correct: Ever since the early days of the republic, the electors have done nothing more than tally what was already decided by their state’s voters. But Trump and his allies are doing what they can to establish new norms, in which partisan judges, state governments and eventually congressional majorities all are free to ignore voters and substitute their own preferences. One challenge for Biden is to strengthen the assumption that voters choose.

Another challenge he’ll face is even trickier. Negative partisanship drives public opinion; the more support for democratic practices is associated purely with Biden and the Democrats, the more Republicans will tend to join Trump in opposing those practices. It may seem weird to say that the president-elect talking about the virtues of democracy could actually harm that cause, but that’s where we are. Scolding Trump, as Biden did on Monday, no doubt appeals to Democrats, and does have the virtue of accurately describing what’s happening. But the last thing Biden wants, and the last thing the nation needs, is a partisan divide over whether democracy is a good thing or not.

The good news is that when push came to shove, a series of Republicans in key positions — judges, election officials and politicians at the state level — stood up to Trump and were loyal to the rule of law. It’s also good news, or at least less-bad news, that following the Electoral College balloting, more Republican senators are finally admitting that Biden won. That gives Biden and his supporters something to build on. But he should probably do what he can to remove that particular fight from any partisan context.

This isn’t an obvious question. There’s much to be said for the idea that the incoming president should make clear that the claims of fraud are entirely untrue, that the election was free and fair, and that Trump’s allegations to the contrary have been thoroughly discredited. But on balance, I think Biden’s instinct to play it down and to keep the focus on his plans for the pandemic, the economy and other such policy areas is the best choice for him for now.

1. Christina Fattore at the Monkey Cage on a surprising source of Democratic support in Georgia.

2. Josh Huder at Mischiefs of Faction on House Speaker Nancy Pelosi in the new Congress.

3. Christopher Ingraham speaks with several political scientists about the damage Trump and his allies are doing.

4. My Bloomberg Opinion colleague Timothy L. O’Brien with a must-read on Trump’s weakness as a policy leader.

5. And Rachel Cohen on saving local news.

Get Early Returns every morning in your inbox. Click here to subscribe.