In the Washington Post, adapted from his forthcoming book. His essay is eloquent. Here’s some excerpts:

A healthy republic would not be debating whether Trump and his followers seek the overthrow of the Founders’ system of liberal democracy. … As one 56-year-old Michigan woman present at the Capitol on Jan. 6, 2021 explained: “We weren’t there to steal things. We weren’t there to do damage. We were just there to overthrow the government.” …

Trump … has explicitly promised to violate the Constitution when he deems it necessary. That by itself makes him a unique candidate in American history and should be disqualifying.

This kind of open challenge to our democracy was never meant to be addressed by the courts. As the Founders well understood, you don’t serve a subpoena to a would-be tyrant and tell him to lawyer up. Nor was it meant to be addressed by the normal processes of democratic elections. They knew, and feared, that a demagogue could capture the allegiance of enough voters to overthrow the system. That was why they gave Congress, and particularly the Senate, supposedly more immune from popular pressures, the power to impeach and remove presidents and to deny them the opportunity to run again — and not simply because they violated some law but because they posed a clear and present danger to the republic. After Trump’s attempt to overthrow the government in 2020, Congress had a chance to use the method prescribed by the Founders in precisely the circumstances they envisioned. But Senate Republicans, out of a combination of ambition and cowardice, refused to play the vital role the Founders envisioned for them. The result is that the nightmare feared by the Founders is one election away from becoming reality.…

Americans … know he would not respect the results of fair elections if he loses, which is the very definition of a tyrant.

So, why will so many vote for him anyway? For a significant segment of the Republican electorate, the white-hot core of the Trump movement, it is because they want to see the system overthrown. …

Many of Trump’s core supporters insist they are patriots, but whether they realize it or not, their allegiance is not to the Founders’ America but to an ethnoreligious definition of the nation that the Founders explicitly rejected. …

If the American system of government fails this year, it will not be because the institutions established by the Founders failed. It will not be because of new technologies or flaws in the Constitution. No system of government can protect against a determined tyrant. Only the people can. This year we will learn if they will.

While I share much of Kagan’s diagnosis of the danger that Trump and his followers present to our nation’s system of “liberal democracy,” I think Kagan goes too far in depicting the Founders and the Constitution they created as an ideal from which we have fallen and to which we must return. Conversely, one need not go as far as Kermit Roosevelt does in arguing that we must repudiate the Founders in favor of resting our collective national creed solely on the beliefs of Lincoln and the Republican Reconstruction that followed the Civil War. Instead, my view is that if we are going to see a way out of our predicament, it will because we recognize that the Founding and its Constitution, reflecting important Enlightenment values that are worth sustaining and nurturing as we continue to seek human progress, was important respects deeply flawed, including in the institutional structures of democracy that it established. Unlike Kagan, I don’t think we can rely on a hope that the public will be sufficiently virtuous to reject would-be tyrants. Instead, like Madison himself, I think we need to be the architects of institutional arrangements that provide for the ongoing operation of collective self-government given the limited amount of civic virtue that necessarily will exist in society. The problem in my view is that our existing institutions are no longer adequate for the level of civic virtue we currently have, and thus we need institutional reforms (along with efforts to re-cultivate more civic virtue) to bring our system into Madisonian equilibrium. In this sense, Madison had the right idea, but he did not implement it correctly. As good Madisonians, we need to repair the serious flaws in the system he and the other Founders created. I think Kagan regrettably misses this key point.

This Washington Post summary of yesterday’s testimony highlights how the prosecution is attempting to turn a potential federal campaign finance violation into a state-law criminal offense. The “secret pact” to influence the election through a “catch-and-kill” scheme to suppress stories unfavorable to Trump would not be illegal, given the First Amendment, unless it amounted to some sort of unlawful financial contribution to Trump’s campaign. And even if it were, there are all the legal issues associated with tying it to state-law crimes. So what The Washington Post describes as potentially “significant damage” to Trump from David Pecker’s testimony may ultimate depend on legal rulings down the road on the implications of that testimony under the applicable federal and state laws.

Bloomberg covers a new report released by Center for American Progress, which advocates more aggressive use of shareholder suits to curb the kind of campaign spending permitted after Citizens United (and especially the D.C. Circuit’s decision in SpeechNow on superPACs):

“That threat of legal action could make executives of publicly traded companies less likely to donate to political causes and groups, said Tom Moore, a senior fellow at the Center for American Progress and a co-author of the analysis.”

But:

“Not all campaign finance lawyers are convinced the idea can work. Jason Torchinsky, an attorney with Holtzman Vogel who was general counsel to former President George W. Bush’s 2004 reelection campaign, said he couldn’t see what harm a shareholder could show. Companies that earn billions in profit spend a relatively small amount on politics, he said, and in a manner that aligns with their business interests.”

Time will tell whether this proposed strategy lives up to the expectation that it “could play a major role in the 2024 elections with corporations more cautious to donate.”

There is much that’s accurate in this explainer in The Washington Post. But there is one sentence that jumped out to me as highly inaccurate and misleading: “For much of U.S. history, there were more than two major political parties, and that could emerge again.” That’s just not true. To be sure, third (and fourth, etc.) parties have attempted to compete against the two dominant parties since fairly early in the nineteenth century, and the upstart Republican Party was able to replace the Whigs as the second dominant party before the Civil War. But never has there been a period when three or more “major political parties” have been competitive amongst each other at the same time. The closest the nation came to that was 1912, when Teddy Roosevelt’s Progressive (Bull Moose) party eclipsed the GOP to come in second for the presidency (in both the Electoral College and the national popular vote). But the Progressive Party was not able to sustain itself as a “major” third party. The role of minor parties in the nineteenth century, like the Greenbacks, was much the same as the role of minor parties, like the Greens, today.

The Post’s explainer correctly observes that the “plurality” winner rule that states to award their electoral votes prevents third parties from effectively competing. But the piece fails to discuss the kind of electoral reforms that would enable third parties to compete without simply serving as spoilers for one of the two major parties. Instead, the explainer concludes by saying: “So until there is a popular rejection of the two major parties, or an official divide in one of them, the two-party system dominates.” Instead, a better conclusion would have been something like this: “So unless election laws are changed to adopt procedures that would enable third parties to compete effectively, like various forms of ranked choice voting, the two-party system dominates.”

Brian Kalt has this important new article, forthcoming in Cardozo Law Review (of which I was fortunate to read an earlier draft). Here’s the abstract:

The current presidential-succession statute uses the same line of succession for every conceivable situation. But there are many different types of potential succession scenarios. Succession need not–and should not–be governed by a one-size-fits-all approach.

Before the Twentieth Amendment was ratified in 1933, the Constitution authorized Congress to provide only for double vacancies during the term, when there already is a President and Vice President. Recognizing this gap, Section 3 of the Twentieth Amendment empowered Congress to cover inauguration-day double vacancies: at the outset of a term, when nobody is available to become President or Vice President in the first place.

Significantly, Section 3 gives Congress much more flexibility for inauguration-day double vacancies than Article II allows for middle-of-the-term ones. But Congress has never fully embraced its Section 3 powers: When Congress wrote the current succession law in 1947, it chose a monolithic system that ignored the distinctive needs of inauguration-day succession and left Section 3’s flexibility unused. The time for Congress to make full use of its Section 3 powers is long overdue.

Moreover, Section 3 has been largely neglected by scholars. The time for a full-length published treatment of Section 3 is overdue as well.

Daily Beast reports on a financial arrangement that may violate federal campaign finance laws. From my perspective, with all the serious threats facing American democracy, this particular story is not a high priority. (Maybe the media could devote some more… Continue reading

Tune in here at ELB.

A more optimistic note on Ohio’s handling of the Biden ballot mess (h/t Derek Muller): ‘DeWine told 10TV that he doesn’t think anyone should worry. “We’ve got some technicalities that are going on, but it’s going to get worked out… Continue reading

Tom Edsall in the N.Y. Times reviewing the social science on why it’s so hard to undo the emotional feelings associated with “affective” polarization. His column leads with Rachel Kleinfeld’s important work on this topic. I wish, however, Edsall… Continue reading

The Election Law Clinic at Harvard Law School is hiring a Clinical Instructor: an attorney with at least three years of experience who is ready to train a new generation of election lawyers. The job posting is on the ELC… Continue reading

AL.com reports. “It could get final passage as early as next week.” It “bipartisan support and no opposition.” Maybe now Ohio can be embarrassed enough to do the same. For Ohio’s mess, see Can Ohio overcome dysfunction to fix Biden … Continue reading

That’s the headline of this Houston Chronicle article, but the body of the article (which is behind a paywall) notes that there is a disagreement among experts on the point. Because the podcast payments went to a PAC, there’s… Continue reading

Matt Vasilogambros for Stateline: “This month, Wisconsin joined 27 other states that have banned or restricted local governments’ use of private donations to run cash-strapped election offices, buy voting equipment or hire poll workers for Election Day. “All of… Continue reading