On a recent episode of Amicus, Dahlia Lithwick spoke with Michael Podhorzer, a political analyst who was involved in the 2020 effort to adhere to the actual vote despite Donald Trump’s efforts to the contrary. They talked about the entire structure that ought to undergird American democracy, how it has been compromised, and what we miss about the fight over norms. The two also touch on what the media learned from covering Trump, and how that lesson might be more broadly applied.
An excerpt of their conversation is below—listen to the full episode for the entire conversation:
Dahlia Lithwick: I’m just going to read you to you for a second. When the court was arguing Moore v. Harper, you wrote in your newsletter, “We know the drill. SCOTUS reporters, cable commentators, self-described democracy defenders will tell us the facts of the case, deconstruct the stupidity of the independent state legislature theory. They’ll make arguments against it. They’ll speculate on whether the court will take a maximalist position.” And you essentially said: It is long past time when it should have been obvious—we are victims of an intentional campaign. This is not principled differences.
You point out that the way we cover cases is this kind of case by case. Affirmative action, good thing, bad thing, as though they exist in these atomized bubbles, as opposed to a systems-busting process. And the way to look at that, in your view, I think, is through all of these democracy-warping cases. Is that a fair assessment of what you’ve been trying to get at?
Michael Podhorzer: Very much. Yeah. But it also tries to make explicit that those six justices are playing for the same team that Mitch McConnell is, that Kevin McCarthy is, that Fox News is. They’re not separate. They’re all part of the same agenda.
And what each of them does makes the other stronger in a way that lets them make them stronger. McConnell puts the right judges on, the judges do campaign finance, so there are more Republican senators, and the gerrymandering, so that Republicans can actually win a majority in the House, and then they prevent Biden from—and it is a cooperative endeavor. It’s not them off in their robes unaware of that, not understanding the way this is all part of the same thing.
This leads me to … you’ve written also about the ways this manifests in the states, and you say the court has had this outsized role in shaping what you called “the reestablishment of authoritarian enclaves.” And I wonder if you could just walk us through that argument, because I think it helps us understand how you can be in a red state that simultaneously—I’m thinking of Kentucky or Kansas—renounces abortion by ballot initiative, but cannot get out from under complete red state control.
Sure. It’s a little bit different in places like Wisconsin, but in the old Confederate states, the states that did have Jim Crow laws, the process has been essentially the same. And one of the things that’s important that I should throw in here is—I’m not a fatalist about this. I don’t think that this all has to be happening. I think that 2009 and ’10, these forces hit the jackpot because of the backlash against Obama. And the intensity, the key moment, a way to get here, is Nov. 4, 2008.
And on that evening, McCain came on and graciously conceded that Obama had won, and began by saying that’s an important, positive thing for America. And to me, that’s really what made the Tea Party. The Tea Party, representing the religious and more problematic part of the Republican coalition that had been the junior partner, realized that the establishment corporate part of the party had to go, RINOs, the whole thing.
From that point on, the Tea Party was all the racist things we experienced against Obama, but it was also a political project to purge the party of people like McCain. And because their first election was 2010, they hit the jackpot, because they got 83 new people into the House that were there through Tea Party fury. And it was a redistricting year, so they were able to gerrymander the House, but more importantly, the state legislatures, so that opposition to them was never going to come.
If what you are saying is true, and if the engine behind this is partly the Supreme Court making decisions that go back to Citizens United, what’s the fix? And I mean that with two parts. I mean, what’s the fix in terms of how we reengineer this so that it’s doing what it’s meant to be doing, but also, for those of us who are writing and thinking about the court in this, how could it look different? And I know that those two questions are totally different, so maybe take them sequentially.
I think the essential part of the fix is not to jump into trying to think about what legislation we should pass or what kind of tweaking we need to do. Because if you understand what’s going on, you realize we don’t have the power to do any of that.
The first step has to be acknowledging that this is what’s going on. And an interesting case study here is what happened in the last half of 2020 when the media went from covering Trump in a kind of both-sides way. If he did something, someone had to be quoted as, “he was lying.” [But after the 2020 election], that basically went away. And when it went away, everybody outside, in the reality-based world, it concentrated everybody’s minds, and we were able to overcome something for which, if we’d been sitting doing this podcast in February of 2020, I wouldn’t have been able to answer, which is, How are we going to get him to leave, right?
But the fact that this coalition came together from corporate America to labor left was a product of everyone being on the same page. And that coalition has to come together again to make progress towards what we’re talking about. Because otherwise there’s not really a lever that we have right now that can sort of get us there—because there isn’t a consensus that it looks the way I’m describing. And so there’s really not a consensus about what needs to be done.
Just on the media piece, I’m interested; you’re saying, essentially the second half of 2020, we stop doing, “On the one hand, mail-in voting is all going to be fraudulent,” says Bill Barr and Donald Trump. We just stop, we just start writing about systems, I think is what you’re saying.
Right, but also when Bill Barr, in the first half of the year when COVID hits, like any sane person, says, “Let’s do this election by mail,” he also comes out and says all this stuff about fraud and mail and everything. And immediately there are studies about how mail was harder to commit fraud in. And it hasn’t given anyone a partisan advantage. And the stories are: “Trump says this, they say that.”
By the second half, when Barr says it or Trump says it, for which there’s no evidence, they never just reported these lies. They debunked them in the process of reporting them. And so you had, as you’re coming to together, there was the space for usually nonengaged actors to join that effort.
It took three and a half years before the mainstream media could say, “Donald Trump is lying,” or as you, I think, are suggesting, “Donald Trump is irrelevant, not interesting.” Right? Took three and a half years. And now here we are in 2023 and it feels like, have we unlearned all of that? I mean, I feel as though we are now watching Tucker Carlson showing video suggesting that Jan. 6 was tourists at the gift shop. The Dominion lawsuit to me is bone-chilling in terms of: Fox News personalities clearly knew that they were putting lies on air and did it. Is there a progression here towards something better, or is this an ebb and flow and we are backslid to the point where both the media and, I want to say, big business, are sliding back to sort of pre-2020?
Oh, yeah. That’s the hard thing to swallow about the situation we’re in, is that the mainstream world wants to believe that after winning an election, that’s it. And now we can go back to the stuff we have fun doing. And it’s like instant amnesia, just recurring amnesia after each election since 2010.
We could see, in the reaction to the midterms, this happening, where it was not as bad as the conventional wisdom said it was going to be, and that somehow became a victory for democracy with nothing to temper that enthusiasm, and only takes a couple of months to realize, “Oh, yeah. They own the House now and look at what they’re doing.”
And it’s reflective on the court reporting, too. It’s that [the conservatives] understand that this is a war, they have a long-term goal, and they’re fighting it. And then every time they do something, we all treat it as, “Oh my God, they just did this thing. Let’s react to that thing,” rather than seeing it as in this larger context.
Mike, you had such a thoughtful piece, you said, “Of the 122 pro-insurrection Republicans on the ballot, an astonishing 94 percent faced no possibility of electoral consequences in the midterms for trying to overthrow the president.” This is exactly what you’re describing that we like to say. Jan. 6 was aberrational, the system held, all these 60 lawsuits get kicked away. And we don’t understand that we were hanging by a thread in the 2020 election, hanging by a thread on Jan. 6. And that in the midterms, because of the structural stuff you’re describing, the gerrymandering, the vote suppression, Moore v. Harper, there’s no consequences throughout the system.
Right. And that essentially almost 100 percent of the victory consisted of not losing. With the exception of Katie Hobbs winning the governor’s office, and because of the independent commission taking the Michigan Legislature, [which] is not trivial, but really there was not an advance of democracy. Kari Lake is just not governor of Arizona.
And one of the things I was saying about this is that you’ll never get to the Super Bowl by beating the spread every week. And we seem to be a side that just cares about beating the spread and not actually winning.
In that sort of victory lap about democracy winning, no one even mentioned the millions of people who either didn’t vote or had it become much harder to vote in the 2022 election. I mean, it’s like you basically grandfathered every anti-democratic thing that had happened and then said, “Okay, we start again.”