There’s no single incident that perfectly captures the nature of modern conservative politics, but the lengthy, bad-faith Republican effort to destroy the Affordable Care Act comes close.
In 2009 and into 2010, Republicans campaigned against the passage of the ACA on the basis of slanders. They said that the bill, if enacted, would promote or require euthanizing elderly and infirm people to save money; that it took benefits away from seniors and gave them to working-age moochers; that its authors would build upon the idea that everyone should be insured by ultimately mandating broccoli consumption.
The campaign failed to prevent the ACA from becoming law, it succeeded only in making the new law unpopular. But Republicans didn’t stop. They then turned to the courts—already overpopulated by conservative jurists thanks to Bush v. Gore—and endorsed two different lawsuits devised to eliminate it. The first challenge rested on a legal theory—invented whole cloth in response to the law, but embraced as dogma on the right—that the Constitution prohibits requiring Americans to carry health insurance. The 5-4 conservative Supreme Court dutifully agreed with this novel argument, but Chief Justice John Roberts decided, in a last-minute fit of conscience, to join the Court’s four liberals to uphold the coverage requirement as a valid exercise of Congress’s power to tax.
The second challenge, even more farcical, exploited an ambiguity in the ACA’s text to argue that Democrats had secretly intended to wipe out most of Obamacare’s insurance subsidies. The case’s supporters made ridiculous assertions: They argued that Democrats had intentionally built a self-destruct mechanism into the most important legislation in a generation, and fabricated recent legislative history as “evidence” to support their claims. The lawsuit failed, but three conservative justices voted for the Republicans’ absurd argument anyway.
Ultimately, the second lawsuit, known as King v. Burwell, accomplished nothing, except to underscore just how aggressive and dishonest the right would be in pursuit of wiping the ACA off the books, and stripping health insurance from tens of millions of Americans.
In his opinion, Chief Justice John Roberts concluded with a veiled plea to right-wing activists to stop treating the judiciary as a workaround for their political failures. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
That would have been the end of the story but for some extraordinary luck and the help of FBI Director James Comey. When Republicans won the presidency and concurrent congressional majorities in 2016, despite losing the popular vote, it breathed new life into their legislative and judicial schemes to abolish the ACA. They first heeded Roberts’s advice and sought to repeal the ACA by statute, but failed to muster the votes they needed to pass new legislation. Somewhere along the way, Obamacare had become popular. Bruised, Republicans turned to their other driving policy fixation—regressive tax cuts—but did so in a way that fueled yet a third legal challenge to the ACA.
In the years since the Trump tax cuts passed, this pending lawsuit has loomed in the background like a theatrical prop, its significance misunderstood as a mere symbol of frustrated Republican ambitions. The challenge presupposes that, in voting for the tax-cut bill, Republicans in Congress secretly also voted to eliminate the ACA’s constitutional underpinnings, making it ripe for the Court to nullify. One of the provisions of the Trump tax cuts zeroed out the tax penalty Democrats established to enforce the ACA’s individual mandate. In 2012, Roberts had agreed that the mandate only works as a tax. Without a tax penalty, they now argue, the mandate becomes a plain command. That makes the provision unconstitutional, according to this suit, and therefore the Court should eliminate the entire health care law.
The argument’s obvious opportunism, and Roberts’ enduring distinction as the Court’s pivotal vote, led most political elites to dismiss the legal threat—after all, even with the retirement of Anthony Kennedy and the confirmation of Brett Kavanaugh there remained five votes to uphold the ACA.
But nothing is written. Justice Ruth Bader Ginsburg died in September, just weeks before the November 10 oral arguments in this long-shot ACA case. Against Ginsburg’s dying wishes, Senate Republicans quickly made clear they intend to fill the vacancy before the election. President Trump followed suit by nominating one of the most openly anti-ACA judges in the country, Amy Coney Barrett, to take over Ginsburg’s seat. He openly mused that by confirming her as quickly as possible, she would be in place not just to strike down the ACA, but possibly to install him for a second term in office against the will of the public.
In anticipation of a coming defeat, Republicans at all levels of government have taken extraordinary steps to encumber emerging Democratic majorities. This has included efforts to reduce Democratic electoral margins by challenging ballots and making it harder to vote. At the federal level, Trump’s administration has cut the Census count short, so that he can certify a congressional reapportionment that omits millions of Americans. The GOP has also deprived the public of relief from the Trump-coronavirus recession, which will saddle the incoming government with an economic emergency.
But Barrett is the crown jewel, the missing piece that Republicans believe will allow them to dominate national policy making without requiring them to adopt an agenda that can actually win popular majorities. Barrett embodies the Republican dream of imposing conservatism on the masses without ever having to take difficult votes or admit to the right’s true beliefs. She also represents what Republicans have been seeking in the courts since 2010: the power to destroy Obamacare without first receiving permission from the public, then pretending it wasn’t their doing. Thus the absurd spectacle of Senate Republicans distributing talking points to downplay the threat Barrett poses to health care, on the grounds that their own lawsuit is “ridiculous” and unlikely to succeed.
Republicans now head into the election appealing to voters with three deceptions: That they support the pre-existing conditions protections they’ve asked the Supreme Court to annul (in a lawsuit they apparently agree is frivolous); that their zeal to replace Ginsburg in the midst of an election they’re poised to lose has nothing to do with health care; and that any attempt by the Democratic Party to undo the GOP’s multifaceted theft of the courts would constitute an unacceptable breach of the norms they’ve spent five years gleefully sundering.
As the leader of the Democratic Party, Joe Biden awoke late to the nature of this opposition, and remains of two minds about it. He has adopted strategically wise negotiating positions on the kinds of reforms that would bring American citizens greater political equality, and force Republicans to compete for votes, rather than suppress them. At the same time, he remains committed, at least in public, to the view that Republicans can be persuaded to be loyal opponents. “What I learned a long time ago is that it’s always appropriate to question another man or woman’s judgment,” he said at a recent town hall event. “It’s never appropriate to question their motive.”
Before Donald Trump’s presidency, this kind of boilerplate was bipartisan, the sort of thing even the most strident members of both parties repeated robotically to convey a largeness of spirit. But what if it’s wrong?
The Republican Party’s core rottenness—its dishonesty, corruption, pettiness, racism—is the defining political fact of our time. Whatever we say about it, confronting all of us in the weeks and months ahead is the more important question of what we do about it. What do the rest of us—most importantly elected Democrats, but also journalists, political elites, and regular citizens—need to change about public life to account for the fact that one of the two major parties has embraced bad faith as an organizing principle?
As I sat down to write, I found myself daunted by the challenge of choosing a single episode to exemplify this scourge of right-wing nihilism. Was it the time Republicans fanned conspiracy theories and otherwise exploited the 2012 deaths of four Americans in Benghazi, Libya, for political gain, only to completely abandon any pretense of caring once they won an election, then shrug off the preventable deaths of hundreds of thousands of Americans on their own watch? Is it a greater irony that the very conservatives who now ask seniors to sacrifice their lives for the greater good of perpetual Trumpian rule once embraced the death-panels smear, or that they refer to themselves as “pro-life”?
What about the fact that the GOP ran an entire campaign against the supposedly disqualifying, even felonious, email practices of a Democratic presidential candidate only to turn around and conduct foreign affairs over WhatsApp and dole out state secrets like candy? Is that worse than the fact that Republicans hit the fainting couches when a sitting attorney general and former president exchanged pleasantries on a tarmac, then cheered on Trump as he enlists all of the security services in his re-election campaign, and complained to reporters that Trump’s attorney general is screwing him over by not baselessly charging Democrats with crimes?
As a writer this problem presents itself as an embarrassment of riches, but as an American it’s really just an embarrassment.
Some amount of lying, and even more hypocrisy, is inevitable in politics. The Democratic Party isn’t immune. But it would be a mistake to confuse the acts of bad faith that have saturated Republican conduct for garden-variety hypocrisy or lying. These contradictions don’t point to a lack of self-awareness or passing acts of shame-faced expediency. Republicans and professional conservatives revel in double standards because by embracing double standards they claim power over their opponents. The Republicans have become a party that celebrates rulebreaking, because they have come to see rulebreaking as a show of strength. Their moral compass, inverted by their single-minded pursuit of self-interest, now points south.
Conservatives will attempt to muddle this distinction, but it’s an important one, and we can actually distinguish acts of deception from programmatic bad faith pretty easily. A hypocritical politician might preach the virtues of monogamy only to be caught in an affair. A lying one might deny the affair, only for evidence (of his deception and his hypocrisy) to surface. In all this disgrace, though, a liar and a hypocrite might still govern without corrupting his office, let alone his entire party.
We started with health care, which is a happy coincidence, because in the right’s telling, President Obama’s early mantra about the ACA—”if you like your plan you can keep your plan”—was not literally true, and therefore a mortal political sin. Was it a lie? If you’re feeling ungenerous, you might say so. To me, the episode exposed the risk politicians face by speaking categorically about things that are true in general, but not in every instance. Some small minority of citizens took Obama literally and discovered the more nuanced truth the hard way, and Republicans made Obama suffer for it.
But even if you consider it a lie rather than a mistake, it’s still distinct from the kind of bad faith the right traffics in habitually. After Obamacare passed, nearly everyone who already had health insurance remained in the same system—most workers continued to obtain insurance through their employers; seniors remained Medicare eligible, veterans V.A. eligible, the poor on Medicaid. Obama sought to reassure them that this would be the case, that the systems they depended on wouldn’t change structurally. Republicans, by contrast, tried to convince people that the law would do things that weren’t in evidence in the text of the statute, the legislative history, or anywhere else. When those horrors failed to materialize, they railed against shortcomings of the law—high premiums and deductibles—that they had neither any intention of fixing, nor any substantive objection to: High cost sharing is actually a fixture of their own health care policies. After the law passed, they concocted pretexts for challenging the law in the hope that partisan judges would eliminate it for them, and when the law became popular, they lied about the implications of their own cynical litigiousness. When Senate Democrats observed that the GOP rush to confirm Barrett before the election is central to this strategy, Sen. Ted Cruz (R-TX) responded that “every single member of the Senate agrees that pre-existing conditions can and should be protected. Period. The end. There is complete unanimity on this.” They do not; there is not; but to avoid accountability they had to choose between moderating their policy views and lying about them, and they chose the latter.
That is bad faith: The remorseless, even jubilant subversion of principles—particularly the principles of honesty, consistency, fair play—to momentary political advantage.
This established pattern of behavior would be difficult to reckon with even if it were widely understood and acknowledged. It becomes impossible when the political system, including the opposition party, is structured around the view that “it’s always appropriate to question another man or woman’s judgment” but “never appropriate to question their motive.”
If after four years of the Trump presidency, we can’t stipulate that Republicans have been malicious rather than simply misguided, we may as well also stipulate to their implicit terms: that rules, laws, and norms apply only to those who care about rules, laws and norms. We may as well stand back as they transform the United States into a kleptocracy.
Alternatively, we can free ourselves from any sense of obligation to behave as though we were born yesterday.
It’s difficult to know exactly what it would require to steel our political system against a party that operates in bad faith. Conservatives can’t be made to embrace procedural neutrality or to be more honest in their political conduct, but other institutions that must engage with them in democratic affairs can take steps to censure bad-faith acting, and assure that such acting isn’t allowed to control political outcomes.
The health-care issue is instructive here once again. Part of the reason Republicans had so much early success in shaping public opinion about Obamacare is that Democrats began the legislative process with an arbitrary commitment to chasing Republican votes. One of the conceits of modern American liberalism, now badly outmoded, is that bipartisan consensus, and consensus among stakeholders, are key to building public trust and durable policies and institutions. It’s a pleasing notion. But it only works if we assume that all parties will conduct themselves in good faith. A president who promises to bring the parties together can succeed if both parties are amenable to compromise. When the opposition party is steeped in bad faith, though, he merely hands his opposition the power to turn him into a failure and a promise-breaker. A party that prizes minimizing conflict over partisan policy victories likewise hands an unscrupulous opposition the power to derail its agenda.
That’s exactly what Republicans set about doing a decade ago. Democrats spent the better part of the ACA debate chasing Republican votes (and eventually a single Republican vote) that Republicans had determined in advance never to concede. By the time Democrats recognized the futility of their quest for bipartisan cover, the acrimony of the process had already eroded public support for health-care reform. From there, Democrats worked to reach consensus among themselves, but did so in a way that offered the most conservative Democratic senators veto power over progressive ideas. Republicans united in opposition to reform, Democrats mired themselves in infighting, and public opinion followed. Over a year after they began, they passed the ACA, but the public had turned against them, and they paid a steep price for it.
Mitch McConnell took pride in his deviousness. He bragged about it repeatedly. But if he makes no secret of the Republican opposition strategy, Democrats shouldn’t feel obliged to pretend it’s a secret either. They can begin their legislative processes under the assumption that Republicans will never vote with them, they can craft bills that have buy-in from all wings of their party, but not the GOP. And when they write those laws, they can let the majority of their party, rather than the rightmost (or leftmost) fringe, shape the terms.
They can also codify norms so that Republicans can’t violate them or take hostages going forward. Rather than increase the debt limit, they can eliminate it; rather than devise new stimulus every time the economy turns downward, they can create permanent programs that snap into effect when unemployment climbs. Donald Trump proved that Republicans will withhold disaster relief from states that don’t vote for Republicans; Democrats can change the law to treat all victims of disaster equally, no matter their politics or the partisan leanings of their states. Rather than shame Republicans out of suppressing votes, they can expand the franchise by law. Rather than acquiesce to the GOP theft of the courts, they can expand the judiciary, erasing decades of conservative scheming to rule the country without winning elections.
These are strategies that the House and Senate can implement. But they won’t do it without presidential leadership, and that would require Biden to govern with the understanding that Republicans don’t just disagree with him, but want to destroy his presidency. He can’t, for instance, stop Republicans from pretending to care about deficits the minute Donald Trump departs the political scene, but he doesn’t have to play along. When they pretend to believe that backward looking accountability for Trump’s wholesale corruption of the government is petty retribution, he can ignore them. Or he can behave as if he was born yesterday.
From one perspective, these would be radical changes to the Democratic Party’s usual modus operandi. But if politicians care about anything, it’s self-preservation. Biden may prefer the old way of doing things, but that may change if the choice before him is between breaking with the old ways and accomplishing nothing at all. No one runs for president in their late seventies if they don’t care about legacy. If bad-faith tools of obstruction like the filibuster or deficit scaremongering threaten to derail his administration, why shouldn’t he change his mind about them?
Media institutions don’t face these same incentives, but it may be possible to shame them into bearing faithful witness to the state of affairs in American politics. Decades of right-wing smears have driven the vast majority of conservative Americans away from mainstream news outlets into a cocoon of right-wing propaganda. Those mainstream outlets have responded largely by capitulating to the refs: loading panels and contributor mastheads with Republican operatives or committed movement conservatives; chasing baseless stories to avoid accusations of bias; adhering stubbornly to indefensible assumptions of false balance; subverting the truth to lazy he-said/she-said dichotomies. None of it can or will appease their right-wing critics, who don’t mean to influence the media, but to delegitimize it. None of it has drawn Fox News viewers and Breitbart readers back into the market for real news.
Still, legacy media outlets won’t stop doing these things on their own, or without another viable model of journalism to replace it. So one concrete demand their consumers can make of them is to stop giving bad-faith actors platforms to spread disinformation to their audiences. The people responsible for the sorry state of American discourse—the conspiracy theories, and lies, and whataboutism—should be scorned, not rewarded with publicity. The Republican elite has been so in thrall to Trump that ostracizing bad-faith actors would make it difficult for news channels and op-ed pages to represent Republican points of view, or so their hosts and producers and editors would say. But that isn’t really the case: Inviting a Republican on to a reputable news show to claim Republicans support pre-existing conditions protections doesn’t offer viewers the Republican position, it offers them a lie.
News outlets should feel obligated to offer their consumers truth, rather than balance and equal partisan representation. The idea isn’t that journalists should take sides in grand fights between liberals and conservatives, but should accurately portray the conflicting worldviews that drive those battles. Studiously neutral political journalists can still alert viewers to the fact that the Democratic Party is a descendent of a liberal tradition, while the Republican Party has evolved into something that more closely resembles the authoritarian parties of European democracies. That isn’t the same thing as making a choice for viewers, it just accurately describes their options.
Paragovernmental organizations like think tanks and law firms and advocacy shops would face similar conundrums. They tend to vacuum up retired and defeated politicians robotically to help fundraise and steer their public policy shops. This rotten ritual that has larded the conventional wisdom in Washington with nonsense and corruption for a long time. But after Trump, returning to business-as-usual would be catastrophic. Offering sinecures to people who participated in Trump’s abuses is worse than revolving-door corruption—it provides an ongoing channel of support to malicious actors who conspired against the rule of law and the integrity of the American institutions. It may be inconvenient for these groups that so few Republican officeholders have kept their hands clean through these past four years. But post-Trump Republicans should have to face consequences for their decisions, and shouldn’t benefit from an amnesty because it allows the capital’s machinery to keep chugging along like normal.
Reckoning fully with Republicans as they truly are narrows the party’s options to compete with dirty tricks and bad faith. If Democrats and media institutions refuse to give unearned credence to bad-faith Republican positions, it forces Republicans to win arguments the old-fashioned way: by making the most compelling case. Leveraging elected majorities to overturn veto points like the filibuster or McConnell’s packed courts forces Republicans to fight back by winning elections themselves. If journalists refuse to take Republican lies seriously, it rewards the party for telling the truth. Over time, faced with collapsed credibility and no majoritarian path to power, conservative Americans may recognize that the only way to rebuild political power is to seek out new leaders, and build new, better, uncorrupted institutions.
Of course, it’s also possible that nothing of the sort happens. In California, Democrats managed over the course of many years to fully marginalize the state Republican Party after it descended into similar nihilism. Instead of competing, the California GOP has contented itself with the margins. If anything, it has grown crazier.
National Republicans may go the same way. They view the prospect of offering the rights of statehood to the citizens of Washington, DC, and Puerto Rico not as an opportunity to compete for more power, but as a plot to dilute the power they have. The prospect of gaining legitimate power in a modern, humane world strikes them as impossible, because they can’t imagine reconciling themselves to such a world and the desires of its free people. Confronted with fair House maps, automatic voter registration, a representative judiciary, and an adversarial press, they may recede further into the fringes.
But the choice should be theirs. Their recalcitrance brought the country to the brink of destruction and it should not now compel the rest of us to let bygones be bygones. If in the name of unearned and unreciprocated comity we grant Republicans a seat at the table and a voice in governing, they’ll learn only one thing: that cheaters prosper. If we do nothing but elect Joe Biden and close the book on the past, things will only get better until the pendulum inevitably swings back again, and Republicans come roaring back to power unchastened.