January 6th Congressional Hearings and Democracy

The January 6th Committee's hearings in the House of Representatives exposed attempts by Donald Trump to subvert the Constitutional system used to elect Presidents. The hearings documented two facts. First, President Trump was intent on overturning a fair election that he lost so that he would remain President of the United States. Even when presented with the fact that the election was conducted fairly according to the Constitution, he continued to pursue extra-legal and unconstitutional means to change the outcome. Secondly, the only reason he failed was because of the commitment of mostly Republican leaders, including Vice-President Pence, to uphold the Constitutional process of transferring power after an election.

Difference between a constitutional process and democracy

The committee focused on the integrity or lack of integrity of individual people. Most of the people involved had taken an oath to uphold the Constitution. Neither President Trump and his co-conspirators nor the people who ensured the non-violent transfer of power to President Biden were driven by a commitment to democracy. Trump was unsuccessful because people were loyal to the Constitution.

In his opening comments at the House select committee investigating the January 6th Capitol attack, Rep. Bennie Thompson (D-Miss.) said, "Thanks to everyone watching tonight for sharing part of your evening to learn the facts and causes of the events leading up to and including the violent attack on January 6th, 2021, our democracy, electoral system, and country."

Later, Rep. Thompson made a stronger claim that "democracy" was the issue being addressed by the Congressional hearings. "But for Donald Trump, that was only the beginning of what became a sprawling multistep conspiracy aimed at overturning the presidential election, aimed at throwing out the votes of millions of Americans, your votes, your voice in our democracy, and replacing the will of the American people with his will to remain in power after his term ended." The problem is that the Constitutional process of electing a President is not designed to reflect the 'will of the American people.' And more to the point, the Constitutional process in this century has failed to always produce an outcome that reflects the will of the American people.

Throughout the hearings, the committee and witnesses referred to "a threat to democracy." Although the process that resulted in Donald Trump becoming the President in 2016 was Constitutional, it was not democratic. Hillary Clinton received 48.2% of the votes, while Trump received only 46.1%. It was never the will of the people to have Trump become the President. Not in 2016 or 2020. In both cases, it was the Constitutional process, not a commitment to the values of democracy that was at work.

The winning presidential candidate lost the popular vote five times in America's more than 200-year history. Two of those elections were in the 21^st century, the elections of Donald Trump and George W. Bush. In 2000 George Bush won the presidency with 47.9% of the popular vote. Al Gore received 48.6% of the popular vote. In the 21^st century, the winner of the presidential election was not the winner of the popular vote one-third of the time. If America had a democratic process of choosing presidents, then the outcome should reflect the will and wisdom of the people.

It is possible to go too far. The danger of radical commitment to the Constitution was illustrated by the testimony of Rusty Bowers, the Republican Speaker of the Arizona House of Representatives. He said, "And it is a tenet of my faith that the Constitution is divinely inspired, of my most basic foundational beliefs. And so, for me to do that because somebody just asked me to is foreign to my very being. I – I will not do it." An unwillingness to honor a request to ignore the Constitution is worthy of praise. But the Constitution and its amendments were not created by a divine being. To truly honor the Constitution means to take seriously the very human responsibility of improving our form of government using the non-violent processes of Article V.

Ignoring the distinction between the constitutional process of electing the president and the democratic value of government based on the will of the people resulted in the January 6th hearings completely missing an important reason that the attack on the capital building occurred. If the American  constitutional process of electing presidents had been modified by amending the Constitution to make the process more democratic, Trump would never have been elected in 2016; he would never have been in a position to attempt to subvert the Constitution in 2020.

It should not surprise us that the constitutional presidential election process does not always reflect the will of the people. In the Federalist Papers, authors of the Constitution made it clear that they did not trust the will of the people. They feared that passions would guide the people. So, they set up a republic where a few white men were delegated to rule using reason and limited powers. In 1804 the Twelfth Amendment to the Constitution established the process used in every election since then. Five amendments have made significant modifications to the process without addressing the flaw that the process does not represent the will of all the people. Three amendments guarantee participation by people of all races (Amendment 15), residents of the District of Columbia (Amendment 24), and citizens 18 years old and older (Amendment 26). Amendments 20 and 22 clarify procedures without changing the process.

The constitutional process is an ingenious invention that was designed to gain the support of the original thirteen states. Each state is apportioned a number of individuals to participate in an Electoral College. The number is calculated by adding two to the number of members of the House of Representatives from the state. Each state has responsibility for determining how the electors will be selected. If no individual receives a majority of the votes in the Electoral College, then responsibility for naming the president is assigned to the Congress. The second process has not been used since 1824.

Making presidential elections more democratic

There are three glaring flaws with the system that can and have resulted in a president who did not win the popular vote. The first is that voters in states with small populations have greater influence on the outcome than voters in states with large populations. Secondly, because most states use a winner takes all approach, the election outcome is impacted by what states a candidate has very narrow victories. The third is that the votes of people who support third party candidates are thrown away, so those people do not participate in the final decision.

Various modifications to the current system have been proposed as possible ways to make America a democratic society where all identity groups are respected and participate equally. This may require completely reconceptualizing the office of the president. But for those who repeat the phrase, America may have an imperfect system of government, but it is still the best system in the world, I offer two possible modifications as examples of ways that more democratic values could be implemented. And if they had been put in place, Donald Trump would never have become president, and the January 6th insurrection would not have happened.

The first two flaws, states have unequal input and the margin of victory of a candidate can impact the outcome, were critical in Donald Trump's 2016 election. They can be addressed by doing away with the Electoral College. We could establish a national election where every person has one vote, so a vote from California has an equal impact on the outcome as a vote from Wyoming. If each person's vote counted equally, it would not matter what candidate wins each state. The state totals would become irrelevant, and the person elected would be chosen by the "will of the people."

A suggestion to address the third flaw, votes for third party candidates are thrown away, is sometimes called "Every Vote Counts" or "Ranked Choice Voting." With this system, voters rank candidates according to their preferences. If a voter's first choice cannot help that candidate win, then the next choice is counted. This is repeated until a candidate has majority support. This democratic process is gaining popularity in state and local governments. Already Alaska and Maine are moving forward to use ranked choice voting in presidential elections.

The impact of third-party candidates is illustrated in the outcome of the 2000 election where George W. Bush lost the popular vote but was named the president. Florida was a hotly contested state that gave Bush their electoral votes and ensured his election.

When the Supreme Court stopped a recount in Florida, the official tally was that George W. Bush had 538 more votes than Al Gore. Ralph Nader, the Green Party candidate, had 97,488 votes. Other candidates received a total of 41,113 votes. It is very unlikely that the second choice of these 41,113 people would all have been Bush. People who supported the Socialist Party and the Socialist Workers Party are unlikely to have Bush as their second choice. But let's assume that all of these 41,113 voters wanted Bush as their second choice. Then if 72% or more of the Nader supporters named Gore as their second choice and second choice votes were added to each candidate's total, Gore would have won Florida.

Other issues

There are additional ways that the election of presidents can align with the values of democracy. These do not all require modifying the Electoral College. An example is ensuring that voting is equally accessible to everyone. Some states like Colorado mail ballots to every registered voter. The ballot can be mailed back or returned to a drop box.

There are serious issues with the way that money plays a role in presidential elections. This distorts democratic values by giving extra voice to those who are wealthy. Closely related are the monitoring and the distribution of information. Regulations in the past requiring those who have licenses to use the public airways to provide equal time to competing candidates and ideas ensured exposure of all voters to opposing views.

The hopeful learning from the January 6^th Congressional Hearings

In the 21^st century the American people have broken into camps with different visions for the future. A few people were driven to White Nationalism because they could not imagine a multicultural nation where they fit in. They are the focus of the January 6^th hearings. Others identified with the vision of every citizen having as much freedom as possible to pursue their own interests. Others favor a harder to define approach to the future with a shared commitment to equality or equity. What these and other approaches to the future all have in common is the adherents believe that they are in a life-and-death battle to win.

In the 1990s some political philosophers struggled with the question of how modern societies can reject national identity based on one cultural heritage and still avoid falling into chaos with cultural wars. Some scholars were driven by a desire to establish political stability. Others were concerned about empowering all citizens of a nation regardless of their culture or identity. Out of these discussions came a loosely defined idea called “constitutional patriotism.” The German sociologist, Jürgen Habermas, is most commonly associated with the idea. Simply put, it proposes that the citizens of a nation can abandon national identity based on one cultural heritage and adopt a national identity based on a commitment to a Constitution.

The January 6^th hearings exposed that America has the foundation to become a unified multicultural nation based on constitutional patriotism. Americans with very different visions for the future put aside their we-must-win mentality. Republicans and Democrats ensured that the constitutional processes resulted in a non-violent transfer of power. In the hearings many of these patriots who were committed to the Constitution also expressed a commitment to democracy.

A commitment to the Constitution as it stands with an equal commitment to non-violently changing the Constitution when it is not fulfilling the values of a multicultural democracy is a path to creating a multicultural nation that is not based on racism.