Two Pedantic Problems with Representative Estes's Post

Dear Representative Estes,

Thanks for sharing your reasoning about your January 6 challenge to the Electoral College results, thus your challenge to the certification of President Biden's election. I am in complete sympathy with your statement that "all of us are appalled at the violence, destruction and loss of life that took place at the Capitol on January 6," and I heartily endorse your closing call for your readers to "join me in praying that our country has a renewed commitment to civil discourse." That is all very well said, and I appreciate your including it.

However, you also included a couple of statements that trouble me. Once is simply wrong, and the other misunderstands something that is implied by the first. So forgive me, but I feel a need to play the professor here for a moment. You wrote:

"The Founding Fathers did not want Congress to select the president. Nor did they want the judicial branch, or even governors to do so. That was the responsibility of the state legislatures."

Of course, this isn't correct; the people who wrote the U.S. Constitution stipulated that it was the members of the Electoral College chosen by the states that would select the president of the United States. Those electors are chosen in accordance with procedures established by the respective state laws which obtain in the different states, and since those laws are written by elected state representatives, I suppose you could argue that "state legislatures" are ultimately doing the selecting. But by jumping those steps, you set up the foundation for your action (specifically that "I, along with a majority of the Republican Party in the U.S. House of Representatives, raised objections in regards to what we believed was evidence that several states violated their own laws in administering the 2020 election as they pertained to the office of the president") in a way that side-steps an important truth.

That truth is that those state laws regarding the appointment of electors, just like the state laws regarding all electoral matters--voter registration, absentee ballots, etc.--are subject to constitutional challenge, such as any citizen (including yourself, Representative Estes) may bring. The rights laid out in the amendments to the Constitution have been extended and applied by the Supreme Court many times over the past 232 years to enable citizens to defend the principle self-government. And, of course, when citizens, or their elected representatives, bring forward such constitutional concerns, it is the place of judges in our system to make an adjudication as to the validity of the concerns so expressed.

What is the point of emphasizing this? Simply that when you allege that state legislatures "violated their own laws," what you are actually doing is alleging something constitutionally nefarious when elected representatives, or the election officials they appoint, adjust their statutory requirements (including deadlines and the like) regarding mail-in ballots, or ballot drop boxes, or more, during the pandemic. They did this not just to compensate for the change in voting patterns which the health concerns of the pandemic introduced, but also because if they didn't make such adjustments, they would be subject to exactly the sort of legal challenges which your own column vaguely refers to (though I note that, while you invoke the Constitution multiple times, you only ever call what the state legislatures or state election officials did "improper," not "illegal"). The whole point of these election laws is to support the exercise of constitutional voting rights by the people; when circumstances stand in the way of the exercise of those rights, officials of government are obliged to act. 

Now, if those actions themselves violate someone else's rights (as apparently former President Trump believed they did, since he insisted over and over that he'd won the election by a landslide, and had been robbed of his victory by electoral fraud), then they need to go to a judge and make their case. Which Trump's lawyers did, dozens of time, with a total of 46 out of 54 lawsuits being almost immediately dropped, dismissed, or ruled against for a complete lack of evidence (the rest are currently in the midst of the appeals process). Meaning, in short, that the system which we have determined, over and over and over again, that the claim that state legislatures had vacated their responsibility in regards to the means by which appointed electors make their selection is simply groundless. Rather, it was their view that election commissions, governors, state judges, or even committees of legislators themselves, in these several states, had acted responsibly in the determinations they made about statutory election requirements. In the eyes of the courts, there simply was no demonstrable constitutional harm done here. Which means that, strictly speaking, in accordance with how our constitutional system is supposed to work, your belief that, for example, "the Democratic majority of the Supreme Court of Pennsylvania unilaterally violated the U.S. Constitution," is simply nonsensical, because the Supreme Court of the United State itself said so.

Of course, if you want to insist that your love of the U.S Constitution obliges you to disregard the judicial functions which that same constitutional system sets up, that's a political belief which you have every right, as a citizen, to advocate for, and you'd find me agreeing with you partly as well. (You and me, Representative Estes: down with the imperial judiciary, and down with the power of judicial review!) But note that I called that a "political belief," because that's what it is--a belief about what ought to have happened in our polity (which presumably is, in your case, at the minimum: "election officials shouldn't adjust statutory requirements for ballots in the name of supporting voting rights during a pandemic without a complete change in state law"--though maybe, to be frank, the political belief here is actually just: "Donald Trump should be president"). Which leads me to another concern I have with your column. You write:

"In America, we must be able to use the legal processes prescribed in the Constitution without fear of retribution by those who hold the levers of political power."

In your column you speak on a couple of occasions of the "legal and political processes" of government, and as a way of expressing a general point, that's fine. But if you're going to specifically refer to "the legal processes prescribed in the Constitution," then I have to remind you of everything in the previous five paragraphs: the actual "legal processes" which follow from applying the Constitution as written involve petitioning judges to consider potential constitutional violations, and they didn't find any (in fact, usually Trump's lawyers, knowing they had no evidence that met the standard of scrutiny and not wanting the get disbarred for lying to a judge, mostly averred that there wasn't any fraud at all). So you may want to rephrase this to speak of "political processes" alone, rather than legal ones.

Am I saying that when you and other House Republicans objected to certifying the Electoral College votes, that you were doing something illegal? Of course not; as a member of Congress, it was perfectly legal for you to vote however you wished. But the idea that you were legally obliged to so act, or that your actions followed any kind of legal necessity, is silly. You made a political stand, as is your right, but you had no legal rationale for doing so.

And remember, that making political stands--that is, standing up on behalf of a political belief--is a symbolic action. It's not necessarily just symbolic, of course: when one votes, or engages in a protest, or writes a column for a local newspaper like you did (or writes a blog post in response to it like I am), there are often real-world consequences in play: someone might get elected or not, someone might be arrested or not, someone might be persuaded or not. But even those real-world consequences exist in relation to the symbols and associations which surround them. You recognize this yourself; you associate your action with enabling "millions of Americans the ability to voice their opinion" and with honoring "my constituents and the Constitution." So let's think about the particular moment, and some of the other associations which were in play at that moment, when you stood up to be counted as challenging the legitimacy of electoral votes which dozens of courts (many of them filled with Republican judges) had found legitimate.

The Capitol Building, just hours before you voted, had been attacked by a mob determined to do what you did, only much more violently and directly: oppose the certification of President Joe Biden's Electoral College victory. Five people died as a result of that violent attack--the worst which the Capitol has experienced in over 200 years. There were people looking for the person who is in charge of the House you are a member of--Speaker of the House Nancy Pelosi--with the apparent intention of kidnapping or killing her. Are you responsible for them? No! (Or at least, certainly not nearly as much as former President Trump, who fed them the delusional nonsense which led them to make the attack.) But in the final moment, I fear your actions fell symbolically on the same side of the rioters. After all, you were, at the very least, being motivated (or at least so you claim; I'm writing all this under the assumption that you were sincere in your column, and not just covering up the simple self-interest of keeping the Trumpist voters in the Kansas Republican Party on your side) by the same legally groundless political convictions about supposedly "improper" state electoral determination which Trump employed to fire up the mob in the first place. You may say that you were solely acting on behalf of Kansas Republicans who embraced Trump's dismissed claims about fraud, and you may genuinely believe that. But you can't wish away the symbolic weight which the House carried at that moment, in the wake of insurrectionary violence which was only a few steps logical steps removed from your political cause.

You could, I suppose, embrace this association, and simply insist that while the rioters were utterly wrong in their methods, they were not utterly wrong in their cause. I suspect you'd denounce that as a terribly unfair connection to make, and you'd probably be right. But is it an unreasonable connection to make? That, Representative Estes, I don't think is the case at all.

A Tale of Two Congressmen (with a 10-Point Constitutional Excursus)

[The Wichita Eagle ran this morning an editorial of mine praising Senator Jerry Moran, one of my senators here in Kansas, for breaking with his party and voting in support of the resolution to deny President Trump the authority to use his emergency powers to claim non-appropriated funds to build his beloved wall along the Mexican border. Since my argument in that piece touches on matters of constitutionalism and presidential power that I've written about before, I decided to expand on my piece below.]

President Trump’s declaration of a national emergency back in February, which--in his view and that of his lawyers, anyway--gave him the authority to spend taxpayer money to build a wall along our southern border (despite Congress not having constitutionally appropriated funds for him to do so), has been, to say the least, divisive. That divide, or at least one aspect of it, played itself out interestingly in my own back yard--specifically, in the responses of two men men who represent me in Congress: Senator Jerry Moran (left) of Kansas and Representative Ron Estes of the 4th Congressional District of Kansas (right). (And yes, I know, as a resident of Kansas I am technically represented by two senators, but everyone who knows him--including most of those who genuinely like and have voted for him--knows that Senator Pat Roberts checked out of the whole "citizen representation" thing years ago, so I'll just leave him aside.)

Moran and Estes are both conservative Republicans, which is unsurprising--this is Kansas, after all, and despite some interesting developments and potentialities here in Wichita, south-central Kansas remains a pretty conservative place. Moran and Estes reflect that; their voting records show consistent support for identifiably conservative causes and the agenda of President Trump. (In Estes's case, his career congressional vote total is 95% in line with Trump; for Moran, it's a slightly smaller 89%.)  But in this particular case, those two interests--call them "conservatism," however defined, on the one hand, and the Republican party and its leader as a vehicle for expressing conservative goals, on the other--parted ways. You can chart the parting by looking at the comments Estes and Moran issued when Congress held a vote to remove the president’s claimed emergency powers in this case, as allowed under the 1976 law which presidents have invoked whenever they've used their emergency power over the past 40 years. When the House voted on the resolution in late February--and passed it--Estes voted against it. When the Senate voted on the resolution last Thursday--and also passed it, thus requiring President Trump to veto this legislation if he wants his emergency powers claim to move forward--Moran supported it. Why?

On my reading, Estes thought this issue was pretty straightforward. In a four-sentence statement, Estes mentioned President Trump by name three times. He spoke of Trump “rightfully exercising” his presidential powers, and of “supporting the president’s actions to address this crisis.” He was, in other words, voicing what probably seemed to him a straightforward political matter. The President of the United States was doing something which he, as a Republican, agreed with, and so as a good member of the president’s own party, he was going to support him. In this case Estes, as I think his statement clearly reveals, understood himself to be spokesperson for the Trump-supporting Republicans of his district; whatever else Estes may or may not think about any of the larger issues involved, to not support Trump’s agenda--particularly an agenda item that Trump emphasized all through his campaign and ever since--would be a political betrayal of those who voted for him. This is the "delegate" model of representation, and it is perfectly defensible.

For Moran though, the issue was anything but straightforward. His statement also mentioned President Trump by name three times. But that was in the course of a 26-sentence long outline of arguments, which wound around some of the fundamentals of our constitutional system (such as: it is “a violation of the U.S. Constitution” if the executive branch spends money that goes beyond “appropriations approved by Congress”), around fears for the future (such as: “this continues our country down the path of an all-powerful executive, something those who wrote the Constitution were fearful of”), and around basic ethics (such as: “the ends don’t justify the means”). To be sure, he made it clear that he basically agreed with his party’s (overwrought) concern about conditions at the southern border. But in this case, Moran’s conservative, Constitution-protecting values trumped (pun most certainly intended) the president’s aggressive claims to do what he thinks he must about those conditions. In this case, Moran was acting in accordance with the "trustee" model of representation: being entrusted by voters to use all one’s resources and experience to make, on their behalf, difficult decisions–which this one clearly was.

What do I, personally, think about that decision? Well, I think it was a good one--building a wall along our southern border is, in my view, a pointless waste of money, a needlessly and stupidly provocative approach to the problem of illegal immigration, a symbolic move representative of a genuinely inhumane way of relating to our hemispheric neighbors and the rest of the world, and contemptuous downgrading of hundreds of miles of precious environmental space. It ought not be built, and so if Congress can slow Trump's moves in that regard, they ought to. But given that, as a conservative Republican, Moran almost certainly disagrees with all of those points (except possibly the first; I suspect he really does have substantive fiscal complaints about the proposed wall), what about the substance of what actually brought Moran to his decision? That is, what do I think of his constitutional reasoning about the need to curtail the expansion of executive power through emergency declarations and the like?

More than 4 1/2 years ago, President Obama's move to essentially legalize millions of technically illegal residents of the United States created a firestorm of "Unconstitutional!" accusations, and I waded in. This resulted in a series of lengthy arguments between my friends Damon Linker, David Watkins, and myself. Rather than rehearsing all the theoretical claims and counter-claims those blog posts laid out, let me just briefly lay out, in the context of Moran's constitutional case for opposing President Trump's claim, how I think about the whole matter now:

1) Moran writes that, in his view, "if the enduring value of the Constitution disappears...Americans will be less free." I don't entirely disagree with that, but I wouldn't make that claim myself.

2) I wouldn't make it because it suggests to my mind a fetishization of the U.S. Constitution, and the particular sort of freedom it supposedly guarantees.

3) But I think if you look at our Constitution, or the very idea of constitutionalism, both historically and theoretically, you can see that it has primary served as a means of invoking (and thus defining, and thus also limiting) a particular sense of "peoplehood" as connected to a particular polity. In the modern, post-Westphalian world of sovereign capitalist states, that means it turns the demos into a creature under contract, plugged into and committed to (and perhaps empowered by, but perhaps also restricted by) a set of procedures by which "popular sovereignty" is expressed.

4) I'm not calling this a bad thing; on the contrary, liberal constitutionalism has been an important way by which a limited form of democracy could be realized beyond self-governing communities and on a mass scale, which has had many good results. Still, it simply isn't the sine qua non of freedom, and no particular constitution, most certainly including our own property-defending one, shouldn't be treated as such.

5) Does that mean I don't think it's a big deal when someone violates the constitution? No, I think it is a big deal--but I may disagree with many in what kind of big deal I consider it to be.

6) One thing that is essential to understand is that constitutions--again, speaking theoretically as well as historically--have been, and remain, performative in a way bodies of law in general mostly are not. Since constitutions generally do not define, and thereby do not either allow or proscribe certain actions, but rather define and thereby either include or exclude certain persons, or particular certain ways said persons may or may not qualify as citizens, or the particular roles those citizens may or may not execute in diverse ways, there is a qualitative element to questions of constitutionalism that is simply besides the point in most other areas of law.

7) This means it is perfectly reasonable, I think, to declare an action both legal and unconstitutional. Someone--say, a President of the United States--could take an action that is arguably within the realm of legal statutes, but has taken that action in such a way, or justified it with such arguments, or made the choice to take that action in such a context, as to reject the norms, traditions, assumptions, or provisos that have developed in conjunction with the performance of the constitution in question. (This, for everyone who didn't bother to click on the links above, is what I said about Obama's immigration order--legal, but not constitutional.)

8) Now, as those norms themselves perpetuate the way in which the constitution in question is interpreted, and as those interpretation and their continued performance necessarily impact the way in which we as citizens understand ourselves to be governed, it is perfectly logical to understand unconstitutional acts to be a threat to the "peoplehood" under which we our governed.

9) So consequently, when President Trump claims he has the inherent emergency-declaring authority to spend money that Congress, which according to the language of the U.S. Constitution is the only branch of our national government which can authorize the spending of money, has denied him, then he is performing the role of President of the United States badly.

10) The law may or may not make room for the legitimacy of his performance. But in acting in this way, he is challenging the one the primary procedures by which, for better or worse, Americans have historically articulated their democratic sovereignty--and while that may not be an immediate threat to our "freedom," it absolutely challenges (yes, in the same way Obama, Bush, Clinton, Reagan, and most other presidents also challenged) the premises on which this particular democratic polity was, and still is, imagined to work. So, yes--it is a big deal, and worth trying to stop, for whatever reason.

To go back to Moran--however much our reasoning may diverge, note what is the same about it. Moran is thinking about the U.S. Constitution, about how it functions and what it means. We don't think about it the same way, but his thinking about it, however much I might dispute elements of it, is serious. And it is always impressive to see someone in Congress think seriously about not just the political popularity, or the partisan necessity, of a given issue, but rather about, for example, the danger of establishing a “precedent for future presidents” (as Moran did). Estes’ statement invoked President Trump, and for many voters around here that was enough; but Moran, on the other hand, invoked his “understanding of history,” his “intellect,” and his “gut.” That is a hard decision, and I think it is one deserving of praise.

Not that my praise necessarily matters a great deal. After all, I’m neither a Republican (though I do vote for some on occasion) nor a conservative (though I hold to some conservative views); as such, the core supporters of both men can dismiss these thoughts of mine out of hand. But aside from that, I am also an American citizen and a resident of Wichita, Kansas, and as such, these two men represent me in Washington, D.C. So as someone you represent: thank you, Senator Moran.Though I may often disagree with you politically, this week you’ve earned my appreciation, and my trust.

Why the Estes-Thompson Race Matters to Me (Besides, You Know, Because it Will Decide Who My Congressman Will Be)

Let's just get this out of the way: my track record when it comes to political predictions is utterly abysmal. So I'm not going to try this time around. This time, I'm acting as much as possible as a historical-trend-watching political scientist--which I am not, to be clear, but which I can pretend to be on occasion. Like right now.

There are numerous races I'll be watching around Wichita and Kansas and the country next Tuesday--county commission races, state legislative races, the Secretary of State race, the governor's race, key U.S. Senate races, etc., etc. But the 4th congressional district race, right here in south-central Kansas, is of particular interest to me, and not just because I have my political preferences and because I consider one of the candidates to be a friend. No, that congressional race is important to me as a citizen and a student of politics, because of what its results may, perhaps, tell me about 1) the city of Wichita, and 2) the Kansas state Democratic party. Let me explain why.

So, the race for the KS-4 seat is between incumbent Republican Ron Estes and, for the second time, Democratic challenger James Thompson. The enthusiasm is all on Thompson's side, as benefits a man who has essentially been running non-stop for this seat for more than 20 months. (That includes the special election in April 2017 which put Estes in the place of the elevated-to-the-CIA-by-Trump Mike Pompeo, in which Thompson lost by 46% to 52%, and after which he promptly started his campaign again, focused on 2018.) As even his most fervent supporters will admit, Estes isn't much of a political animal, while Thompson absolutely is. Still, when you're talking about a district where registered Republicans outnumber registered Democrats by 2 to 1, being a political animal may not matter much. Nate Silver's 538 certainly doesn't think so; they predict that Estes has better than a 99% chance of beating Thompson by nearly 20 points--which, if you look at the history of the district, is a pretty standard spread for this congressional seat. You have to go all the way back to 2000 to find a regular match-up where the Democrat lost by a less-than 15 point difference, and all the way back to 1996 to find a Democrat losing KS-4 by only single digits. Of course, that's what happened in the special election. But special elections are just that: special, with different expectations and dynamics at work in regards to candidate selection, campaign length, voter turn-out, and all the rest. Presumably, say the serious poll-watchers, that tiny Estes victory will almost certainly be replaced with a normal-sized one.

I'm not going to make a prediction--but I thinking that there will be meaning in the results, whatever they may be. As I wrote last year, the fact that Thompson even won the Democratic nomination in the first place is impressive, given the multiple ways in which he departs from the model of Democrats-That-Can-Potentially-Win-in-Republican-Kansas which the KDP rigorously maintained from the 1960s up to the 2000s, when Kathleen Sebelius began to suggest some different electoral possibilities. Thompson may be a veteran, and he may be gun owner and firm "2nd Amendment man," but he isn't rural, he's urban; he doesn't hearken back to FDR and the New Deal, but rather looks forward to Bernie Sanders and Medicare for All; he isn't socially conservative, moderate, or even just quiet on such issues, but instead is openly liberal on matters of abortion, LGBT rights, and a host of social justice and civil rights issues. He is, in other words, a product of, and seeking to build a winning electoral coalition out of, a set of Democratic voters that are quite common in America's "blue" cities (in contrast to more "red" and rural states), but were notably absent from the Kansas political scene while the consequences of the civil rights movement, the women's movement, and numerous other social transformations changed the party elsewhere.

It seems likely that Sharice Davids--a progressive Democratic candidate if there ever was one--will beat Republican Kevin Yoder to take the seat in Kansas's 3rd congressional district, which is by far its most urban, sitting as it does right in the midst of Kansas City, KS, and its Johnson and Wyandotte county suburbs. (There's also a decent possibility that Democratic candidate Paul Davis will squeak out a win in Kansas's 2nd congressional district over Republican Steve Watkins--but that race isn't especially indicative of the urbanization of the Kansas Democratic electorate one way or another, as Davis is much more your traditional creature of the northeastern Kansas Democratic establishment, relying upon voters in Lawrence and at the University of Kansas to put him over the top.) Kansas's second-most urban district, though, is the 4th, centered right here in Wichita, the largest single city in the state; hence my curiosity about these developments. Less than 5% of my district's voting population lives outside of my city's statistical metropolitan area. Yet Wichita is, as I have written at length, a slow-growth (or no-growth) mid-sized cities, with all the confusions that entails as its metropolitan area entwines with nearby exurbs, commuter towns, and unincoporated rural areas. (Check out my friend Chase Billingham's comments on part of this confusion here.) All across the United States you have seen Democrats double-down in cities as part of he "resistance" to President Trump--but this is a development which preceded his rise. As far back as President Obama's first election, there had been a suspicion that the Democratic party could--often enough anyway--orient itself entirely around the more multicultural, often secular, often unmarried, usually more educated, definitely more progressive urban dwellers of America's cities. This has taken place with some success around the country. Could it take place here? Some see it as unlikely, given Wichita's decided un-cosmopolitan local culture. And yet, one might argue that no city, not even a non-agglomerated mid-sized one in a conservative rural state, can avoid the political consequences of contemporary urbanity entirely.

One election, of course, can't and shouldn't be taken as measure of something as complicated as socio-cultural and demographic change. And yet, parties, for all their limitations, are feedback mechanisms within the political marketplace--the success or failure of candidates does tell us things: about voters, about their preferences, and about how those voter preferences can be measured against other concerns. So as someone who loves Wichita, and wants to better understand its current predicament and future possibilities, the contest between Estes and Thompson is one I'm looking at so as to learn something about the people who live here--and in particular, about the number and kind of Kansas Democrats and moderate Republicans who live here, in this urban space.

Here's what I am willing to say. If 538 is correct, and Thompson ends up losing to Estes by about the number they predict--basically a 60%-40% split in the vote--then I think there would be good evidence that Wichita isn't turning blue--certainly not to degree that other cities are and have, and maybe not at all. Rather, it would remain a city with a large, but electorally limited, progressive urban minority, one that would have to focus its energies inward (on county commission or city council races, perhaps) rather than outward. That, in turn, would communicate important information to the Kansas Democratic party--namely, that, the immediate Kansas City-area aside, there just aren't sufficient metropolitan voters in Kansas (a state where, despite its much deserved rural reputation, nearly two-thirds of its people live in cities) to support urban progressivism, and the Democrats need to re-invest in more traditionally rural socially conservative candidates. And, finally, it would broadly suggest that Wichita (and maybe other non-agglomerated urban centers like it) need to recognize that the changes of American cities really can pass them by, necessitating us to think different about the political and cultural future of cities like my home.

But if Thompson wins, or even just loses by the same amount (or less!) than he lost to Estes in the special election, despite all the particular variables of that contest in comparison to this year's much more traditional campaign...well, I think that will say something about Wichita, something relevant to the political future (and in particular the Democratic party's future) in this city and this state. Not that Wichita will have become, or would be close to becoming, a "blue" city--that would take the work of generations of voters to pull off. But it would say, I think, despite all the excuses the Kansas Republican party could legitimately put forward as an explanation (it was the fault of the depressing legacy of Brownback, it was the fault of Estes's own lack of charisma, it was the fault of Trump's and Kobach's polarizing rhetoric, etc.), that Wichita's urban population--and in particular its immigrants, its Latinos, its gays, its single progression women, its African-Americans, its artists, and its non- (or non-conservative) Christians--had grown large enough in number and influence to genuinely move the political needle of south-central Kansas in a more progressive political direction. That's hardly a recipe for major transformation; Kansas, I am certain, will remain a mostly conservative state throughout my and my children's lifetimes. Yet it would be a victory (or a revealing loss) that would tell us something--or tell me something, at least--about Wichita's relationship to the progressive forces shaping the Democratic party all across this country.

Many people, for a variety of reasons, see Wichita as a city whose motor has stalled--a city that is not moving, no matter what direction you want it to move. Results like I'm talking about here in the Estes-Thompson race would be evidence of movement, of a city that really is, however slowly, changing. And that, I don't mind saying, is something I would be fascinated to see.