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      Republicans Have Made Their Choice

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      In the wake of the Jan. 6 assault on the Capitol, Republican officeholders had three choices.They could stick with and defend Donald Trump and his riotous allies, and if they were members of the House or Senate, they could vote in support of the effort to overturn the results of the election, in a show of loyalty to the president and, in effect, the rioters.Or they could criticize and condemn the president as conservative dissenters, using their voices in an attempt to put the Republican Party back on a more traditional path.Or they could leave. They could quit the party and thus show the full extent of their anger and revulsion.But we know what actually happened. A few Republicans left and a few complained, but most remained loyal to the party and the president with nary a peep to make about the fact that Trump was willing to bring an end to constitutional government in the United States if it meant he could stay in office.We have been watching this dynamic play out a second time with Trump’s indictment on federal espionage charges for mishandling classified documents as a private citizen. The most prominent Republican officeholders wasted no time with their full-throated denunciations of the indictment, the Department of Justice and the Biden administration.“Let’s be clear about what’s happening: Joe Biden is weaponizing his Department of Justice against his own political rival,” said Representative Steve Scalise of Louisiana, the No. 2 Republican leader in the House. “This sham indictment is the continuation of the endless political persecution of Donald Trump.”“This indictment certainly looks like an unequal application of justice,” said Senator John Barrasso of Wyoming, who serves as chairman of the Senate Republican Conference. “You can’t help but ask why this is happening. It feels political, and it’s rotten.”Gov. Ron DeSantis of Florida said that the indictment was a “weaponization of federal law enforcement” that “represents a mortal threat to a free society,” and former vice president Mike Pence said he was “deeply troubled to see this indictment move forward” and vowed to “clean house” at the highest levels of the Justice Department if elected president.The only notable congressional Republican to really condemn Trump was Senator Mitt Romney of Utah. “By all appearances, the Justice Department and special counsel have exercised due care, affording Mr. Trump the time and opportunity to avoid charges that would not generally have been afforded to others,” he said in a statement. “Mr. Trump brought these charges upon himself by not only taking classified documents, but by refusing to simply return them when given numerous opportunities to do so.”All of this is typical. With vanishingly few exceptions, Republicans are unwilling to discipline Trump or withdraw their support for his political leadership or even just criticize him for his actions. The most we’ve seen, Romney aside, is a nod to the fact that these are serious charges. This is a “serious case with serious allegations,” said Senator Tim Scott of South Carolina, who nonetheless added that this prosecution represented a “double standard” and that “You can’t protect Democrats while targeting and hunting Republicans.”There are several ways to think about most Republicans’ reluctance to break with Trump in the face of his egregious lawbreaking and contempt for constitutional government, but I want to focus on two in particular.The first concerns something that exists wherever there is a relationship between an individual and an institution: the loyalty of the individual to the institution. Political parties in particular are designed to inculcate a sense of loyalty and shared commitment among their members. This is especially true for officeholders, who exist in a web of relationships and obligations that rest on a set of common interests and beliefs.Loyalty makes it less likely that a dissenter just walks away, especially when there isn’t a plausible alternative. Few Trump-critical Republicans, for instance, are willing to become Democrats. What’s more, as the economist A.O. Hirschman observed in his classic text, “Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations and States,” strong loyalty to an institution like a political party might lead a dissenting or disapproving individual to hold on to his or her membership even more tightly, for fear that exit might open the door to even worse outcomes.“The ultimate in unhappiness and paradoxical loyalist behavior,” Hirschman wrote, “occurs when the public evil produced by the organization promises to accelerate or to reach some intolerable level as the organization deteriorates; then, in line with the reasoning just presented, the decision to exit will become ever more difficult the longer one fails to exit. The conviction that one has to stay on to prevent the worst grows stronger all the time.”Assuming this is all true, how then do we explain the reluctance to criticize or condemn? For that, we can look to the history of the modern Republican Party, stretching back to Richard Nixon. And what do we see? We see a pattern of presidential criminality and contempt for the Constitution, backed in each instance by most Republican officeholders and politicians.For Nixon, it was Watergate. For Ronald Reagan, it was Iran-contra. For George W. Bush, it was the sordid effort to fight a war in Iraq and the disgraceful use of torture against detainees. For Donald Trump, it was practically his entire presidency.Most things in life, and especially a basic respect for democracy and the rule of law, have to be cultivated. What is striking about the Republican Party is the extent to which it has, for decades now, cultivated the opposite — a highly instrumental view of our political system, in which rules and laws are legitimate only insofar as they allow for the acquisition and concentration of power in Republican hands.Most Republicans won’t condemn Trump. There are his millions of ultra-loyal voters, yes. And there are the challenges associated with breaking from the consensus of your political party, yes. But there is also the reality that Trump is the apotheosis of a propensity for lawlessness within the Republican Party. He is what the party and its most prominent figures have been building toward for nearly half a century. I think he knows it and I think they do too.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      The Supreme Court Has Earned a Little Contempt

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      Although the Supreme Court has been deciding cases at a glacial pace this term — and that with an almost comically small docket of only 59 merits cases — the justices have found other ways to keep busy. They have been spinning their ethical lapses (Justice Clarence Thomas), blowing off congressional oversight (Chief Justice John Roberts), giving interviews whining about public criticism (Justice Samuel Alito) and presenting awards to one another (Justice Elena Kagan to Mr. Roberts).In the cases it has decided, the Supreme Court has gutted an important provision of the Clean Water Act and made it easier for private litigants to mount constitutional challenges to an administrative agency’s structure or existence. Opinions still to come threaten to strike down everything from affirmative action in education to student debt relief to the Indian Child Welfare Act.Court observers might be tempted to describe all this as a relatively recent development, a function of the court’s 6-to-3 Republican-appointed supermajority. The University of Michigan law professor Leah Litman has called this the “YOLO court” (for “you only live once”), because of the majority’s apparent sense of liberation in pursuing long-held conservative goals. Mark Lemley of Stanford placed the beginning of the “imperial Supreme Court” in 2020.Mr. Lemley is right to decry the self-aggrandizing nature of the court. But his dating is somewhat off. Judicial self-aggrandizement has been in the works for a lot longer: It has been a hallmark of the John Roberts years.Over roughly the past 15 years, the justices have seized for themselves more and more of the national governing agenda, overriding other decision makers with startling frequency. And they have done so in language that drips with contempt for other governing institutions and in a way that elevates the judicial role above all others.The result has been a judicial power grab.Judges have long portrayed themselves as neutral, apolitical conduits of the law, in contrast to the sordid political branches. This portrayal serves to obscure the institution of the judiciary and to foreground the abstract, disembodied concept of the law. In turn, it serves to empower judges, who present themselves not as one type of political actor but rather as the voice of the majestic principles of the law.But Mr. Roberts’s judiciary has increasingly taken subtext and made it text. Here are three thematic examples out of many.Campaign Finance LawStarting with Citizens United in 2010, the Republican-appointed majority on the court has consistently struck down provisions limiting the influence of money in politics, including provisions that it previously upheld. In a 2014 case, Mr. Roberts wrote that campaign finance regulations that pursue objectives other than eradicating quid pro quo corruption or its appearance “impermissibly inject the government into the debate over who should govern. And those who govern should be the last people to help decide who should govern.”In this brief passage, Mr. Roberts implicitly distances his own institution from “the government” of which it is obviously a part, implies that the court stands outside the processes of governance, and suggests that there is something self-dealing and borderline corrupt about campaign finance laws passed by elected legislatures.In these same cases, the justices have described nonjudicial political speech in terms that make it sound kind of … icky. It involves “sound bites, talking points and scripted messages that dominate the 24-hour news cycle,” in Justice Anthony Kennedy’s words. This sort of speech deserves protection for the same reasons that “flag burning, funeral protests and Nazi parades” do, in Mr. Roberts’s.Yet there has been one glaring exception to the majority’s hostility to campaign finance regulations: In the context of state judicial elections, they have upheld restrictions that they would be highly unlikely to tolerate in the context of nonjudicial elections. Tellingly, these cases describe judges in a manner that starkly contrasts with how they have described nonjudicial officeholders.As Mr. Kennedy put it in a 2009 case about when campaign spending required a state judge to recuse himself, “Precedent and stare decisis and the text and purpose of the law and the Constitution, logic and scholarship and experience and common sense, and fairness and disinterest and neutrality are among the factors at work” when judges consider cases — a far cry from the “sound bites, talking points and scripted messages” of nonjudicial political speech.And in a 2015 case upholding a Florida law that forbade candidates for judicial office from personally soliciting campaign contributions, Mr. Roberts, anachronistically appealing to the authority of Magna Carta, wrote that judges “cannot supplicate campaign donors without diminishing public confidence in judicial integrity” and concluded that “judges are not politicians, even when they come to the bench by way of the ballot.”Mr. Roberts’s protestations to the contrary notwithstanding, judges are political actors, and striking down federal election laws is an aggressive act of governance by the judiciary. And the justices’ language in these cases, holding up judges as noble instruments of the law and denigrating other officeholders as power-grubbing and superficial, serves to reinforce and justify the notion that they are uniquely qualified to govern us.Congressional OversightOn one day in 2020, the court decided two cases dealing with very similar subpoenas for information about President Donald Trump’s financial and business dealings. One set of subpoenas came from congressional committees; the other came from a New York State grand jury.Mr. Roberts wrote both opinions. In the case dealing with congressional subpoenas, he worried that Congress may aim to “harass the president or render him ‘complaisan[t] to the humors of the legislature.’” Accordingly, the subpoenas must be superintended by the courts, lest the legislature “‘exert an imperious controul’ over the executive branch and aggrandize itself at the president’s expense, just as the framers feared.” (The internal quotations there are from the Federalist Papers to provide a patina of antiquity.) He thus announced a multipart balancing test that applies only when Congress seeks the personal papers of the president.While that decision made the president a supercitizen vis-à-vis congressional subpoenas, the other opinion emphasized that he is just a regular citizen when it comes to judicial subpoenas. Unlike Congress, apparently, a grand jury requires “all information that might possibly bear on its investigation.” Whereas Mr. Roberts worried about Congress harassing the president, “we generally ‘assume[] that state courts and prosecutors will observe constitutional limitations.’”Not only do these opinions stymie congressional oversight — the papers were not handed over to the committees until nearly two years into the Biden administration — they also do so using language that elevates judicial institutions while denigrating legislative ones.Federal RegulationCongress is not alone; administrative agencies also bear the brunt of the justices’ disdain. In a series of recent cases that, for example, struck down the E.P.A.’s clean power plan for addressing climate change, the Republican-appointed justices have invented the so-called major questions doctrine. If they consider an issue major — and they have not told us what makes a question major beyond “vast economic and political significance” or “earnest and profound debate across the country” — then they will not allow an agency to regulate in that manner unless Congress has clearly stated that it may.To use an analogy: If a majority of justices determine that eating an ice cream cone is a major question, then it is not enough that Congress has empowered the agency to “eat any dessert it chooses.” It must legislate that the agency can “eat any dessert it chooses, including ice cream cones.” But Congress has no way of knowing whether eating an ice cream cone is major until it sees what a majority of justices have to say about it.In justifying this doctrine, the justices have raised the specter of out-of-control bureaucrats intruding on the liberty of citizens, undermining legal stability, serving only special interests and invading the domain of the states.You might think that this doctrine is meant to protect congressional power, except that it dictates to Congress how it must legislate, despite the fact that Congress has no way of knowing in advance what issues will be considered major. Moreover, as the legal scholar Beau Baumann has noted, Justice Neil Gorsuch and his colleagues have justified the doctrine on the grounds that Congress is too eager to delegate to agencies in order to avoid political responsibility, so the courts must keep Congress in line. In other words, the justices are paternalistically claiming to protect Congress from itself.***In all of these areas and in plenty more, the justices have seized for themselves an active role in governance. But perhaps even more consequentially, in doing so, they have repeatedly described other political institutions in overwhelmingly derogatory terms while either describing the judiciary in flattering terms or not describing it at all — denying its status as an institution and positioning it as simply a conduit of disembodied law.This is the ideological foundation for the Roberts-era judicial power grab.It is also worth noting that this ideological project is bipartisan. Republican-appointed justices dominate the court and have for many decades, but their Democratic-appointed colleagues — while dissenting in many individual opinions — evince no desire to contest the underlying disdain for other institutions or elevation of their own. When Mr. Roberts recently refused to testify before the Senate Judiciary Committee, nothing stopped Justices Sonia Sotomayor, Elena Kagan or Ketanji Brown Jackson from volunteering to testify, but they did not. Nothing is stopping them from publicly calling for a binding ethics code or from questioning not just the correctness but also the legitimacy of their institution’s assertiveness, but they have not.Recognizing the justices’ ideological project also points to the beginning of the solution. We ought to begin talking about the justices the way we talk about other political actors — recognizing that their first name is not Justice and that they, like other politicians, should be identified by their party.We should stop talking about another branch’s potential defiance of a judicial opinion as an attack on “the rule of law” and instead understand it as an attack on rule by judges, one that may (or may not) be a justified response to some act of judicial governance. And those other branches should be more willing — as they have at other moments in American history — to use the tools at their disposal, including cutting the judiciary’s funding, to put the courts in their place.In recent years, the judiciary has shown little but contempt for other governing institutions. It has earned a little contempt in return.Josh Chafetz (@joshchafetz) is a law professor at Georgetown and the author of “Congress’s Constitution.” This essay is adapted from a forthcoming article in The St. Louis University Law Journal.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Something’s Got to Give

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      It’s been 52 years since Congress passed, and the country ratified, a constitutional amendment — the 26th Amendment, which lowered the voting age to 18 in the wake of the Vietnam War and the broader disruption of the 1960s. (The 27th Amendment, ratified in 1992, was passed in 1789.) It’s been 64 years since Congress added states to the union — Alaska and Hawaii, in 1959. And it’s been 94 years since Congress capped the size of the House of Representatives at 435 members.You might be tempted to treat these facts as trivia. But the truth is that they say something profound about American politics. For more than 50 years, the United States has been frozen in a kind of structural and constitutional stasis. Despite deep changes in our society — among them major population growth and at least two generational waves — we have made no formal changes to our national charter, nor have we added states or rearranged the federal system or altered the rules of political competition.One reason this matters, as Kate Shaw and Julie C. Suk observe in a recent essay for Times Opinion, is that “several generations of Americans have lost the habit and muscle memory of seeking formal constitutional change.” Unaccustomed to the concept and convinced that it is functionally impossible, Americans have abandoned the very notion that we can change our Constitution. Instead, we place the onus for change on the Supreme Court and hope for the best. Out with popular sovereignty, in with judicial supremacy.There is another reason this matters. Our stagnant political system has produced a stagnant political landscape. Neither party has been able to obtain a lasting advantage over the other, nor is either party poised to do so. The margins of victory and defeat in national elections are slim. The Republican majority that gave President George W. Bush a second term in the White House — and inspired, however briefly, visions of a permanent Republican majority — came to just 50.7 percent of the overall vote. President Barack Obama won his second term by around four percentage points, and President Biden won by a similar margin in 2020. Donald Trump, as we know, didn’t win a majority of voters in 2016.Control of Congress is evenly matched as well. Majorities are made with narrow margins in a handful of contested races, where victory can rest more on the shape of the district map — and the extent of the gerrymandering, assuming it holds — than on any kind of political persuasion. That’s the House. In the Senate, control has lurched back and forth on the basis of a few competitive seats in a few competitive states. And the next presidential election, thanks to the Electoral College, will be a game of inches in a small batch of closely matched states rather than a true national election.Past eras of political dynamism often came from some change in the overall political order. Throughout the 19th century, for example, the addition of states either transformed the terrain on which Americans fought partisan politics or opened avenues for long-term success for either one of the two major parties. States could be used to solidify partisan control in Washington — the reason we have two Dakotas instead of one — or used to extend and enlarge an existing coalition.Progressive-era constitutional transformations — the direct election of senators, women’s suffrage and Prohibition — reverberated through partisan politics, and the flood of Black Americans from Southern fields to Northern cities put an indelible stamp on the behavior of Democrats and Republicans.We lack for political disruption on that scale. There are no constitutional amendments on the table that might alter the terms of partisan combat in this country. There’s no chance — anytime soon — that we’ll end the Electoral College or radically expand the size of the House, moves that could change the national political calculus for both parties. There are no prospects, at this point, for new states, whether D.C., Puerto Rico or any of the other territories where Americans live and work without real representation in Congress.There’s nothing either constitutional or structural on the horizon of American politics that might unsettle or shake the political system itself out of its stagnation. Nothing that could push the public in new directions or force the parties themselves to build new kinds of coalitions. Nothing, in short, that could help Americans untangle the pathologies of our current political order.The fact of the matter is that there are forces that are trying to break the stasis of American politics. There’s the Supreme Court, which has used its iron grip on constitutional meaning to accumulate power in its chambers, to the detriment of other institutions of American governance. There’s the Republican Party, which has used the countermajoritarian features of our system to build redoubts of power, insulated from the voters themselves. And there is an authoritarian movement, led and animated by Trump, that wants to renounce constitutional government in favor of an authoritarian patronage regime, with his family at its center.Each of these forces is trying to game the current system, to build a new order from the pieces as they exist. But there’s nothing that says we can’t write new rules. And there’s nothing that says that we have to play this particular game.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      The Polite Disdain of John Roberts Finds a Target

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      Although the three branches of the American government were designed to be coequal, the structure of the Constitution tells us something about the relative power of each branch, as envisioned by the framers.Article I establishes the legislature. Article II establishes the executive branch. And Article III establishes the federal judiciary. It is true that the branches share powers and responsibilities. But it’s also true that the framers trusted Congress — the representative branch — with far more authority than it did the president or the Supreme Court.Congress makes laws. Congress spends money. Congress approves the president’s cabinet and says whether he can appoint a judge or not. Congress structures the judiciary and Congress sets the size of the Supreme Court and the scope of its business.The upshot of all of this is that when Congress calls, the other branches are supposed to answer — not as a courtesy, but as an affirmation of the rules of the American constitutional order. The modern Congress might be weak, and the presidency, against the expectations of the framers, might be the center of American political life, but it’s still newsworthy when a member of the executive branch says he or she won’t meet with the legislature.Chief Justice John Roberts is in a different branch of government, the judiciary. But he — a constitutional officer confirmed to his seat by the Senate — is still subject to the power of Congress to question and investigate his conduct. When Congress calls, he too should answer.Last week, Congress called the chief justice. In the wake of revelations concerning the friendship between Justice Clarence Thomas and Harlan Crow, a billionaire Republican donor, the chairman of the Senate Judiciary Committee, Senator Dick Durbin of Illinois, invited Roberts to testify at an upcoming hearing on Supreme Court ethics rules.“There has been a steady stream of revelations regarding justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally,” Durbin wrote in his letter to the chief justice. “These problems were already apparent back in 2011, and the Court’s decade-long failure to address them has contributed to a crisis of public confidence.”“The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards,” Durbin went on to say. “I invite you to join it, and I look forward to your response.”This week Roberts answered. He said, in a word, no.“I must respectfully decline your invitation,” Roberts wrote. “Testimony before the Senate Judiciary Committee by the chief justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”This deceptively polite reply sounds reasonable for as long as you can manage to forget the fact that it is questions about the ethical conduct of the court and its members that have compromised the independence of the court. Was Thomas influenced by the largess of his billionaire benefactor? Was Justice Samuel Alito influenced by an explicit campaign to curry favor with the conservative justices? Was Justice Neil Gorsuch influenced by the lucrative sale of a Colorado property, in the wake of his confirmation, to the head of a powerful law firm with ample business before the court?It is with real chutzpah, in other words, that Roberts has claimed judicial independence in order to circumvent an investigation into judicial independence.More striking than this evasion is the manner in which Roberts ended his reply. Faced with serious questions about the integrity of the court, he pointed to a nonbinding ethics document that has done almost nothing to prevent these situations from arising in the first place. “In regard to the Court’s approach to ethics matters,” he wrote, “I attached a Statement of Ethics Principles and Practices to which all of the current members of the Supreme Court subscribe.”Roberts did not write an aggressive or confrontational letter. And yet, he is quietly making an aggressive and confrontational claim about his own power and authority and that of the court’s. “Separation of powers,” in Roberts’s view, means the court is outside the system of checks and balances that governs the other branches of government. “Judicial independence,” likewise, means neither he nor any other member of the court has any obligation to speak to Congress about their behavior. The court checks, according to Roberts, but cannot be checked.A number of legal scholars have remarked on the judicial power grab of the past several years, in which courts across the federal judiciary have seized key governing decisions from the legislative and executive branches and disparaged the ability of elected officials to, as Josh Chafetz of Georgetown University Law Center writes, “engage in principled, competent governance.”As one of the architects of this development in American politics, Roberts is essentially using this letter to make plain to Congress the reality of the situation: I will not speak, and you cannot make me. And he’s right, not because Congress doesn’t have the power, but because it doesn’t have the votes. In the absence of a majority of votes, the Senate Judiciary Committee cannot subpoena a justice. In the absence of 218 votes, the House cannot impeach a justice. And in the absence of 67 votes, the Senate cannot remove a justice.There are steps Congress could take to discipline the court — shrinking its budget, reducing the scope of its docket, imposing ethics rules itself, even making it “ride circuit” à la the 19th century — but those require a majority in the House and a supermajority in the Senate because of the filibuster, as well as a consensus among lawmakers (and specifically, Democrats) to follow through if they ever have the chance to do so.It is not especially dramatic, but this exchange with Chief Justice Roberts over the court, its ethics and its responsibility to the public and its representatives has done more than almost anything else in recent memory to illustrate a key reality of American politics in this moment: that our Supreme Court does not exist in the constitutional order as much as it looms over it, a robed tribunal of self-styled philosopher-kings, accountable to no one but themselves.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Gary Hart: The “New Church Committee” Is an Outrage

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      To legitimize otherwise questionable investigations, Congress occasionally labels them after a previous successful effort. Thus, the new Republican-controlled House of Representatives’ proposed select committee, which plans to investigate the “weaponization of government,” is being described as “the new Church committee,” after the group of senators who investigated the F.B.I., the C.I.A. and other groups from 1975-76.As the last surviving member of the original Church committee, named after its chairman, the late Senator Frank Church of Idaho, I have a particular interest in distinguishing what we accomplished then and what authoritarian Republicans seem to have in mind now.The outlines of the committee, which Rep. Jim Jordan will assemble, remain vague. Reading between the rhetorical lines, proponents appear to believe agencies of the national government have targeted, and perhaps are still targeting, right-of-center individuals and groups, possibly including individuals and right-wing militia groups that participated in the Jan. 6, 2021, insurrectionist attack on the Capitol.That is almost completely at odds with the purpose of the original Church committee, which was founded in response to widespread abuses by government intelligence agencies. While we sought to protect the constitutional rights and freedoms of American citizens, we were also bound to protect the integrity of the intelligence and security agencies, which were founded to protect those freedoms, too.Our committee brought U.S. intelligence agencies under congressional scrutiny to prevent the violation of the privacy rights of American citizens, and to halt covert operations abroad that violated our constitutional principles. Rather than strengthening the oversight of federal agencies, the new committee seems designed to prevent law enforcement and intelligence agencies from enforcing the law — specifically, laws against insurrectionist activity in our own democracy.It is one thing to intercept phone calls from people organizing a peaceful civil rights march and quite another to intercept phone calls from people organizing an assault on the Capitol to impede the certification of a national election.Rather than weaken our intelligence and law enforcement agencies, the Church committee sought to restore their original mandates and increase their focus away from partisan or political manipulation. Our committee was bipartisan, leaning neither right nor left, and the conservative senators, including the vice chair, John Tower, Barry Goldwater, Howard Baker and others, took pains to prevent liberal or progressive members, including chairman Church, Philip Hart, Walter Mondale and me, from weakening our national security.They needn’t have bothered. We all understood, including me, the youngest member, that attacks on federal law enforcement and national security would not go down well among our constituents. Unlike in the 1970s, today’s threat to domestic security is less from foreign sources and more from homeland groups seeking to replace the constitutional order with authoritarian practices that challenge historic institutions and democratic practices.Among a rather large number of reforms proposed by the Church committee were permanent congressional oversight committees for the intelligence community, an endorsement of the 1974 requirement that significant clandestine projects be approved by the president in a written “finding,” the notification of the chairs of the oversight committees of certain clandestine projects at the time they are undertaken and the elimination of assassination attempts against foreign leaders.Despite the concern of conservatives at the time, to my knowledge, no significant clandestine activity was compromised and no classified information leaked as a result of these reforms in the almost half-century since they were adopted. In fact, the oversight and notification requirements, by providing political cover, have operated as protection for the C.I.A.Evidence was provided of the effectiveness of these reforms in the so-called Iran-contra controversy in 1985-87. The Reagan administration sold arms to Iran and used the proceeds to finance covert operations in Nicaragua against its socialist government. Assigning accountability for this scheme proved difficult until a document authorizing it was located in the White House. President Reagan did not remember signing it; however, it bore his signature. This kind of accountability would not have been possible before our reforms were adopted.The rules of the Senate and the House establish what standing committees and what special committees each house may create. The House is clearly at liberty within those rules to create a committee to protect what it perceives to be an important element of its base. And if its purposes are ultimately to protect authoritarian interests, it is presumably free to do so and accept criticisms from the press and the public. It is outrageous to call it a new Church committee. Trying to disguise a highly partisan effort to legitimize undemocratic activities by cloaking it in the mantle of a successful bipartisan committee from decades ago is a mockery.Gary Hart is a former United States senator from Colorado and the author of, most recently, “The Republic of Conscience.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Adam Schiff: Don’t Forget That Many Republicans in Congress Enabled Trump’s Big Lie

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      On Dec. 27, 2020, more than six weeks after losing re-election, an infuriated President Donald Trump telephoned his acting attorney general, Jeffrey Rosen. Mr. Trump’s former attorney general, Bill Barr, had announced his resignation less than two weeks earlier, after telling the president that the claims of election fraud Mr. Trump had been trumpeting were — as Mr. Barr later bluntly put it in testimony — “bullshit” and publicly affirming that there was no fraud on a scale that would affect the outcome of the election.With Mr. Rosen’s deputy, Richard Donoghue, also on the line, Mr. Trump launched into the same tired, disproved and discredited allegations he had propagated so often at rallies, during news conferences and on social media. None of it was true, and Mr. Donoghue told him so. According to Mr. Donoghue, Mr. Trump, exasperated that his own handpicked top appointees at the Justice Department would not affirm his baseless allegations, responded: “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”It was a remarkable statement, even for a president who had serially abused the powers of his office. Having been told by the very department that had investigated his claims of fraud that they were untrue, Mr. Trump told the acting attorney general and his deputy to lie about it and said he would take it from there.That Mr. Trump was willing to lie so baldly about a matter at the heart of our democracy — whether the American people can rely on elections to ensure the peaceful transfer of power — now seems self-evident, even unremarkable, when we consider the violent attack on the Capitol he incited days later. But Americans shouldn’t lose sight of how this behavior indicts the former president, and not just the former president but the Republican members of Congress whom he knew would go along with his big lie.The report released Thursday from the Jan. 6 committee, on which I served, makes abundantly clear that there were multiple lines of effort to overturn the 2020 election. Some involved attempts to pressure state legislatures to declare the loser to be the winner. Others involved a fake electors plot, pressure on the vice president to violate his constitutional duty and efforts to force an elections official to “find” thousands of votes that didn’t exist. It was only when all of these other efforts failed that the president resorted to inciting mob violence to try to stop the transfer of power.But one line of effort to overturn the election is given scant attention, and that involved the willingness of so many members of Congress to vote to overturn it. Even after Capitol Police and Metropolitan Police put down the insurrection at great cost to themselves, the majority of Republicans in the House picked up right where they left off, still voting to overturn the results in important states.At one of our Jan. 6 committee hearings, the committee vice chair Liz Cheney, a Republican, called out her colleagues in Congress for their duplicity in the most searing terms: “There will come a day when Donald Trump is gone, but your dishonor will remain.”With our work on the committee largely concluded, it will now fall to the Justice Department to ensure a form of accountability that Congress is not empowered to provide, and to vindicate the rule of law in a manner beyond our reach: through prosecution. Multiple laws were violated in the course of a broad attempt to overturn the election, and not just by the foot soldiers who broke into the Capitol building that day and brutally assaulted police officers, but also by those who incited them, encouraged them and, when it was all over, gave them aid and comfort. Bringing a former president to justice who even now calls for the “termination” of our Constitution is a perilous endeavor. Not doing so is far more dangerous.There is a growing disdain for the law and for our country’s institutions, and a frightening acceptance of the use of violence to resolve political disputes. Mr. Trump’s big lie has been one of the most powerful instigators of political violence, since it persuaded millions of people that the election they lost must have been rigged or fraudulent. If people can be convinced of that, what is left but violence to decide who should govern? The attack on the Capitol was an all too foreseeable consequence of Mr. Trump’s relentless effort to alienate the people from their government and from the most important foundation of governance: their right to vote.Even the Constitution cannot protect us if the people sworn to uphold it do not give meaning to their oath of office, if that oath is not informed by ideas of right and wrong, and if people are unwilling to accept the basic truth of things. None of it will be enough.But if we allow ourselves to be guided by facts — not factions — and if we choose our representatives based on their allegiance to the law and to the Constitution, then we should have every confidence that our proud legacy of self-government will go on. It is our hope that this report will make a small contribution to that effort. Our country has never before faced the kind of threat we documented. May it never again.Adam B. Schiff is a Democratic member of Congress from California and the author, most recently, of “Midnight in Washington: How We Almost Lost Our Democracy and Still Could.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      This Case Should Never Have Made It to the Supreme Court

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      “The most important case for American democracy” in the nation’s history — that’s how the former appeals court judge J. Michael Luttig described Moore v. Harper, an extraordinary lawsuit that the Supreme Court considered in oral arguments Wednesday morning. Judge Luttig, a conservative and a widely respected legal thinker, is not one for overstatement. Yet most Americans aren’t paying attention to the case because it involves some confusing terminology and an arcane legal theory. It is essential that people understand just how dangerous this case is to the fundamental structure of American government, and that enough justices see the legal fallacies and protect our democracy.First, the back story on the case: In 2021, North Carolina lawmakers redrew their congressional maps. The state had 13 districts at the time, and its voters were more or less evenly divided between Democrats and Republicans. But the Republicans who are in control of North Carolina’s legislature didn’t want fair maps; they wanted power. In one of the most egregious gerrymanders in the nation, they drew 10 seats intended to favor themselves.The North Carolina courts were not amused. A panel of three trial judges found that the 2021 maps were “intentionally and carefully designed to maximize Republican advantage” — so much so that Republicans could win legislative majorities even when Democrats won more votes statewide. The State Supreme Court struck down the maps, finding they violated the North Carolina Constitution’s guarantees of free elections, free speech, free assembly and equal protection.That should have been the end of it: A state court applying the state Constitution to strike down a state law. But North Carolina’s Republican lawmakers appealed, arguing that the U.S. Constitution does not give state courts authority to rule on their congressional maps — even though the legislature had passed a law authorizing the courts to review redistricting plans like these. Instead, the lawmakers are relying on an untested theory that asserts that state legislatures enjoy nearly unlimited power to set and change rules for federal elections.In 2000 the chief justice at the time, William H. Rehnquist, proposed the idea in his concurring opinion on Bush v. Gore, and the independent state legislature theory has been floating around the fringes of right-wing legal circles ever since.To be clear, this is a political power grab in the guise of a legal theory. Republicans are trying to see if they can turn state legislatures — 30 of which are controlled by Republicans — into omnipotent, unaccountable election bosses with the help of the conservative supermajority on the Supreme Court. The theory has no basis in law, history or precedent. The idea that state lawmakers exist free of any constraints imposed by their constitution and state courts makes a mockery of the separation of powers, which is foundational to the American system of government. By the North Carolina lawmakers’ logic, they possess infinite power to gerrymander districts and otherwise control federal elections. It is a Constitution-free zone where no one else in the state — not the governor, not the courts, not the voters through ballot initiatives — has any say.On Wednesday morning, Justice Elena Kagan rejected the theory out of hand, saying it “gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”In practice, the theory that the petitioners in the case are seeking to use would turn hundreds of state constitutional provisions into dead letters in federal elections. For instance, 48 states affirmatively guarantee a right to vote in their constitutions. (The federal Constitution still does not.) Most state constitutions guarantee free, fair, equal or open elections. Even the secret ballot — so fundamental to American democracy — is a creature of state constitutions. If the justices accept the most aggressive version of the independent state legislature theory that the petitioners want them to and even if they accept a weaker version, provisions like these could become invalid overnight, because the theory holds that state constitutions have no authority to impose any regulations on federal elections. (The Constitution and federal law remain supreme, so challenges to state legislative actions could still be brought in federal courts.)Some of the justices insist that they don’t — they can’t — pay attention to the real-world outcomes of their rulings. They’re just interpreting law. By that logic, this case should be rejected on its merits.First, the theory is based on bad legal interpretation. The Constitution uses the word “legislature” in describing who has the power to regulate federal elections. Because of this word, the theory’s supporters claim, state legislatures have nearly unlimited power in that realm. But as Judge Luttig has noted, the theory has “literally no support” in the Constitution. To the contrary, the framers who wrote the Constitution were concerned that state legislatures had too much power, not too little. The text they wrote makes many references to the powers of those legislatures and of Congress, but it never says or implies that they are immune to review by the judicial branch.Second, the theory is based on bad history. The best evidence its supporters offer is a two-century-old document that has long been known to be fraudulent. Written in 1818 by Charles Pinckney of South Carolina, a founding father, it is purported to be a replica of the plan for government that he introduced three decades earlier at the Constitutional Convention. But what he submitted in 1818 was not the real deal. James Madison suspected this immediately, as have virtually all historians to examine it in the years since.When the theory’s supporters sought to claim that the practices of early state legislatures proved that their side should win, Justice Sonia Sotomayor responded, “Yes. If you rewrite history, it’s very easy to do.”Third, if the Supreme Court accepts this theory, it will create a logistical nightmare in states across the country. That’s because the theory applies only to federal elections, not state elections, in which state courts unquestionably have a role to play. As a result, there would be two sets of rules operating at the same time, one for federal elections and one for state elections. Chaos and confusion would reign.Most important, the Supreme Court has already implicitly rejected the theory many times over. In precedents stretching back decades, the court has made clear that state courts have the power to set limits on what lawmakers can do when it comes to federal elections. As recently as 2019, the court rejected a plea for it to stop the extreme partisan gerrymandering in North Carolina and other states. In doing so, Chief Justice John Roberts explained that this is exactly the role that state courts should play. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote.At Wednesday’s argument, Justice Samuel Alito appeared to reject that premise. He accused elected state court judges, like those in North Carolina, of being political actors themselves. “There’s been a lot of talk about the impact of this decision on democracy,” said Justice Alito, who has given openly partisan speeches to outside groups and voted consistently in alignment with Republican policy priorities. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”Another way to appreciate the absurdity of the theory is to consider who has come out for and against it. On one side, a large and bipartisan group of judges, government officials, former lawmakers, leading historians and constitutional scholars from across the political spectrum have rejected it. These include a co-founder of the right-wing legal group the Federalist Society, the chief justices of all 50 states, multiple Republican former governors and secretaries of state and civil rights organizations.On the other side, you will find a far smaller and less bipartisan cast of characters — among them, the Republican National Committee, a group of Republican state attorneys general and John Eastman, a former law professor last seen helping Donald Trump plan an illegal and unconstitutional coup to stay in office (an act that has exposed Mr. Eastman to a real risk of criminal prosecution).That so many justices would take the theory seriously is bad enough. Three of them — Justices Alito, Neil Gorsuch and Clarence Thomas — appear to favor the independent state legislature theory, as they suggested in an opinion in an earlier stage of the case. Justice Brett Kavanaugh has also indicated his openness to it. It’s worse when the public trust in and approval of the court have fallen to historic lows, thanks largely to aggressively partisan recent opinions, as this board has argued.There’s an old saying that only close cases make it to the Supreme Court. If they weren’t close, they would have been resolved in the lower courts. But Moore v. Harper isn’t a remotely close case. A ruling for the North Carolina lawmakers would flood the federal courts with election litigation that normally plays out in the states, upending the balance of federalism that defines American government. That’s not a conservative result; it’s a dangerously radical one.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Is the Supreme Court About to Upend American Election Laws?

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      Here’s what to know about a court case that could change the way Americans vote — and who decides how they do.For months, my inbox has been bombarded by anxious Democrats and election experts wanting to talk about a once-obscure legal theory that could fundamentally alter the way Americans vote.Known as the independent state legislature doctrine, it holds, in its purest form, that state constitutions have little to no ability to constrain state legislatures. The doctrine emerged from a novel interpretation of the U.S. Constitution’s Elections Clause, which grants states the authority to set the “time, places and manner” of federal elections.At the core of the dispute is whether the framers intended the word “legislature” in the document to be understood strictly, or whether they meant that other institutions — like state courts, governors and secretaries of state — also had important roles to play in setting and interpreting the rules around elections and voting.A fringe version of the doctrine entered the public discussion last year when it emerged that one of Donald Trump’s lawyers, John Eastman, had written a memo arguing that it even allowed state lawmakers to send their own slate of presidential electors to Washington.The Supreme Court has traditionally been gun-shy about encroaching on state courts, especially when they are interpreting their own constitutions.But a more mainstream conservative position, embraced by the Republican Party and rejected by Democrats, started gaining support on the right amid legal battles over the accommodations some states made for voters during the pandemic, like the expansion of mail voting.If adopted, the doctrine would, among other things, bar state courts from ensuring that state laws comply with a requirement, common in many state constitutions, that elections be “free and fair” — with potentially vast implications for rules on redistricting, citizen-led commissions and voting. Understand the U.S. Supreme Court’s New TermCard 1 of 6A race to the right. More