Political prisoner dilemma

This is a draft oped. It didn't make it as events in Israel are now consuming attention. But sooner or later we need to elect a president and live with the results. I went light on the economics, but you can see the basic game theory of the analysis. It amplifies some comments I made on Goodfellows. 

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 If, as it appears, the election will come down to Trump vs. Biden, the US is headed for a constitutional crisis, and the social, and political chaos that implies. Like prisoners of the economists’ dilemma, there seems no easy way out. 

Whichever wins, the others’ partisans will pronounce the president to be fundamentally illegitimate. In turn, Illegitimacy justifies and emboldens scorched-earth tactics, more norm-busting and institution-destruction.

If Biden wins, Trump supporters will see an official Washington, especially its justice system, enmeshed in presidential politics. They remember Hilary Clinton’s laptop, the Russia collusion hoax, and endless investigations. Now they see sprawling indictments for process and paperwork crimes, that nobody else would be charged for.  They see a Washington-media-intelligence cabal censoring news, from censorship of Covid policy dissenters — who turned out to be largely right — to the Hunter Biden laptop story just before the last election. See the scathing Missouri V. Biden. And they see the Family Business. Sure, Biden, like so many in public office who somehow end up with millions in family wealth, likely has enough lawyers and shell companies to avoid provable illegality.  But illegality is not the issue. Trump supporters will see the stench of the swamp, secret email accounts, the reins of power covering up the embarrassing facts. 

If Trump wins, Democrats will go ballistic. Democrats have refined de-legitimization for decades. Trump’s denialism was almost comical in its incompetent emulation. Recall Bush derangement syndrome, continuing claims that the 2000 election was  stolen or decided by a corrupt court; Stacey Abrams, the #resistance, #not my president. But it’s all worse now. Though Democrats express themselves in legalisms, in the end they feel that Trump’s actions after the last election amount to a nearly treasonous violation of his oath of office to defend the Constitution.

(Before you start yelling your side's spin, take a breath. Yes, you see things differently, but how will they see things, no matter you loud you yell? How will they act? That's what matters.)

Our next election is likely to be chaos, enhancing the voices claiming illegitimacy. The election will be close. There will surely be a nationwide legal battle. Every questionable vote, every smudged postmark, every local decision to stretch a ballot deadline, every change in procedures will end up in court. Losing Democrats will cry “racist voter suppression.” Losing Republicans have gotten good at even more fanciful stolen election claims. 

If the election is decided by courts, heaven help us. The Democrat’s efforts to de-legitimize the Supreme Court are already well under way. Media now routinely refer to every federal judge by the president that appointed him or her, not, say, by the school they went to or their most famous decisions. Large swaths of the population will tell themselves that the election was stolen. 

With No Labels and Kennedy in the fray, it is possible that the election will come down to many ballots in the electoral college. Having tried to de-legitimize Trump for losing the popular vote in 2016, will democrats accept an electoral college result if the popular vote is 40-30-30? Will Republicans? It is possible that the electoral college fails, and the Presidency is decided by the House of Representatives, itself chaotic and under a razor-thin majority. Our Constitution brilliantly prescribes fail-safe procedures to produce a decision. But it only works only if people accept that decision. With so many already opining that the electoral college is an illegitimate anachronism, and with the House in such chaos and low esteem, will losers calmly accept the results of the Constitutional mechanism?

Widely believed, and more widely spun illegitimacy justifies horrendous behavior. You can tell the Jan 6 rioters were play-acting by how unserious they were. People who really believe an election was stolen bring tanks. Widespread violent protests are easy to foresee. 

Widely perceived illegitimacy leads to constitutional crisis and chaos. People will simply disregard presidential actions, action by his appointees, and court orders. They will violently resist attempts to enforce government actions. 

How do we avoid this mess? There is a lot of hope that one or the other party will blink, and choose a vaguely sensible candidate who will then sweep the general election. But candidates are chosen by primaries, a “democratic” reform we may wish to rethink. (Old men in smoke filled rooms, desiring to win a general election, would never have picked these two.) It’s not so easy. 

And even a reasonable candidate will only postpone the deeper question: Why is attacking the legitimacy of elections, institutions, and the courts gaining in strength? It is a scorched earth policy — ruin the institution to gain temporary advantage. 

The answer seems clear: The rewards of winning and the costs of losing are now too great. Narrowly, each of Trump and Biden could well end up in jail if he loses, a situation familiar in, say, Pakistan, but so far undreamt of in the US. Avoiding that is worth a lot of scorched earth. More broadly, winning an election now confers the power to rule by executive order. It confers power over administrative fiat, the power to shower billions on supporters, control of the regulatory machine that lines up corporate support, the power to censor the internet, and the power to hound your opponents and their supporters through the intelligence and judicial system. Losing graciously is a less and less viable option. 

Democracy isn’t so much about who wins elections. Democracy requires the ability to lose elections, admit the legitimacy of the loss, but live on to regroup and win another day. Only when the power of the winners to impose immense changes with narrow majorities is constrained can losers do that.