CL&L | 2020 Fall | Goldman | What Do You Think?, Discussion | for Oct 7 | Page 1 Trump could stay in power even if he doesn’t win the election. The Constitution allows it. Fareed Zakaria | Washington Post | Sept 24, 2020 | Opinion By declining to commit to a peaceful transfer of power, President Trump has agitated many who fear he will refuse to leave office even if he loses the November election — and may even resort to violence. The terrifying reality is that there are also several mechanisms that are legal and constitutional that could enable Trump to stay in office without actually winning the vote. The system of electing the president is complicated because it was not designed to be directly democratic. The Constitution calls for states to choose the presidential electors, who in turn gather to vote for the president. Over time, states have passed laws that ensured their state’s popular vote for the presidency would determine the electors. But those are laws, not a constitutional obligation. Now, imagine the scenario during election week: Trump is leading on Nov. 3, but Democratic nominee Joe Biden gains ground in the days following. Republicans file objections to tens of thousands of mail-in ballots. Democrats file countersuits. Taking account of the confusion, legislatures decide to choose the electors themselves. Here’s the worry. Of the nine swing states, eight have Republican legislatures. If one or more decide that balloting is chaotic and marred by irregularities, they could send what they regard as the legitimate slate of electors, which would be Republican. Democrats may object and file lawsuits. In some of those states, Democratic governors or secretaries of state could send their own slates of electors to Washington. That would add to the confusion, but that might well be part of the Republican plan. When Congress convenes on Jan. 6 to tally the electors’ votes, there would be challenges to the legitimacy of some electors. Congressional Republicans would agree that disputed states should not be counted. That would ensure that neither candidate would get to 270 electoral votes. At that point, the Constitution directs that the House of Representatives vote to determine the presidential election. But it does so with each state casting a single vote. If the current numbers hold, there would be 26 state CL&L | 2020 Fall | Goldman | What Do You Think?, Discussion | for Oct 7 | Page 2 delegations that are Republican and 23 Democratic (with one tied), so the outcome would be to reelect Trump. Trump does not need to do anything other than accept this outcome, which is constitutional. (Hat tip to Tom Rogers and Tim Wirth for their writings on this topic.) Trump clearly understands this chain of events. He has been casting doubt on mail-in ballots for months, insisting that the results must be the ones that reflect the tally on election night. He said this week that without mail-in ballots, there would be no worries about a transfer of power because there would simply be a continuation of his rule. He has also acknowledged that “at a certain point, it goes to Congress.” For this scenario to play out, state Republican parties have to put their desire to win above concerns that all voices are heard. Unfortunately, recent history suggests that most will readily make this trade. Many state Republican parties have been actively attempting to suppress votes. Just a few examples: In 2011, Texas passed a law requiring a government ID for voting, and allowed gun licenses but not student IDs from state universities. Ostensibly, this was to prevent voter fraud, which several studies have shown is largely nonexistent. In 2017, Georgia passed a law blocking voter registrations with minor typos, which mainly affected Black voters. In Florida, the Republican governor and legislature have effectively gutted a state initiative that restored voting rights to more than 1 million former felons, disproportionately Black. American democracy is getting warped because the Republican Party believes its path to power lies not in getting a majority of the votes but through other means. In 2018, thanks to redistricting, Republicans in Wisconsin, having won about 45 percent of the vote, ended up with almost 65 percent of the seats in the state assembly. They have become used to this kind of situation on the national stage. Since 1992, the Republican presidential candidate has won the popular vote only once — in 2004, in the wake of the country’s worst terrorist attack and with a wartime “rally around the flag” sentiment. Nevertheless, Republicans have held the White House for almost half of those 28 years. The United States prides itself as the world’s leading democracy. And yet, because of a vague and creaky constitutional process and ferocious CL&L | 2020 Fall | Goldman | What Do You Think?, Discussion | for Oct 7 | Page 3 partisanship, this November we might put on a display of democratic dysfunction that would rival any banana republic on the planet. ▪

China is escalating its punishment diplomacy Democracies must unite to stop Beijing’s coercive commercial statecraft against other nations Jamil Anderlini | Financial Times | Sept 22,2020 Just two days before President Xi Jinping was scheduled to speak to Chancellor Angela Merkel last week, China blocked all pork imports from Germany. The ostensible reason was the death of a single German wild boar from African swine fever, a disease already endemic in China. But some analysts jumped to a different conclusion. To them, this was the latest example of Beijing’s coercive commercial diplomacy — an evolving facet of Chinese statecraft that has come to dominate relations with several countries. This coercion is never quite acknowledged publicly. As with German pork, Beijing announced it has blocked imports or opened investigations into a country’s products because of safety concerns or some other bureaucratic excuse. But these actions almost always target nations that have recently displeased Beijing; and they are intended to force a change in policy or behaviour. Blocking pork imports was a warning to Berlin not to join Washington’s campaign to isolate Beijing and to stop criticising China’s human rights record. Australia provides an instructive example. Sino-Australian ties have been frosty for some time but plummeted into deep freeze in April after Canberra called for an independent investigation into the origins and initial handling of coronavirus. Within weeks, China had banned beef imports from several big Australian suppliers because of “labelling and certificate requirements”. It followed up with “anti-dumping” taxes on Australian barley, investigations into Australian wine imports and warnings for its citizens not to travel down under. Before Australia, it had been Canada’s turn after authorities there detained Meng Wanzhou, chief financial officer of the Chinese tech giant Huawei, in late 2018 at the request of the US. In addition to jailing two Canadians on CL&L | 2020 Fall | Goldman | What Do You Think?, Discussion | for Oct 7 | Page 4 “national security” charges, Beijing issued travel warnings and blocked imports of Canadian soyabeans, canola and meat because of improper certification and “harmful organisms”. Other targets include the Philippines and Japan because of flare-ups in territorial disputes, Sweden over criticism of China’s human rights record, the UK and Mongolia because of visits by the Dalai Lama and South Korea because it wanted to install a US-built missile defence system. A secret threat is not much of a threat so, while denying any connection in public, Beijing will quietly make clear to the offending party that their actions, statements or policies are the reason for the punishment. State media often spell it out more clearly, as do China’s “wolf warrior” diplomats. These warnings tend to be phrased like something out of The Godfather: “Nice car industry you have there Germany, pity if something were to happen to it if you don’t invite Huawei into your 5G networks.” The extralegal, plausibly deniable measures are designed to avoid cases being brought at the World Trade Organization and to allow Beijing to dial the action up or down without a formal change in policy or law. Beijing has vastly expanded the practice, with more than half the identifiable examples since 2010 happening in the last three years. This is because the tactic works. An early success was with Norway. Beijing shunned Oslo and blocked salmon imports on health grounds after the Nobel Peace Prize was awarded to imprisoned Chinese dissident Liu Xiaobo in 2010. After several years of punishment, Norway’s voting patterns in the UN shifted to align more closely with China, it supported Beijing’s observer status at the Arctic Council, its leaders promised not to meet the Dalai Lama and vowed not to do anything to undermine Beijing’s “one-China” policy. Today, China claims to be the biggest trade partner to 130 countries and regions and the demonstration effect — “killing the chicken to scare the monkeys” as it is known in China — is often enough to cow others into compliance. The coercion is calibrated to hurt influential industries that have nothing to do with the dispute. This usually convinces companies to lobby against their governments on Beijing’s behalf. Potential damage to China’s own industries CL&L | 2020 Fall | Goldman | What Do You Think?, Discussion | for Oct 7 | Page 5 is minimised. In Australia’s case, barley, wine and beef can be sourced from many other countries — but it provides 60 per cent of the iron ore China needs to make the steel for its infrastructure-led growth model. Punishing Aussie miners would be self-defeating. This highlights the limits of such coercion. Wielding trade and market access as a political weapon can hurt your own companies and economy. It annihilates trust and pushes countries to diversify away from China to make them less vulnerable to coercion. This is already happening with South Korea, Japan and Taiwan. All now have formal policies to reduce their economic reliance on China. But the pushback has been piecemeal, with many countries preferring to capitulate to Beijing’s demands to resume trade and market access. What is needed now is a multilateral mechanism for countries to study examples of this coercion. The next step is for the EU, US and other democracies to form a united front and formally agree they will not be played off against each other when individual countries are “punished” by Beijing. Until now, the benefits of coercive commercial diplomacy have outweighed the costs. If other countries want Beijing to stop, then they need to reverse that equation. ▪

America’s history war looms over the presidential election Trump’s call for ‘patriotic education’ creates a dilemma for the Democrats Gideon Rachman | Financial Times | Sept 28, 2020 | Opinion Was the American nation founded in 1776 or 1619? It sounds like a question for an exam paper. But it has become an issue in the 2020 presidential election. In a speech at the National Archives, earlier this month, Donald Trump, promised to create a “1776 commission” to “restore patriotic education to our schools” and to counteract any effort to brand America as a “wicked and racist nation”. The US president explicitly took aim at the 1619 project — a much-discussed series of articles published by the New York Times and named after the year that the first enslaved Africans arrived in the colony of Virginia. CL&L | 2020 Fall | Goldman | What Do You Think?, Discussion | for Oct 7 | Page 6 That project was a reframing of US history that placed slavery and racial oppression at the heart of the American story. By contrast, Mr Trump argues that liberty should be seen as the central theme of American history. So his commission would reassert 1776 — the year of the Declaration of Independence — as America’s foundational moment. A reasonable person might conclude that US history is complex and that stories about freedom and oppression are not mutually exclusive. But this is raw politics. By highlighting the 1619 project — at a time of heightened racial and social tension — Mr Trump aims to put Joe Biden, the Democratic party’s presidential candidate, in a tricky situation. The question for the Democrats is how simultaneously to acknowledge the centrality of racial injustice in the American story while promoting the positive vision of the country that is expected of would-be presidents. The publication of the 1619 project, which began last year during the 400th anniversary of the beginning of American slavery, sparked enormous interest and controversy. Many schools and universities embraced it and moved to incorporate it into their curricula. It provided some of the intellectual background for the explosion of emotion and activism associated with the Black Lives Matter movement. But it also attracted criticism — some of it from unexpected quarters. The scholarship behind the project was questioned in a series of interviews with prominent historians run by the World Socialist Web Site — whose class-based view of American history was at odds with the race-based view promoted by the 1619 project. Several of these historians went on to write a critical letter to the New York Times — taking issue with the project and demanding corrections. One key dispute was about the claim — made in a passionate and closely-argued introductory essay by Nikole Hannah-Jones — that a primary motivation for the American Revolution was the desire to preserve slavery in the US, at a time when it was coming under pressure in Britain. The critical historians, who included some of the best-known scholars of the American Revolution, branded this claim as simply untrue. But some younger academics have supported the 1619 project’s argument. They point, in particular, to Dunmore’s Proclamation, issued by the British governor of Virginia in 1775, promising freedom to slaves willing to flee their owners and join the British in fighting the American rebels. This academic debate CL&L | 2020 Fall | Goldman | What Do You Think?, Discussion | for Oct 7 | Page 7 rumbled on and the New York Times has since amended some of the project’s original language to soften its claims, without pulling back from its central argument. This debate is of much more than academic significance. It goes to the heart of the claim made by the Black Lives Matter movement that slavery and racism have been integral to the American project from the beginning — and underpinned even some of its most celebrated moments, such as the Declaration of Independence and the writing of the constitution. American conservatives understand that if a new generation embraces that view it will be easier for the BLM movement to win support for deep social and structural change. But, as well as seeing danger in the 1619 project, the Trump camp sniff political opportunity. It provides a perfect chance to brand the Democrats as “anti-American”. The Republicans know that Americans tend to be pretty patriotic and would like to embrace the pilgrims’ view of their nation as a “shining city on a hill”. Mr Biden has yet to show how he will handle Mr Trump’s call for patriotic education and the president’s attack on the 1619 project. If the Democratic nominee is put on the spot, he could borrow the framing used by former president Barack Obama at this year’s Democratic convention. Without referring to the 1619 controversy directly, Mr Obama acknowledged that the US constitution “wasn’t a perfect document. It allowed for the inhumanity of slavery”. But, he continued, “embedded in this document was a north star that would guide future generations . . . a democracy, through which we could better realise our high ideals”. Mr Obama’s approach was a humane and nuanced way to reconcile the tensions between the dark 1619 view of American history and the soaring 1776 version. Unfortunately, humane and nuanced are not words commonly associated with the Trump era. Do not be surprised if the politics of history resurface during this presidential election. This is not just a skirmish in the “culture war”. It is also an argument about the nature of the US and about political power. As George Orwell noted in his dystopian novel 1984: “Who controls the past, controls the future. Who controls the present, controls the past.” ▪