Gotterdammerung((The last days of the Third Reich, taking its name from the end of Wagner’s ‘Der Ring des Nibellungen.’ The word means “Twilight of the Gods,” and signals the end with chaos and destruction.))
Our understanding of historical narrative is not static. Perceptions of why things happen change over time, and our interpretation of past events depends on our own, or our group’s, point of view. Contrary to our simplistic concept of history (“just the facts ma’am”), historical narrative consists of both opinion and fact. The production of history by historians arises from the tension between “what happened” and “what is said to have happened.” While point of view (opinion) is inescapable in the telling of historical events, facts are essential. As inferred by the late Daniel Patrick Moynihan, everyone is entitled to their own opinion, but not their own facts. Granted in 2021 that seems a quaint sentiment, but we cannot survive as a society without a common factual basis. Democratic intercourse is argument over the meaning of agreed upon facts, not whether those “facts,” or any facts, are real.
Ted Cruz, Trump toady and liar extraordinaire, political opportunist and coward, is mounting a quixotic last gasp effort of the fact free zone known as the Trump Administration (Bowling Green Massacre, Canadians burning the White House, Revolutionary armies securing the airports), conniving to steal the election the President has convinced himself was stolen from him. Cruz seizes upon a little remembered event in US history to add historical precedent, thus a semblance of legitimacy, to the effort. Ironically, this turns out to be the silver lining behind the cloud of disinformation spewing from the Trump campaign: because hardly anyone remembers the so-called “Compromise of 1877 (or 1876),” millions are taking to Google, to Wikipedia and the History Channel, to find out what he is talking about. Those who are still open to the concept of fact based history will learn that Cruz’ assertions about that event are far removed from what actually happened (see below). But the point is that they will learn something they didn’t know about US history. And in a nation as starved for historical context as the United States, that is a good thing.
The Compromise of 1877 was an agreement that resolved the disputed 1876 presidential election between Democratic candidate Samuel Tilden and Republican candidate Rutherford B. Hayes. As part of the compromise, Democrats agreed that Hayes would become president in exchange for the withdrawal of federal troops from the South, effectively ending the Reconstruction era.
Five problems with this idea:((Edward Foley, “Cruz disrupting the electoral college count won’t change anything. It can still hurt democracy.,” Washington Post, January 2, 2021, https://www.washingtonpost.com/opinions/2021/01/02/ted-cruzs-plan-disrupt-congresss-electoral-college-count-wont-change-anything-it-can-still-do-damage-our-democracy/.))
First, the analogy to the Hayes-Tilden dispute is altogether inappropriate. In 1876 there was a genuine basis for contestation. Republican supporters of Rutherford B. Hayes were correct to claim that Democrats in the South had terrorized and disenfranchised Black voters; Hayes clearly would have won if the equal right to vote, as guaranteed by the 15th Amendment, had been enforced. Democrats, in turn, defended Samuel J. Tilden’s claim to victory in the disputed states by correctly observing that Republican canvassing boards had carried out vote-counting fraud to yield higher totals for Hayes.
Nothing remotely approaching those circumstances occurred in any state this year; just because Trump keeps tweeting false allegations does not mean there is something to investigate. And as for the group’s contention that the U.S. Supreme Court didn’t consider Trump’s fraud claims, well, that’s irrelevant: State courts were the proper venue for those claims, and they all dismissed them as baseless, as Sen. Patrick J. Toomey (R-Pa.) observed in his own condemnation of the Cruz-led move Saturday.
Second, Congress needed a commission for the Hayes-Tilden election because Congress itself was deadlocked: The Senate backed Hayes; the House, Tilden. There is no such deadlock now: Majorities in both the Senate and House are sure to uphold Biden’s victory. Cruz’s call for a commission is just a ruse to prolong Trump’s attempt to sow doubt on the result when there should be none.
Third, Cruz is incorrect to suggest that the Hayes-Tilden commission had “full investigatory and fact-finding authority.” The Congress that created that commission was careful to avoid doing that, because it was hotly contested whether Congress itself had the constitutional power “to go behind the returns” of a state’s electoral college votes, and Congress did not want to give the commission any powers that Congress itself did not have. The commission itself resolved the dispute in favor of Hayes by scrupulously avoiding fact-finding.
Fourth, Congress cannot create a new commission in the context of the proceedings planned for Jan. 6. The existing 1887 statute rejected the commission model, and instead wanted Congress itself to handle any issues that might arise concerning a state’s electoral votes — based on a set of rules that make “conclusive” whatever “final determination” a state’s own courts reach. Congress would need to repeal and replace the existing statute, which obviously won’t happen before Wednesday.
Fifth, Cruz’s idea that a state legislature could change its electoral votes based on a commission’s work is especially unconstitutional — and also ironic given his reliance on the Hayes-Tilden precedent. That commission ruled for Hayes in part because Article II of the Constitution requires electors in all states to vote on the same day, and thus a state cannot change the appointment of its electors after they have voted. The electors voted on Dec. 14, and it’s too late for a change according to Cruz’s own example.
Cruz’s statement purports to pay lip service to the values of democracy. But in fact it brazenly seeks to subvert those values.