On Friday, the Supreme Court swiftly dismissed a bizarre Texas lawsuit claiming that the votes cast in Georgia, Michigan, Pennsylvania, and Wisconsin should be tossed aside so that Donald Trump could be reelected president. Neither the lawsuit nor the outcome was terribly surprising. Trump’s legal team, and his GOP allies in key states, have filed dozens of frivolous lawsuits since Election Day trying to undo Joe Biden’s decisive victory, and virtually all have been rejected out of hand.
What made the legally flawed lawsuit unusual was that over 120 House Republicans signed an amicus brief on its behalf. Why in their right minds would so many lawmakers lend their names to a blatantly unconstitutional attempt to overturn an election – including nearly twenty Republicans who were effectively asking the Supreme Court to overturn the results of their own election to Congress?
As I have documented elsewhere, minority parties in the House are frequently driven to act in ways that support a same-party president. But congressional Republicans have taken this to an extreme. While they may have quietly neglected Trump’s legislative agenda during his presidency, most Republicans in Congress have been willing to publicly proclaim their loyalty to Trump, or at least not criticize him, even if it means violating their own principles.
This loyalty has been rooted not in adoration or kinship but in fear: fear that Trump’s base will vote against any Republican deemed insufficiently supportive of the president. As outgoing Rep. Denver Riggleman (R-VA) explained it, his colleagues joined the lawsuit knowing that they “can come out and say they’re defending the president, knowing that it’s a fool’s errand, but that it allows them to stay in good graces with a certain segment of the voting population.” (Letting the courts undo the dubious decisions of Congress is also an old trick.)
Congressional GOP loyalty to Trump hasn’t always been universal, and nearly 40% of the Conference did not add their names to the Texas suit. Interestingly, at first glance it appeared that the relative power of pro-Trump voters by district did not explain this intraparty split. Sarah Binder found no apparent correlation between support for the suit and either district partisanship or the margin of one’s reelection in 2018. And Matt Fuller noted that virtually none of the Republicans who joined the amicus brief advertised that fact on social media, as one would expect if they were hoping to gain credit from Trumpy voters.
To figure out why not all Republicans lent their names to the Texas lawsuit, I did a regression analysis to test the independent effect of several explanatory variables. The results (shown below) reveal that, controlling for other factors, there was, in fact, an electoral motivation. Lawmakers from more GOP-leaning districts (the variable “pvi_number”) were more likely to support the lawsuit, and those who did not run for reelection were less likely to do so.*
District factors were not the only consideration of Republican lawmakers, however. As in 2019, when many Republicans refused to support the president’s withdrawal of troops from Syria, House Republicans who are the ranking members of their committees were less likely to sign on. In other words, members of Congress in positions of policy leadership were less willing to show their loyalty to the president by supporting the suit.
The other factor that mattered—one with potentially serious ramifications—was lawmaker ideology. My measure of ideology (NOMINATE scores, the “nominate_dim1” variable), though widely used in political science, is not perfect; it is based on how lawmakers vote on a politically-determined legislative agenda, and it may capture party loyalty more than personal beliefs. Nonetheless, the statistical significance of NOMINATE scores in the regression model at least suggests that conservative Republicans were more willing to lend their names to the lawsuit than moderate ones.
This is an alarming finding. Faith in federalism, the rule of law, and the integrity of our electoral system must be widely shared for our democracy to continue; it cannot be contingent on ideological beliefs. Abandoning democratic principles because voters want you to is bad, but politicians are free actors—they can always chose to ignore their voters, or even help educate them about the importance of upholding democratic principles. If politicians themselves do not believe in those principles, we are in deep trouble.
These results are preliminary, and I’d like to believe Riggleman that Republicans who signed the amicus brief are true small-d democrats who saw what they did as harmless position-taking. In the future, maybe some of them will acknowledge that, as harmless as it may have seemed, their support for the lawsuit violated their oath of office and irreparably stained their reputation. But it’s probably a safer bet to heed the warning of Senator Chris Murphy: our representatives in Congress are increasingly divided not merely by their views on policy, but by their commitment to American democracy.
* I’m looking specifically at the number in the column labelled “P>|z|”. If it is below .05, the coefficient meets the standard definition of statistical significance; if it’s below .10, it’s marginally significant.