Editor’s note: This article is part of a series from leading experts with practical solutions to democratic backsliding, polarization, and political violence.
On Jan. 13, the U.S. Department of Justice (DOJ) charged Stewart Rhodes, the founder of the Oath Keepers militia, with seditious conspiracy. The historic charge is an admission that Rhodes and a number of his militia members sought to interfere with the execution of the law – in this case, the certification of the presidential vote – or possibly bring down the government. But the trial is obscuring sluggish federal action and state backpedaling in other areas.
At a meeting of political violence experts in December, we realized that there was not a single indicator suggesting the United States is in a better position now than it was before the 2020 presidential election. The one difference is a president committed to the rule of law. To date, however federal action has failed to prioritize the threat. An interagency federal response is required to help overwhelmed states tackle countervailing policy responses at the state level and to address federal gaps and oversights.
For instance, egged on by Rhodes’ talk of civil war, members of the Oath Keeper’s militia marched up the Capitol steps on Jan. 6 in full tactical gear and in military stack formation. But the Oath Keeper’s Educational Foundation still holds 501c3 status to “give veterans an opportunity for continued involvement in community service,” allowing it to raise tax-exempt donations. It is not the only violent group with such status, according to the Anti-Defamation League. A federal interagency task force in charge of coordinating responses on political violence could catch such discrepancies.
Work is needed within the U.S. Department of Homeland Security (DHS) to tighten internal doctrine and regulation of law enforcement bodies to prevent misuse. Customs and Border Patrol tried to schedule an exercise in a Hispanic neighborhood of Texas on Election Day 2018. ICE erected inflammatory immigration billboards in battleground Pennsylvania a month before the 2020 elections. A federal plan would recognize that a very different president may sit in the White House in 2024.
The U.S. Department of Defense (DOD) has crafted thoughtful guidance for addressing extremism within its ranks. It bans behaviors, such as “liking” an extremist group on Facebook, but does not comment on belief. These rules steer clear of first amendment violations. Yet culture also matters, and the military must still grapple with extremist beliefs that may become more pervasive under this policy, a problem already affecting partner militaries such as Germany. In particular, Special Forces units that harbor extremist norms may pose a particular challenge, given how much these units are looked up to within the military and lauded in popular and militia culture.
While our problem is homegrown, Russia is happy to pour fuel on our conflagration. The State Department was funded in 2016 to fight foreign disinformation, but sat on the money for years. Instead, the U.S. intelligence community’s long-delayed Foreign Malign Influence Center should be created, and until then, the Cybersecurity and Infrastructure Security Agency at DHS should examine what can be done to reduce deliberate targeting of particular communities, such as U.S. Hispanics. A massive internet and television education campaign should help the public understand how propaganda is deliberately trying to subvert them, using DHS-funded research suggesting ways to inoculate individuals to make them more likely to resist efforts to incite them to violence.
Finally, the federal government needs to take a more proactive role in state efforts to fight violence and harassment. The federal government can prosecute most actionable threats committed using a telephone or the internet, since under 18 U.S.C. 875 it’s a federal felony to transmit threatening messages over an interstate communications device, and both the telephone and internet count even if the threat is issued and received within a single state. But the federal government usually defers to states in such cases. Yet some states and localities are overwhelmed, others are not committed to the same fight. It can be hard at times to tell the difference.
Some committed states need more help; they want a dedicated, working-level person who knows their state, who they can call to pull together the federal government response when there’s a problem. They need assistance understanding how to prosecute militias in their states, address violent rallies, and fire white supremacist or anti-government law enforcement without running afoul of first or second amendment laws.
Other states and localities are altering laws to incentivize violence. After the murder at the Charlottesville Unite the Right rally, Texas and Iowa offered civil immunity to drivers who hit protestors, Oklahoma also gave them criminal immunity. In still other cases, politicians cannot rely on law enforcement to uphold the rule of law. A prominent sheriff in Michigan, for example, supported a militia group even after they were caught plotting to kidnap Michigan’s governor Gretchen Whitmer, while in Detroit, police themselves drove an SUV through a crowd of protestors.
Meanwhile, specific, violent threats to local election officials who uphold the strength of our electoral system have become widespread. A Brennan Center survey from June 2021 found that a third of local election officials feel unsafe and a fifth fear death threats. The threats are happening within and outside of election cycles. Local election agencies are being overwhelmed by coordinated Freedom of Information Act requests that take up so much time and bureaucratic resources to address that some offices believe the intention is to create mistakes that will cause harm to elections or create grounds for lawsuits.
Election law violations generally only receive dedicated DOJ Election Crimes Coordinators in presidential election years. Instead, election offices need federal funding to handle the increased workload, enhanced federal cyber-assistance, and dedicated DOJ personnel year-round, in non-election years to address the increase in threats and legal issues.
It is excellent that the DOJ’s Election Threats Task Force made its first arrest last Friday. It is also a drop in the bucket. Election officials need Attorney General Merrick Garland to demand accountability and regular updates from the Task Force, given that many officials who have filed reports claim to have received no DOJ response. Clear lines of communication with groups that represent election officials, and data on how many cases have been reported and where they are in the process may keep hard-working local officials from losing morale and quitting when fair, well-run elections are most needed.
The DOJ should offer clarity on threat reporting procedures and field guidance on election crimes. Meanwhile, for individuals who may intentionally be downplaying the problem, such guidance should be paired with protocols for holding law enforcement accountable should local agencies fail to report intimidation of election officials.
The federal government should not go into localities guns blazing – such tactics helped expand the militia movement in the 1990s. But they need to be more forward leaning in tackling the normalization of violence that is putting our democracy in peril.
Where states and localities cannot uphold the sanctity of elections and accountability for threats, the federal government needs to clearly show the public that it will uphold the rule of law. The sedition charges for the January 6th attacks are a good start. But the problem is larger, and is not centered in Washington D.C. A federal interagency response must be mounted to protect the neighbors who run our school boards, keep us healthy, and ensure our votes are counted.