The Closing (Overton) Window to Save American Politics

American electoral politics is perhaps the greatest game of media and misdirection ever played, with no greater player than Donald J. Trump. Yet the name of the game is no longer convincing policy or even inspirational, rallying speeches: the name of the game is perception, image, distraction – the name of the game is ‘The Overton Window’.

Joseph P. Overton’s theory of ‘The Overton Window’ sets out a range of policies mainstream voters would deem acceptable. But what Overton didn’t consider was that this ‘window’ could be moved, tactically so, either towards the political left or, in Trump’s case, the right. Anything outside of this ‘window’ seems implausible, but as more and more propositions fall outside of what seems rational, a shift occurs. Policies that still fall outside of the window, albeit closer than others, seem more acceptable.

In practice, the Overton Window operates like a business negotiation, a perfect domain for someone like Trump to excel, as rather than negotiating property or capital, Trump negotiated policy with the American electorate. He began with outlandish requests, such as the proposed ban on transgender soldiers and immigrant child separation at the border; these policies seem bold, and for good reason.

As the electorate brings itself to seriously consider these proposals, policies like corporate tax cuts or conservative court packing appear much more viable, boring even, in comparison. Perhaps mistakenly so, Trump exploited this phenomenon to pass some of the most consequential bills in decades, without most of the electorate ever even knowing.

Whilst the US was engrossed in debate over travel bans, the revocation of DACA (Deferred Action for Childhood Arrivals) and even threats of nuclear war over Twitter, Trump played an abnormally quieter game. A game which included passing the largest overhaul of the US tax code in 30 years.

On December 20th, 2017, the US senate passed the Tax Cuts and Jobs Act (also known as the Republican tax reform bill) which proposed a decrease of corporation tax to just 21%, decreases in estate tax, investment income and more. The bill passed with 51-48 votes. Yet in many ways this reform was passed much earlier. Republican senators had already agreed to vote for the bill before it was even written, and when it was passed, after a series of messy and informal edits, the bill contained a $250 billion error.

The magnitude of this bill should’ve made headline news the next morning; a disaster for Republicans that would haunt them into the upcoming midterm election. But it didn’t. Instead, the headlines were plagued with Trump’s overnight twitter storm of Russian conspiracy theories, which pundits duly covered over the tax bill.

Trump’s flashy tweets and unthinkable executive orders, while seemingly ill-advised, acted as an impenetrable shield for his deeply conservative agenda, which  ratings-driven media outlets almost completely ignored.

At this point, it was clear the game Trump had decided to play, and clearer still how senior Republicans had decided he could be useful. Taking the role of an illusionist, Trump would conceal a wave of less stirring but highly consequential legislation behind a curtain of controversy. Yet while bills like the Tax Cuts and Jobs Act can be amended or overturned, Trump’s astute abilities in misdirection would be used for much more.

Usually, the three branches of the US government are thought of as the executive, the legislative and the judicial. Trump entered his term as Commander in Chief with a Republican trifecta (control of the presidency, the Senate and the House of Representatives), yet it was the federal courts that stood in his way, specifically the Ninth Circuit of the Court of Appeals. But with this problem, Trump was also handed a solution.

From day one of his tenure, Trump found himself presiding over 100 vacant federal judge positions, yet this wasn’t an intentional gift from his predecessor. In fact, President Obama worked tirelessly to fill these seats. However, the Republican-led Senate outright refused Obama a vote on any appointment they weren’t satisfied with, granting newly elected President Trump an abnormally large purview over all levels of the judiciary. Crucially, as circuit and supreme court justices serve for life, Trumps appointees and the judgements they cast would last a generation.

“We’re making a generational change in our country” – Mitch McConnell – Senate Majority Leader (Hugh Hewitt Radio Show, 2018)

This wasn’t just a life of service for Trump’s appointed federal judges. It was a life sentence for America, too. And it wasn’t limited to the circuit and district federal courts either. Of those 100 vacancies, Trump already held one vacant Supreme Court Justice seat, thanks to Mitch McConnell’s brazen refusal to hold a vote on President Obama’s nominee, Merrick Garland.

With the retirement of Justice Anthony Kennedy and the unforeseen death of Justice Ruth Bader Ginsburg, Trump found himself with three Supreme Court vacancies, vacancies he chose to fill with a selection of hyper-conservative justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

The Supreme Court plays a crucial role in the judicial branch of the US government, hearing the most consequential legal queries and appeals in the land. Now, with as many Trump appointees as liberal-leaning Justices, Trump's influence on this branch will doubtless shape the legal destiny of the nation for a generation.

Both the Republican Tax Reform bill and Trump’s deep impact on the American judiciary are merely two instances of his untold legacy, showcasing just how Trump shifted the 'Overton Window' in a successful game of negotiation with the American electorate.

Trump became so extreme, so disastrous, that he desensitised a whole electorate to policies and politicians that years ago would have been political outcasts. From the ages of John McCain and Mitt Romney came a former steak salesman that not only won the 2016 presidential election, but enacted the most consequential conservative agenda in decades.

Regardless of Trump’s success in battling the federal courts, his game came to an end in the court of public opinion. It was Joe Biden who would be elected the 45th President on Saturday, November 7th, 2020.

As liberals take a sigh of relief, observing Biden eliminate Trump’s ‘louder’ legacy, including re-admitting the US back into the Paris Climate Agreement, his underlying influence, whether in the form of tax cuts or judicial appointments, remains largely untouched.

Whether Biden shall truly unify the nation and put an end to Trumpism is yet to be seen, but one thing is sure: the untold impacts of the past four years, many of which cannot be revoked, offer a much greater challenge to America – a challenge it doesn’t even realise it’s facing.