It’s a new year, a time of hope and possibility. Let’s talk about reform.
Last week, in the first of three posts about how the incoming administration can prevent a second bout of authoritarianism, I wrote about the crisis management skills Joe Biden will need to exhibit in order to address four intertwined policy emergencies: the pandemic, economic devastation caused by the pandemic, our long overdue reckoning on racial injustice, and the climate catastrophe. Crisis management is but one of three things the Biden administration will need to aggressively pursue, along with institutional repair and accountability. On the matter of institutional repair I wrote:
Add to the above-mentioned crises a fifth equally pressing one — the crisis of broken political institutions. We risk a second rendezvous with Trumpism unless all people can vote freely and safely, unless the preferences of the majority can find a voice in government action, unless the legislative and judicial branches stop serving as a backstop for reactionary interests, and unless we find a way to embrace a common factual understanding of the world through reform of our fragmented media.
This is a tall order and of the utmost urgency. As critical as it is for Biden to address the pressing policy problems that were exacerbated by the neglect and malevolence of the outgoing administration, it is essential that he rebuild the institutions of government that have been assaulted for four years and — to borrow Biden’s campaign rhetoric — build them back better to enable widespread democratic participation and re-establish majority rule. If conquering the pandemic will show people how government can deliver for them, institutional repair will allow the beneficiaries of effective governance to register their approval at the ballot box and keep governments with majority support in power.
The objective should be recalibrating institutions designed to protect minority rights so they can no longer be used to impose minority rule. The Senate filibuster, for instance, protects minority rights when it is used to slow the legislative process to allow time for debate, but it imposes minority rule when it is routinely applied to require de facto supermajorities to pass legislation. Likewise, the structure of the Senate protects minority rights by giving equal representation to large and small states, but it becomes a vehicle for minority rule when population imbalances become so great that Wyoming’s 570,000 residents have seventy times more influence than California’s 40 million.
Build these imbalances into the Electoral College by including each state’s Senate representation in its electoral vote allocation and you get a presidential election system designed to protect minority rights that can fall out of balance when national political preferences sort along geographic lines, as they do today. You have a serious problem for representation when one party can lose the popular vote by three million and win 306 electoral votes, but the other side needs to win the popular vote by seven million to achieve the same outcome.
This problem is greatly compounded if the party that elects a president without winning the popular vote uses their overrepresentation in the Senate to fill the judiciary with their nominees when they are in power (and uses that same power to block the nominees of the other party when they are not), so they can dominate all three branches of government without broad-based support. The Supreme Court can then gut the Voting Rights Act and make it easier for that party to disenfranchise the other side’s voters. Add the serendipitous opportunity to gerrymander several large states by virtue of winning legislative races during the 2010 and 2020 reapportionment cycles and you can add overrepresentation in the House to the minority rule problem. Why should Republicans moderate their appeal when control of both houses of the legislature and all three branches of government is in reach without majority support?
There is no single or easy way to fix this imbalance. The structure of the Senate and the Electoral College are built into the Constitution and could only be changed by an amendment process that would require less populated states to vote away their interests. However, it is possible to chip away at the problem as political circumstances permit. The filibuster could be scrapped or reconfigured by majority vote at the start of the new Senate session, but it would only matter if Democrats hold a majority of seats (which will be determined in the dual Georgia run-offs on Tuesday). Simple legislation could correct some of the worst imbalances — if the votes are there to get it through Congress. When Democrats regained control of the House of Representatives after the 2018 election, the first legislative act on their agenda — HR1 — was the “For the People Act,” which would make voting easier by establishing national voter registration and making Election Day a federal holiday; undo gerrymandered districts by taking the redistricting process out of the hands of partisan legislatures; restore voting rights to ex-felons; and make it harder to purge voting rolls. It would also mandate campaign finance and ethics reforms.
Companion legislation in the form of the John Lewis Voting Rights Act would restore federal protection for voting rights in states with a history of voter suppression. Statehood for the District of Columbia would enfranchise close to one million people who lack representation in the House and Senate and could probably be accomplished through an act of Congress. Legislative solutions for un-stuffing the federal bench should be forthcoming from Biden’s promised bipartisan commission on reforming the courts, and it is not unreasonable to expect that experts who think institutionally rather than ideologically would endorse expanding the Supreme Court and adding seats to a federal court system that liberals and conservatives agree is overworked.
In fact, from an institutional standpoint, none of these proposed changes should be particularly controversial because they extend and secure voting rights, make voting easier, and align representation with voter preferences. That they are incredibly controversial speaks to how much the electoral interests of the Republican Party have become detached from the values of representative government. Every one of these reforms would boost the prospects of Democratic candidates. That they would also recalibrate the political system to align with majority political sentiment speaks to how Republicans have given up on trying to engage that majority. But strengthening democratic institutions should not favor one party over the other, and would not if both parties were committed to democracy. Institutional reform would require Republicans to rethink the calculation that their survival depends on breaking the country in half, claiming the smaller piece and strong-arming their way to power.
The longterm benefits of engaging the broader electorate should be obvious to a party that is watching its base slowly disappear. That the immediate consequences would be devastating is precisely why institutional repair is critical, because without changing the political incentives, the appeal of breaking the system will only grow, and with it the party’s slide towards authoritarianism. This is also why all institutional reform efforts will be met with massive resistance. It will be difficult to accomplish if Biden has the slenderest of majorities in Congress, harder still if Republicans maintain control of the Senate. But there likely will be openings that the new administration can exploit. Cracks in the Republican coalition are revealing themselves as Donald Trump prepares to exit (or be pushed from) the stage, and they will grow larger as the returns from affiliating with him diminish.
This will be one of the dynamics I’ll be watching closely in the new year. Up next: the risks and essential rewards of accountability.