If you’re looking for a microcosm of the burdens weighing on Democrats, look at what happened last week when the Supreme Court upheld Arizona’s new voting laws. A state legislature and a Republican governor passed those rules into law. When they were challenged, a conservative Supreme Court upheld them by a forbidding 6-3 majority. And in its decision, the Court strongly hinted it would look favorably on the voting restrictions imposed, or underway, in a dozen other states.
The decision was a gift-wrapped present to future Republican candidates, and a direct slap at one of the top priorities of not just Democrats, but good-government advocates across the country. The Democratic response? President Joe Biden urged the Senate to pass the For the People act, a voting rights bill that doesn’t even have full support from his own party. Massachusetts Senator Ed Markey, echoing the thoughts of many, promptly tweeted out some items from the progressive wish list: “We must abolish the filibuster and pass the For the People Act and John Lewis Voting Rights Act,” he said, “and we must expand the Supreme Court.”
In Washington, in the year 2021, neither of these things is going to happen. The “For the People Act” can only be passed by killing off the filibuster, a notion that is itself at least two votes short of reality. Even full passage of the law wouldn’t solve many of the key challenges those GOP laws present for democracy. And expanding the Court by four members—to let President Biden create a 7-6 liberal majority—has nowhere near majority support in the Senate and is in any case a genuinely bad idea.
It wasn’t supposed to happen this way, with the Democrats relying on wishful thinking and vague threats to fulfill their biggest campaign promises. Didn’t Joe Biden win the Presidency with a 7 million vote popular majority? Didn’t Democrats win both houses of Congress? If there’s anything more unnerving and disheartening than the Republican Party’s shredding of core democratic and republican principles over the past several years, it’s how so many of the Democrats’ attempts to fight back are grounded in delusion or futility.
There are reasons. The wishful thinking that seems to have captured the party begins with a profound mismeasurement of what happened last November, which in turn feeds a profound misunderstanding of how major political change happens—and in turn triggers the embrace of “solutions” that are similarly grounded in delusion. What remains to be seen is whether there is a politically potent answer to this dilemma. (Spoiler alert: the answer is “yes…maybe”).
Reality Check 1: Biden Can’t Be FDR (or even LBJ)
There’s no question that Biden is swinging for the fences. Beyond the emerging bipartisan infrastructure bill, he has proposed a far-reaching series of programs that would collectively move the United States several steps closer to the kind of “social democracy” prevalent in most industrialized nations: free community college, big support for childcare and homebound seniors, a sharp increase in Medicaid, more people eligible for Medicare, a reinvigorated labor movement. It is why 100 days into the administration, NPR was asking a commonly heard question: “Can Biden Join FDR and LBJ In The Democratic Party’s Pantheon?”
But the FDR and LBJ examples show conclusively why visions of a transformational Biden agenda are so hard to turn into reality. In 1933, FDR had won a huge popular and electoral landslide, after which he had a three-to-one Democratic majority in the House and a 59-vote majority in the Senate. Similarly, LBJ in 1964 had won a massive popular and electoral vote landslide, along with a Senate with 69 Democrats and a House with 295. Last November, on the other hand, only 42,000 votes in three key states kept Trump from winning re-election. Democrats’ losses in the House whittled their margin down to mid-single digits. The Senate is 50-50.
Further, both Roosevelt and Johnson had crucial Republican allies. In the 1930’s, GOP Senators Robert LaFollette and Frank Norris were ardent advocates for organized labor. In the ‘60s, Senate Minority Leader Everett Dirksen gave LBJ crucial help in getting his civil rights agenda passed. When Medicare became law in 1965, it passed with 70 Republican votes in the House and 13 GOP votes in the Senate. In today’s Washington, Kevin McCarthy and Mitch McConnell have been successfully working to keep Republican support for Biden’ policies at precisely zero.
So the grander ambitions of Democrats run smack against history. If Biden had come into office with a Congress skewed the way FDR and LBJ’s were skewed, nobody would be talking about ending the filibuster, or sliding big policies through via reconciliation. Biden could enact his most ambitious plans with ease. By contrast, if those presidents had been elected with the narrowest of margins in key states, and had a razor-thin House majority, a deadlocked Senate, and adamant Republican resistance, the New Deal and the Great Society might well have been nothing more than historical footnotes.
Indeed, given the 2021 reality, Democrats should be celebrating a possible bipartisan trillion-dollar plus infrastructure bill and the $ 1.9 trillion American Rescue plan as significant first steps. Instead, progressives are turning their fire on the President for failing to govern as if he had LBJ- or FDR-like clout.
Reality Check 2: The fight is asymmetrical—and favors the GOP
While Democrats gesture on Twitter at building new systems, Republicans are working the current one with ruthless effectiveness.
The threats to a free and fair election that have emerged since last November are real—and require nothing more than the willingness of state legislators to use and abuse the existing tools of government. Arizona, whose two new voting rules were just validated by the Supreme Court, also took the power to litigate election laws away from the (Democratic) Secretary of State and gave the power to the (Republican) Attorney General. In at least 8 states, Republicans are advancing legislation that would take power away from local or county boards. Many more states are moving to make voting harder. It might be anti-democratic, but it falls well within the rules.
Also within the rules: How McConnell helped build a federal bench almost certain to ratify the power of those legislatures to pass laws far more restrictive than the Arizona rules upheld last week. He creatively eviscerated Senate norms to keep Merrick Garland off the Supreme Court and hand Donald Trump an astonishing three nominations in a single term. And he’s recently suggested that, should a Supreme Court vacancy open, he’d block even consideration of a Biden nominee if the Republicans take the Senate back in 2022. This is abnormal, anti-democratic and a cynical abuse of power—but it’s legal within the existing rules.
And it’s savvy politics: His own base loves it, and voters in the center see a party playing tough, but still within the rulebook.
In the face of such provocations, some Democrats want to throw out the rulebook and fundamentally alter the Court. Senator Markey and House Judiciary Committee Chair Jerrold Nadler introduced legislation to expand the Court with four new members, which—assuming all goes according to their plans—would make for a seven-to-six liberal majority.
There are only two problems with this: It is all but politically impossible and it is a really, really terrible idea. Even Mitch McConnell, at the peak of his Congressional majority under Trump, never tried to shove new seats onto the court. At least three Democratic senators—Michael Bennet, Mark Kelly, and Catherine Cortez Masto—are publicly opposed to the idea, and several others, like Ohio’s Sherrod Brown, are openly dismissive of the possibility.
Beyond the numbers, however, is the blatantly transactional nature of the idea. Its sole purpose is to overcome an entrenched conservative majority. It’s no more defensible than was Ted Cruz’s declared intention to keep Scalia’s seat open for four years in the event Hillary Clinton had been elected in 2016. And—to state the obvious—it would prove no obstacle to a future Republican President and Congress adding more justices of their own to the Court, until you’d need a chamber the size of the Senate to accommodate all the bickering new justices. As an institution, the Supreme Court would be effectively dead.
It might be fun for the Democrats to imagine changing the game right under McConnell’s nose—but they should remember what happened the last time they tried it. In 2013, leader Harry Reid decided to end the filibuster for all judicial nominations except the Supreme Court, hoping to push more of Obama’s nominees through. But when Democrats lost the Senate in 2014, that reform proved meaningless; more than 70 percent of Obama’s post-2014 nominations failed. The person who capitalized on Reed’s move was Mitch McConnell: In the four years the GOP held the White House and the Senate, more than 200 Trump-nominated judges were confirmed. McConnell then scrapped the filibuster for the high court as well, giving him the tools to put three Supreme Court justices on the bench. As a result, conservatives will dominate that branch for years to come.
Reality Check 3: The Democrats’ Legislative Fix Will Never Happen—And Doesn’t Even Touch the Real Threats.
It’s understandable why Democrats have ascribed a life-or-death quality to S. 1, the “For the People” bill that would impose a wide range of requirements on state voting procedures. (With Joe Manchin’s declared opposition, the bill is somewhere between moribund and dead, however potent it may be as a fundraising pitch for midterm money.) The dozens—or hundreds—of provisions enacted by Republican state legislatures and governors represent a determination to ensure that the GOP thumb will be on the scale at every step of the voting process. The proposed law would roll that back on a national level by imposing a raft of requirements on states—no excuse absentee voting, more days and hours to vote—but would also include public financing of campaigns, independent redistricting commissions and compulsory release of presidential candidates’ tax returns.
There are all sorts of Constitutional questions posed by these ideas. But there’s a more fundamental issue here: The Constitutional clause on which the Democrats are relying—Article I, Section 4, Clause 1—gives Congress significant power over Congressional elections, but none over elections for state offices or the choosing of Presidential electors.
What this implies is that states could require different rules for voting depending on the office. It could, as a bill being considered by the New Hampshire legislature currently proposes, set different dates for electing federal and state officials, with the state imposing sharp limits on voting for governor, state legislative seats and Presidential electors—and a different, congressionally-imposed rule for the House. If you think Republican state legislators wouldn’t eagerly embrace such an administrative burden, you haven’t been paying attention.
Finally, there is nothing in S. 1—nor in the narrower John Lewis bill—about the more serious threats to a fair election: the rules that apply after the votes are counted. In state after state. GOP legislatures are pushing to empower partisan poll workers to challenge vote counting, replace local and county officials with more partisan figures; some have even flirted with arrogating to themselves the ultimate power to certify or reject future election results. Once again, these moves are well within the power of state legislatures. They require only the willingness, or cynical eagerness, to discard the norms that have governed our elections. And there is nothing in the bills Democrats have invested such hope in to cure those post-election threats.
Reality Check #4: The Electoral College and the Senate are profoundly Undemocratic—and We’re Stuck with Them.
Because the Constitution set up a state-by-state system for picking presidents, the massive Democratic majorities we now see in California and New York often mislead us about the party’s national electoral prospects. In 2016, Hillary Clinton’s 3-million-vote plurality came entirely from California. In 2020, Biden’s 7-million-vote edge came entirely from California and New York. These are largely what election experts call “wasted” votes—Democratic votes that don’t, ultimately, help the Democrat to win. That imbalance explains why Trump won the Electoral College in 2016 and came within a handful of votes in three states from doing the same last November, despite his decisive popular-vote losses.
The response from aggrieved Democrats? “Abolish the Electoral College!” In practice, they’d need to get two-thirds of the House and Senate, and three-fourths of the state legislatures, to ditch the process that gives Republicans their only plausible chance these days to win the White House. Shortly after the 2016 election, Gallup found that Republican support for abolishing the electoral college had dropped to 19 percent. The National Popular Vote Interstate Compact, a state-by-state scheme to effectively abolish the Electoral College without changing the Constitution, hasn’t seen support from a single red or purple state.
The point isn’t that the Electoral College should be retained. It’s that the tool for ending it is a process that requires a broad national consensus, geographic as well as numerical. And, unlike the 18-year-old vote, or women’s suffrage, the “nuclear option” of a Constitutional amendment to change how we elect presidents is nowhere near that stage. Clearly Republicans have learned just how much the Electoral College favors their candidates and seem unconcerned that they are evidently no longer capable of winning more votes than their opponents.
The same broad shifts help explain why the Senate has become an increasingly uphill fight for Democrats. Critics of its highly undemocratic structure note that with population shifts, the imbalance between the most and least populous states has grown exponentially. (The difference between California and Wyoming in how many citizens are represented by each Senator is an astonishing 78 to 1.)
In fact, the smallest states have just as many Democrats as Republicans—and even apart from that, the complaints have as much relevance as bemoaning the law of gravity or human mortality. Equal representation in the Senate is the only part of the Constitution that cannot be amended. To understand how far afield the Democrats are now thinking, the journal Democracy recently undertook to write a wholly new Constitution, which abolishes both the Electoral College and equal representation in the Senate. Prospects for adoption are… low.
The plausible (but difficult) solution: Just win more.
Whether the public sees Democratic demands for these structural changes as overdue or overreaching, the key point is that they are currently exercises in futility. The only plausible road to winning their major policy goals is… to win by winning. This means politics, not re-engineering. They need to find ways to take down their opponents, and then be smarter about using that power while they have it.
They certainly have issues to campaign on. In the few weeks, we have learned that some of America’s wealthiest people have paid only minimal or no federal income tax at all. (Jeff Bezos even got a $ 4,000 child tax credit.) Even as the Wall Street Journal editorial writers were responding to a Code Red emergency (“class warfare!”), the jaw-dropping nature of the report—followed by a New York Times piece about the impotence of the IRS to deal with the tax evasions of private equity royalty—confirmed the folk wisdom of countless bars, diners, and union halls: the wealthy get away with murder.
For a Democratic Party whose core theme is to bring more fairness into American economic life, these reports represent a huge cache of political ammunition. They underscore why Biden wants tougher tax enforcement, a global minimum corporate tax, and an end to some of the most egregious (and perfectly legal) tax outrages. It is—or should be—an unrelenting theme part of the Democrats’ arguments. So should a near-daily reminder, in cities and towns across the county, about the businesses and homes the massive Covid relief package has saved, and about the totally unified Republican opposition to that plan. That message—along with specific accounts of what a major infrastructure program would do—needs to be delivered at a granular level from now until November 2022.
By contrast, if Democrats believe that a parade of ambitious, intellectually intriguing bills doomed by a GOP Senate minority will resonate back home, they are under a serious misconception about how intently regular voters follow the legislative process. The disconnect between most voters and the daily play of politics is more like a canyon. It will take a focused, repeated message to bridge that gap.
Of course this is a whole lot easier said than done. A political climate where inflation, crime and immigration are dominant issues has the potential to override good economic news. And 2020 already showed what can happen when a relative handful of voices calling for “defunding the police” can drown out the broader usage of economic fairness. (It’s one key reason why Trump gained among Black and brown voters, and why Democrats lost 13 House seats.)
The lesson of history is clear: America’s historic steps toward social justice and deepening our democracy have always—and only—happened after major Democratic political victories. In the absence of significant Republican support for those steps, the need for that kind of victory is even more crucial. Otherwise, we can expect more arguments that ring from the fanciful to the desperate to the delusional.