A Trifecta Wish List Part I: Institutional Arrangements

The possibility of a trifecta opens up a rare opportunity for some creative thinking regarding both the institutional structure and fundamental policy outputs to enhance the democratic credibility of the US. I’ve been keeping a wish list in my mind of sorts, and win or lose in November, I’m looking at developing this as a lecture on reforming the republic. These are not careful, pragmatic steps, and most are unlikely to ever see the light of day. Here, I discuss two institutional modifications, and my next post (likely next week) I’ll outline some policy outputs. This is by no means comprehensive, nor is it comprehensively thought out, but rather it’s a departure point for discussion.

If I had any choice in the matter, I’d send the Constitution through a metaphorical paper shredder and start over with a new Constitutional Convention. That won’t happen, of course; Americans are taught to place the document on a reverential plane alongside the Bible, and the founding fathers as political philosophical deities. That, and human nature. In teaching at an English university for the past 17 academic years, I’m not surprised that the students aren’t too eager to scrap the House of Lords. But, what does surprise me is that students in my final year class on American politics like the Constitution. And the US Senate. They seem to really like the US Senate.

I don’t. I’m not sure that anybody here at LGM does.

I teach the Dakota Question. As in, why in hell do we have two of them? There is no real difference between the two, but they get four United States Senators for their combined 1.67 million population, while California’s 39.5 million people get half the representation in the Senate. There is no historical, cultural, confessional, or ethnic reason for there to be two. (As an aside, I’ve driven across both; I did I-90 in the summer of 1991, and I-94 in the late summer of 1996. I personally liked North Dakota better, but, and this is a big but, the Badlands are awesome.)

Most people reading this blog know that the primary reason for two Dakotas, when the world could have really got away with just one, was to double representation in the US Senate. Increasing, or balancing, representation in the Senate had long been a motivation and a critical variable in determining which states were offered admission to the union. Just guessing, I’d estimate the number of states admitted primarily if not solely to either balance representation in the Senate between slave and non-slave states, or for significantly increasing the representation in that body for one of the two parties, to be at least a third. Representation in the Senate isn’t a by-product, but often the primary cause of the admission of states.

The problem is that some of the framers knew damned well that they had created an institution that did and does (much worse now) warp the concept of democratic representation into utter meaninglessness, hence this final clause tacked on to the end of Article Five almost as though it were an afterthought: “and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” We can’t get rid of it without tearing up the Constitution and starting over, and that’s not going to happen. Republicans like what they have in it, and plenty of Democrats will be too scared of the can of worms that might be opened.

So, in the long, proud tradition of the United States, let’s game the system. There is a blatantly moral case to be made for the District of Columbia, of course, and should the people of Puerto Rico opt for statehood, they should have statehood. But why not go further:

Demographic trends are such that a greater percentage of Americans are increasingly living in large states, which are disadvantaged in terms of representation. By 2040, it is estimated that 40 percent of Americans will live in just five states. Half the population will be represented by 18 Senators, the other half by 82.

The other bit of institutional gamesmanship, aka constitutional hardball, I’d like to see is court packing. I’m not sure how popular this is here, and I’m pretty sure that somewhere, both Scott and Paul Campos have outlined the spiral that this could create (also discussed here in this excellent Q&A with Professor Mark Tushnet), but the Merrick Garland case requires a response. We all know that Trump and McConnell would try to force through an additional appointment between now and the 3rd of November, if not the 3rd of January, whether or not some of the more vulnerable Republican Senators played along. But, I don’t think the Democrats should even wait for a 6-3 reactionary majority. The number nine is less sacrosanct than state boundaries. Even at the current 5-4, a John Lewis Voting Rights Act will ultimately require the good will of John Roberts, and it would require this good will at a point in time where the ephemeral Democratic control of both houses of Congress alongside the Executive will have dissipated. I think the risk of whatever the Republicans can throw at the Democrats after two additional seats are added to SCOTUS is worth the likelihood that a new VRA would be eviscerated by the extant 5-4 reactionary majority. Until the Republicans work out that they need to appeal to more than the Trump base of white racists, the only way they will ever cling to power is through a combination of the current favourable institutional arrangements that magnify the political power of the rural vote, and suppressing the vote of Black, Latino, and other minority populations that happen to largely vote for the Democrats.

The Supreme Court has always been political, and it has always lagged behind the center of gravity of public opinion in any given time. But to quote Tushnet here, things have, I think, gone south:

There are some facts about the Court today that suggest to Democrats that something has gotten out of hand. Despite the fact that Democrats have won the presidency about as often as Republicans, the last time there was a chief justice nominated by a Democratic president was in 1953, and the last time a majority of the Court’s justices were nominated by a Democratic president was in 1969. The fact that Supreme Court seats open up either randomly or, more troublingly, because sitting justices time their retirements so that “their” party can replace them has led some Democrats to believe that the traditional alignment between the overall political system and the Court—when looked at over a decent (say 10-year) period—has come unstuck, and that they should consider whether or how to reestablish that alignment.

“Gotten out of hand” is right. The first 11 confirmed appointments to the Supreme Court in my lifetime were all made by Republican presidents. My total confirmed scorecard is R-15, D-4. All appointments, including rejected, withdrawn, or the new category of “lapsed” is R-20, D-7. Admittedly, the timing is somewhat bad, as I’ve experienced only 20 years and nine months of Democratic administrations in my over 52 years, or maybe that the first appointment to SCOTUS during my lifetime was the attempted last minute elevation of Abe Fortas to Chief Justice should have taught me to not get too attached to the politics of the institution, but still.

Lemieux is correct, of course, that politics is an iterated game, and this goes both ways. Any move the Democrats make, if they have a window, likely would be matched, as the Republicans are far more ruthless. From the fivethirtyeight link above:

However, if Democrats pursued such a course, Stewart says it might encourage Republicans to attempt countermeasures. He points out that Republicans in the 1880s pushed to split the Dakota Territory in two rather than bring it in as one state. “The next time the GOP controls everything, why not pass a law for Texas to split into five states?” Stewart asks. “Where does this end? That’s really the question, how partisan and how nasty are people willing to get.” If Democrats overcome the obstacles and get statehood for D.C. and Puerto Rico, we might find out.

Where will it end? Who knows. But, in my mind, the game Democrats think they are playing has been superseded by the rules the Republicans have written, so at the very least Democrats should be playing the game by those rules.