The Rigging of American Politics

“Because everything is collapsed down to just partisanship, the main question is: Do Democrats have fair rules of representation? And they don’t,” says Mason. “That’s just the unavoidable answer to that question. But then do we rewrite our system of government?”

To do nothing, however, is to court a different kind of disaster. GovTrack notes that the divergence between the percentage of senators voting yes on important roll call votes and the percentage of the population they represent has spiked to record levels — a reflection of both the Senate’s composition and the hardball tactics Republicans are using to pass policy. The gap could explode from here. By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.

It is not difficult to imagine an America where Republicans consistently win the presidency despite rarely winning the popular vote, where they control both the House and the Senate despite rarely winning more votes than the Democrats, where their dominance of the Supreme Court is unquestioned, and where all this power is used to buttress a system of partisan gerrymandering and pro-corporate campaign finance laws and strict voter ID requirements and anti-union legislation that further weakens Democrats’ electoral performance.

If this seems outlandish, well, it simply describes the world we live in now, and assumes it continues forward. Look at North Carolina, where Republican legislators are trying to change the state Constitution to gain power over both elections and courts. Look at Wisconsin, where state Republicans gerrymandered the seats to make Democratic control a near impossibility. Look at Citizens United, which research finds gave Republicans a 5 percentage point boost in elections for state legislators. Look at Georgia, where the GOP candidate for governor currently serves as secretary of state and is executing a voter purge designed to help him win office.

How long will a Democratic coalition that has more numbers but less political power accept this system? And what will happen when they fight back?

If Democrats win power, should they rewrite the rules?

In his book It’s Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics, political scientist David Faris argues that Democrats worrying about their programs and their campaign strategies are missing the point. “You cannot win, in the long term, a policy or messaging fight on a playing field that is tilted hopelessly against you,” he writes.

Faris goes on to recommend a slew of ways Democrats can “fight dirty,” by which he means rewrite the rules of American politics so Democrats have an even chance, or better than that.

He recommends statehood for DC and Puerto Rico, as well as breaking up California into seven states, each with two senators; packing the Supreme Court with more justices so liberals can crack its conservative majority; replacing winner-take-all elections in the House with ranked-choice voting and expanding the size of the body to 870 members; passing a raft of voting rights reforms; and more.

“Some of the recommendations in this book will strike readers as so radical that they might precipitate a rupture of normal politics, or even a major constitutional crisis,” writes Faris. “Worrying about the damage these proposals might do is a genuinely adorable way to think about our politics, but it’s kind of like fretting about whether you should shoot the terrorist sitting next to you on your flight after he’s already blown a hole in the hull.”

Faris wasn’t always a radical. When I reached him at his home in Chicago, he described a process of radicalization that will sound familiar to many Democrats.

“The 2000 election was my coming-of-age election,” he says. “It was the year I graduated college.” Even so, he says he remained a “pragmatist.” The American political system was what it was. He voted for Hillary Clinton over Bernie Sanders in the Democratic primaries. And then the Electoral College took a second presidency away from the candidate he supported.

“It was so frustrating, in 2016, to go through another election we basically won but that we lost because of the way the mechanisms of American government translate election results into institutional outcomes,” he told me.

What was worse, he said, was thinking about the election after the Merrick Garland affair. Republicans had simply refused to consider President Barack Obama’s nominee to the Supreme Court. It was a stunning power grab. And it worked.

“Republicans weren’t punished for it,” Faris marvels. “They were rewarded for it. They got all three branches of government. It made me think Democrats can no longer act as if older rules about norms and expectations and comity in the political arena effect when they’re not.”

That’s what led him to write It’s Time To Fight Dirty. “The book was inspired by two things,” he says. “Total depression on election night and then thinking about what it would take for Democrats to recapture power given these structural obstacles.”

I’ve seen a lot of liberals go through roughly the evolution Faris went through. Court-packing, for instance, has become a common topic of discussion on the left. The rise of Michael Avenatti — with his slogan “when they go low, we hit harder” — is a reflection of the frustration Democrats feel. In his case for Avenatti’s 2020 candidacy, New York magazine’s Eric Levitz writes, “Avenatti’s presence in the 2020 race could spark a much-needed debate over whether his party should see the GOP’s ruthless approach to governance as a malignant force worth condemning — or as a model worth emulating the next time Democrats take power.”

Even Eric Holder, President Obama’s former attorney general, is taking up the battle cry. “When they go low, we kick ’em,” he says. “That’s what this new Democratic Party is about.”

This is where we are now. Imagine where we’ll be if four of the next five presidential elections are won by a Republican who lost the popular vote, if geography and gerrymandering locks Democrats out of anything but fleeting House majorities for the next 20 years and persistent Republican dominance in the Senate leads to a 7-2 conservative Supreme Court that tosses out Democratic laws and buttresses the GOP’s electoral advantages.

On the other hand, if Democrats take power and run some version of the Faris/Avenatti playbook in 2020 or 2024, there will be an equal and opposite reaction among Republicans; they will see their Supreme Court majority ripped from their grasp, their chances in House elections fall, Democratic Senate majorities as far as the eye can see. What will they do in response?

Indeed, the title of Faris’s book betrays the problem. While some of his reforms are clearly power grabs, like cutting California intro seven slices to rack up Senate majorities, most are simply ideas for improved governance. Proportional voting systems really are preferable to winner-take-all designs; DC and Puerto Rico should have congressional representation because it’s the right thing to do. That literally any change to the political system of a fast-changing country will be seen as a grubby scheme for partisan advantage creates a lock-in problem that imperils our future.


America’s political legitimacy crisis


In his book How Democratic Is the American Constitution?, the late political scientist Robert Dahl proposes a five-part test to judge how well the Constitution is working:

To what extent, if at all, do constitutional arrangements help to:

1. maintain the democratic system;

2. protect fundamental democratic rights;

3. ensure democratic fairness among citizens;

4. encourage the formation of a democratic consensus; and

5. provide a democratic government that is effective in solving problems?

I found this passage shocking when I first read it. It was not that Dahl’s criteria were so transcendent; it’s that he dared to propose criteria at all. As obvious as the exercise is, it is almost entirely absent from the Washington political conversation, which treats our political system as if it were etched on stone tablets and carried by George Washington down from Mount Sinai. We do not judge our constitution, we venerate it.

As a result, there’s little clarity on the principles we believe should undergird America’s political system. We explain elections using the language of democracy, but we are clearly not a democracy. We reach back to the Founding Fathers for succor, but the system we have is no longer the one they designed. Oftentimes, the governing principle we actually seem to be following is status quo bias — we do it this way because this is the way we do it, and to change the rules would be unfair — but that’s a rigid way to run a country, and it has left us in a dangerous place.

America is in an unstable equilibrium. Its current political system is producing outcomes that feel illegitimate to the left. Any effort to reform that system would produce outcomes that feel illegitimate to the right. We cannot stay here, but we cannot move.

What’s strange is that it’s not how we traditionally managed American politics, and it’s not how we run state politics. The US Constitution is devilishly difficult to amend, but even so, the pace of amendments is slowing as we move further from the date of ratification. There were 27 amendments before 1992, but there have been zero since then, and none appear on the horizon.

States, meanwhile, routinely amend and even rewrite their constitutions. “Each state has its own constitution, and the typical state has had three constitutions,” says Levinson. “A couple of them have had 10 or 11. There’ve been about 235 state constitutional conventions and zero new national conventions since 1787.”

It’s only at the national level, and only in this generation, that we have come to believe our political system should be frozen in amber, and puzzlingly, we have come to that conclusion not at a moment of confidence in its genius but at a moment of despair in its performance. I suspect our true belief is not that our system of governance is performing so well that it should be immune to change, but that we are performing so poorly that we do not trust ourselves to change it.

The political scientist Jennifer Victor keeps a stark missive pinned to the top of her Twitter account. “Remember: Democracy doesn’t mean majority rules. It means we all agree on the rules.” The problem right now is we don’t all agree the rules are fair, but the depth of that disagreement has made it impossible to imagine agreeing to other rules, either. And since we haven’t even tried to agree to the principles that are meant to guide our rules, every question, in every case, comes down to the raw exercise of power.

Perhaps the only way out of this mess is for the stakes to be raised, for Democrats to respond to Republican provocations and an increasingly tilted playing field by striking back and pushing the system to a breaking point. Perhaps then a compromise will come clear to both sides. But that’s a treacherous path to walk in a country that already feels near fracture.

“Legitimacy, at its heart, is the feeling that the authority being wielded over you is being wielded fairly and justly,” says Faris. It is that feeling of legitimacy that he and many other Democrats have lost. It is that feeling of legitimacy that their counterattack would rip from Republicans. This is the feeling that is draining out of the American political system, and as bad as it is now, it can, and likely will, get much, much worse.

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