Every Democrat who fears filibuster reform should read these two new works

Every Democrat who fears filibuster reform should read these two new works

Opinion by 

Greg Sargent

Columnist

March 23, 2021 at 11:48 p.m. GMT+9

In a way, it’s fitting that Democrats are celebrating the 11th anniversary of the Affordable Care Act even as they are intensely debating major structural reforms, such as ending the legislative filibuster and granting statehood to Washington, D.C.

That’s because these things are deeply related to one another — in ways that highlight the profound possibilities of this moment, but also the danger that those possibilities will slip away.

Two new works help us make sense of this time of extraordinary ferment: A new book on the creation of the ACA, and a new academic paper that clarifies the structural disadvantages that Democrats and progressives face in our current system.

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The ACA — which former president Barack Obama signed 11 years ago Tuesday — is a story of major progressive change achieved through extraordinary hard work but also limited by the very structural impediments that Democrats are debating right now.

The lessons of the ACA

Journalist Jonathan Cohn’s new history of the ACA’s passage tells that tale. Because Democrats initially needed 60 Senate votes for the bill in 2009, they repeatedly compromised it down to hold the support of conservative Democrats.

As Cohn recounts, they kept its spending below $1 trillion, a sum that moderate-minded political strategists arbitrarily decided would be easier to defend but fell well short of the coverage expansion many reformers hoped for. And they killed the public option — the option to purchase government-run insurance — to hold a key conservative Democrat.

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The pandemic stripped bare the human consequences of those failures. The provision in President Biden’s economic rescue package that beefed up health insurance subsidies helped compensate for the initial bill’s inadequate spending. Democrats are now working to figure out how to add a public option.

But during the pandemic, large numbers of people likely remained uninsured amid a public health crisis, in part because of those shortcomings.

“We still have millions of people walking around without insurance,” Cohn said. “The pandemic was a reminder that we still have huge gaps in our health care system, with immense human consequences.”

Those are in part the result of the filibuster. “Most of the ACA’s inadequacies trace back directly to compromises Obama and Democratic leaders made because they had to get 60 votes,” Cohn told me.

The GOP’s ‘preferred constitutional position’

Eleven years after that bill’s passage in the aftermath of a major crisis, Democrats are thinking more seriously about how structural factors could impede a sufficient national response to an even deeper one.

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As such, every Democrat entertaining those debates should also read this new paper on “structural biases” in constitutional design by law professors Jonathan S. Gould and David E. Pozen.

In it, Gould and Pozen craft a new understanding of how structural constitutional factors can bias governmental outcomes and the rules of political competition against one reigning governing ideology and party in a systematic way.

They analyze many aspects of the constitutional order through two lenses: First, whether they tend to frustrate policy outcomes with broad popular support. Second, whether they tend to produce electoral outcomes that systematically allow one party to outperform its support levels.

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Their findings are stark. They find that the multiple veto points in the legislative process — the supermajority needed against the filibuster, the need for supermajorities to override presidential vetoes, congressional rules empowering committees to kill legislation, etc. — systematically work against Democrats, because they generally harbor more legislative ambition.

“Veto points that increase the difficulty of enacting legislation,” they note, “have come to impede the policy aspirations of Democrats more than those of Republicans.”

They detect a similar electoral bias. Two senators representing each state regardless of population advantages the party that overperforms in small states, as does (to a lesser extent) the electoral college.

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What’s more, the reliance on single-member congressional districts (created by federal law) benefits the party that overperforms in sparsely populated areas and works against the party that wastes more votes in concentrated ones.

In some cases, a shift in the party’s coalitions could undo those biases. But for now, the authors conclude, our “intersection of constitutional design and political geography” has produced systematic structural biases for the party that is “strongest in small states,” the GOP.

Their overall conclusion: The Republican Party benefits from so many such structural biases that it currently “occupies a preferred constitutional position.”

Don’t fear big reforms

The big idea here is that these deep disadvantages help explain why Democrats are gravitating more toward big structural reforms. And, importantly, this is not something that is particularly out of the ordinary.

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As they recount, battles to shape constitutional structures expressly to bias them toward one party or governing ideology have been constant in our history. At the founding, large congressional districts were seen to benefit large property owners. And as Heather Cox Richardson notes, battles over terms of admission for new states often were influenced by larger partisan and ideological conflicts.

All this is to say that if Democrats were to reform or eliminate the filibuster and grant D.C. residents congressional representation — which has obvious substantive justifications but might also add two Democratic senators — it wouldn’t even represent a dramatic skewing of the system toward Democrats, relative to the status quo.

“You have to start debiasing the system somewhere,” Pozen told me. “What might look like a radical reform in isolation would in fact be modest, relative to the overall bias baked into the system against progressive agendas and for conservative priorities.”

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We have to grow more comfortable with the idea that our constitutional structures have often been the site of intense contestation driven in part by partisan and ideological motivations.

As these two works demonstrate, skittishness about this notion is at odds both with our history and current structural and policy realities staring us all in the face.

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