The fight for democracy is bigger then HR-1

The fight for democracy is bigger then HR-1

Political equality and the defense of the republic need something more

Matthew Yglesias

 Jun 10 

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(Tasos Katopodis/Getty Images)

A bunch of different things are colliding in the discourse recently in a way that I think is generating confusion, and I’d like to try to unpack them.

Basically you have:

Republicans advancing many state-level bills that make it harder to vote.

The Republican Party as a whole embracing the “big lie” narrative that the 2020 election was stolen.

Republicans advancing some state-level bills that would make it easier for partisan elected officials to mess with vote counting.

Democrats pushing the HR-1 political reform package that already passed the House and the Senate.

Democrats also teeing up a different bill, HR-4, that’s basically a Voting Rights Act reauthorization in the House.

Bills can’t pass the Senate because of the filibuster.

Under pressure to break the filibuster to pass HR-1, Joe Manchin says that he actually no longer supports the bill and thinks political reform should be bipartisan.

If you jam these occurrences together, you can craft a narrative in your head that’s like “Republicans have abandoned democracy in favor of insurrectionism, and Joe Manchin’s hangup about bipartisanship is preventing Democrats from fixing the problem — historians may look back on the collapse of American democracy and see Manchin’s paralysis in June 2021 as a decisive moment.”

I think that’s basically wrong.

The filibuster should be scrapped, but that’s what I’ve been saying since 2005 and not a specific response to the current situation. HR-1 is largely a campaign finance bill that has nothing whatsoever to do with either ballot access restrictions or vote counting shenanigans. It contains anti-gerrymandering provisions that I think are important, but the provisions it includes aren’t perfect. HR-4, which does address ballot access issues, isn’t dead yet, though for it to live, the filibuster would have to die, and it could be improved with the inclusion of anti-gerrymandering provisions — ideally, better ones than are in the current HR-1.

But while I oppose GOP ballot access changes — we should pass laws to make people’s lives better, not worse, and that means making voting more convenient, not less convenient — I don’t believe there is persuasive evidence that this kind of “vote suppression” is all that electorally meaningful. So even the joint failure of HR-4 and HR-1 hardly dooms American democracy. What threatens American democracy instead is that the status quo American political system is highly undemocratic, and also that Republicans have the means at their disposal to do what Trump wanted them to do last time around and simply disregard the electoral outcomes.

A comparative view on American democracy

For whatever reason, Americans tend to think about and debate our political institutions in historical terms. So some people will say the filibuster is a noble Senate tradition while others characterize it as a Jim Crow relic. Some will deride the Electoral College as an anachronism while others laud it as a foundational principle of the republic.

This way of thinking is even institutionalized in the academy, where American Politics is a subfield of political science and Comparative Politics is a different subfield.

But over the winter, I read a fantastic book called “A Different Democracy: American Government in a 31-Country Perspective” by Steven Taylor, Matthew Shugart, Arend Lijphart, and Bernard Grofman that situates the United States in a comparative framework. It’s a very enlightening way to look at things, and it brings home not only that America is an outlier in important respects, but also that it’s important to look at our institutions holistically.

Consider the Supreme Court. When I wrote “The Biggest Threat to Democracy is that it Doesn’t Exist,” one common reply was something along the lines of “well I don’t see liberals complaining about the undemocratic Supreme Court when it rules their way, so what’s the big deal about the Senate.”

On one level yes, obviously, liberals praise liberal Supreme Court rulings and conservatives praise conservative ones. But the whole idea of the Supreme Court as distinctly undemocratic is problematic because of the way other American institutions work. When the Court handed down the 2015 Obergefell v. Hodges ruling that created equal marriage rights for same-sex couples, that was popular. But even though it was popular, had the Court not stepped in, the fight for equality could have taken years longer. The American political system has an unusually large number of “veto points” — a separately elected House, Senate, and President who all need to concur to make a legislative change. On top of that unusually large number of veto points, the apportionment of the Senate is unusually unbalanced. And on top of that unusually large imbalance, the Senate operates with a very unusual supermajority requirement.

The upshot is that it’s harder to change a law in the United States than in France, much harder than in Germany, and much much harder than in Canada. So having a fourth institution swoop in and approve popular changes is not in any obvious way less democratic than freezing an unpopular status quo in place. I think something similar may happen soon on affirmative action in college admissions. This is a very unpopular practice that loses ballot initiatives by large margins, even in California. But enacting a federal ban through the tripartite and filibuster-ridden legislative process would be a very heavy lift. If it acts here, the Supreme Court will act to bring policy into line with public opinion in the face of an undemocratic set of legislative institutions.

But just as the veto-laden nature of the legislative process can vindicate the democratic legitimacy of the Supreme Court, it can also create an imbalanced relationship between courts and legislatures.

The judicial-legislative asymmetry

One noteworthy thing about Obergefell is that it was a somewhat unusual liberal win before an increasingly conservative Court.

But beyond the ideological balance on the Court, there’s an institutional mismatch in what a judicial process can actually do. It now seems like the courts will probably not deem the Affordable Care Act unconstitutional. But institutionally speaking, that is something they could accomplish if five justices wanted to. By contrast, you could put nine Bernie Sanders clones on the Supreme Court and they still couldn’t create a Medicare for All system. Progressives generally favor creating programs and institutions that do things, and the courts don’t do that. Favorable judicial rulings can’t fight child poverty or give people electric cars or feed the hungry.

And what Democrats have backed themselves into, filibuster wise, is a situation where anything they want to do affirmatively requires 60 votes, but it can all be undone by justices who are confirmed with only 50 votes. That’s just stupid, and Democrats shouldn’t accept it. That’s not because of 1/6 or “the threat to democracy” or because HR-1 is so amazing. It’s just basic thinking about how institutions work.

This is a little eccentric of me, but I was actually heartened that Manchin came out as against HR-1. In the last Congress, he was signed on as a cosponsor. But at the same time, he insisted that he would never vote to curb the filibuster. So in effect, he was ensuring that HR-1 could never pass while hiding behind a procedural gimmick. His changing of his position to say that he actually doesn’t support the law is a step forward. Manchin ought to back ending the filibuster. That doesn’t mean he then has to go vote for progressives’ bills — he can just vote no! But then he could get the 1/6 commission created. He could sit down with Pat Toomey and bring back their bipartisan background check bill.

Scrapping the filibuster isn’t about letting the left roll the center. It’s about reclaiming the legislative branch’s central role in the process by ensuring that things members of Congress want to do actually get done.

The problem of the Senate

It’s pretty normal for large countries to have federal constitutional systems that include bicameralism — i.e., something like the Senate where representation is based on the federal sub-units and therefore unequal.

But America is on the high side in terms of how unequal the representation gets as a result. Argentina is the true outlier here, but the Senate is more disproportionate than any European country.

Where things get really weird, though, is that in America, the upper house is not only unusually disproportionate; it’s more powerful than the lower house because of its critical role in the confirmation process.

The way that the Senate’s disproportionality plays out is also eccentric. In Germany, small states are overrepresented in the Bundesrat. But “small states” doesn’t mean “rural states.” The smallest German state, Bremen, is a city-state. But the reason it’s so small is that Bremen is only the eleventh largest city in Germany. The second smallest state — Saarland — has no big cities, but it’s actually one of Germany’s densest states. But there are also some rural and low-density (by German standards) small states like Mecklenburg-Vorpommern. It’s fair to say that the German states are a bunch of wacky historical accidents with no rhyme or reason, but they genuinely are wacky historical accidents with no rhyme or reason; they don’t create a systematic bias the way the U.S. Senate does in favor of rural, predominantly white people.

Brazil, similarly, is even more disproportionate than the United States. But because Brasilia is a city-state, it doesn’t have the U.S.-style extreme anti-urban skew.

When we talk about D.C. statehood we, as usual in American, tend to debate it in terms of history or alignment with the Founders’ vision. But of course, the Founders didn’t have any particular view on whether it was acceptable to have a massive anti-urban skew in the Senate, because the population was so rural in 1790 that all states were rural states. D.C. statehood would bring the United States into closer alignment with other federal systems, which accept disproportionality but try to have a mix of urban and rural among the overrepresented states. The fact that our Senate is unusually powerful means we should be unusually attentive to the fairness problems with bicameral legislatures, not unusually dismissive of them.

“Bipartisanship” is a weird idea

The United States emerged from World War II with a party system that wasn’t really organized along ideological lines.

Under those circumstances, it was an entirely appropriate heuristic to view strictly partisan legislation as somewhat suspect. If a bill couldn’t garner meaningful cross-party support, that suggested it was neither a liberal nor a conservative measure but some kind of unprincipled power grab or shady scheme. In particular, an idea developed that questions related to national security and the standoff against the Soviet Union were, in some sense, too important to be left up to the grubby patronage-wrangling of partisan politics. A bipartisan initiative meant an initiative with integrity, purpose, and staying power.

This doesn’t apply to the contemporary party system, which is ideological and well-sorted. Today, bipartisanship is an American way of saying centrist governance.

That’s an idea that exists in lots of countries, but it’s normally implemented by having multiple parties. So today in Canada, Justin Trudeau leads a minority government. To pass a bill, he needs support either from the Conservative Party to his right or the New Democratic Party to his left. Or in a pinch, maybe he can work something out with the Quebec separatists. Norway’s parliament has a ton of parties in it, and Erna Stolberg leads a three-party coalition minority government. To pass a law, she can seek support from the Progress Party to her right, or the Labour Party to her left, or the agrarian-oriented Center Party. In Germany, Angela Merkel has a majority government, but it’s a grand coalition between her center-right party and the Social Democrats. There is opposition on the right and on the left.

The normal centrist governance style, in other words, is to actually have the agenda-setting agent occupy the center ground. In America, that doesn’t work because there are only two parties. And in non-proportional systems, most seats are safe. So the leadership of both parties is dependent on the support of packs of backbenchers who don’t face competitive elections. And then people who want centrist outcomes hope the leaders will collaborate. The desired outcomes are perfectly reasonable, but the institutional mechanism for getting them is awfully awkward.

Beyond the law

This has all strayed pretty far from the core concern that Republicans will seek to subvert the 2024 election.

But I think that’s because there really isn’t a legislative fix here. The Senate can eliminate the filibuster. The Senate can add new states. Congress could and should (but won’t) adopt different electoral rules that would encourage the growth of more political parties and stepping back from the dangerous precipice of political polarization. Congress can make it easier rather than harder to vote.

At the end of the day, though, the Constitution was written by people who didn’t believe in democracy the way we understand it today. Trump happens to have grounded his effort to get state officials to overturn the election in bogus fraud claims. But there’s no constitutional requirement that state governments conduct elections at all. What the constitution says is that “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress.”

Now obviously it would be a huge breach of democratic norms for the heavily gerrymandered state legislatures in the swing states to just cancel elections and allocate their votes to Trump.

The first election I voted in was in 2000. People forget this now, but the week before Election Day, it was thought that Gore might prevail in the Electoral College even while Bush won the popular vote. And the discussion at the time was that Republicans would challenge the legitimacy of such a result.

So what if Gore wins such crucial battleground states as Florida, Michigan and Pennsylvania and thus captures the magic 270 electoral votes while Bush wins the overall nationwide popular vote? “The one thing we don't do is roll over,” says a Bush aide. “We fight.”

How? The core of the emerging Bush strategy assumes a popular uprising, stoked by the Bushies themselves, of course. In league with the campaign — which is preparing talking points about the Electoral College's essential unfairness — a massive talk-radio operation would be encouraged. “We'd have ads, too,” says a Bush aide, “and I think you can count on the media to fuel the thing big-time. Even papers that supported Gore might turn against him because the will of the people will have been thwarted.”

Local business leaders will be urged to lobby their customers, the clergy will be asked to speak up for the popular will and Team Bush will enlist as many Democrats as possible to scream as loud as they can. “You think ‘Democrats for Democracy’ would be a catchy term for them?”

The results turned out the other way. But because of Florida ballot-counting shenanigans, Gore wound up choosing to fight the election in court rather than the kind of extra-constitutional campaign that the Bush team had been contemplating. So when the judicial rulings came down in Bush’s favor, Gore folded. And we’re now, I think, in an unstable equilibrium. We don’t have a norm that the candidate with the most votes should be the winner. But we do have a norm that legislatures shouldn’t monkey with state-level voting, even though they are constitutionally allowed to. Will that really hold up?

Ultimately, the only real cure for election theft is what I think we’ve seen in a number of countries around the world when it happens — mass mobilization and protest. There are tons of things that Congress can do to improve the American political system. But people shouldn’t kid themselves that Nancy Pelosi and Joe Manchin can stop the total trampling of the electorate. The option for doing it was right there in the Bush plan from 2000.

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