Thank Goodness for Mitch McConnell

After the events of this week, we are most likely headed toward a constitutional crisis. That’s a good thing.

The death of RBG is a tragedy. While I didn’t always agree with her jurisprudence, she was perhaps the last justice on the Supreme Court regarded with near-universal respect. She anchored the institution with a sense of gravitas and non-partisan expertise. And now Mitch McConnell and company have lobbed a hand grenade at Supreme Court legitimacy through a highly partisan, controversial, and rushed appointment. People are justifiably outraged. Hopefully that outrage will drive real change.

Here’s how things stood one week ago: The Democrats were heading toward a small-scale electoral victory. Despite an unusually vigorous and multivocal primary process, the Dems had settled on their most moderate and least ambitious candidate. Biden had chosen a campaign strategy very similar to Hillary Clinton’s: No tentpole policy proposal, just keep your head down, give Trump enough rope, and run as the normalcy candidate. This looked likely to win (and still does) because of a weak economy and a raging pandemic that Trump is at least partly responsible for. Meanwhile in the House, Pelosi had signaled hostility to both Medicare for All and the Green New Deal, and despite having promised a short stint as speaker, it did not look like she was in any way preparing to step down, nor like she was jonesing to propose a vast suite of structural reform. The prospect for meaningful change was even more dismal in the Senate, with the likelihood of a Democratic majority in doubt, and with most prominent Democrats quietly signaling that filibuster reform was dead in the water. In summation, the Democrats were almost all running a very simple campaign: don’t be Trump. That was, more or less, all they were promising. And the Democratic electorate, by nominating Biden, endorsed that position.

The allure of normalcy is very strong. (A brief aside: the word normalcy as used today is actually a political invention. It was the creation of the Warren G. Harding presidential campaign in 1920 to describe recovering from WWI. The Harding/Coolidge administration normalled us straight into the Great Depression and the rise of fascism, so learn from that what you will.) Obama is remembered with great fondness by the vast majority of Democratic voters. Perhaps even more alluring is most people’s memory of the 90s, before our politics were so nakedly partisan and so bitterly alienating. It’s a charming mirage. But even if your dearest political ambition is to return to a time when you didn’t have to think about politics on a weekly basis and could still get along with your crazy uncle, you need to have an active political vision on how to get there. Democratic voters, by and large, don’t seem to realize that yet.

Our republic is failing. I don’t mean that we are likely to descend into tyranny or secession (though the odds on both of those are going up). I mean that our government has demonstrated an inability to handle crisis. As long as we remain in this state, we are vulnerable to problems that could be ameliorated through politics. They might be environmental or economic (likely) or they might be political or diplomatic (less likely), but suffering that could be alleviated through political action is now guaranteed to proliferate (see: COVID and our anemic response). Eventually that suffering will add up to true collapse, although that still seems distant. In the meantime, however, political anger will continue to mount. The good news is that the process of democratic failure is slow and we still have time to address it. The bad news is that, like the frog in boiling water, most of us don’t seem to recognize what is happening.

A History of Democratic Failure Told in Three Branches

2016 was a very important year for politics in the United States. First came the Garland nomination for the Supreme Court. I’m sure you’re tired of this being litigated again and again, but bear with me. McConnell articulated a new norm while he refused to hold a vote, namely that Supreme Court vacancies during election years would be held open until after the new Senate/president had been seated. In some ways, this was a good new norm; the Supreme Court was the least democratic branch of government, and letting people feel like they had a say in its composition would increase its legitimacy in the eyes of the people. Of course, canny observers (and many commentators) immediately understood that McConnell had enacted a very different norm. In reality he had shown that no new Supreme Court justices were going to be seated while the presidency and the Senate were held by different parties. Obviously no party was going to purposefully gimp themselves when they held the presidency and the Senate by refusing to nominate a justice. Why would they? There was no constitutional amendment in place, nor even a new law. Just some words a Senate majority leader said once while he did whatever he pleased. It wasn’t binding, even in the flimsiest sense, and of course McConnell reversed himself as soon as the shoe was on the other foot. Everyone paying attention knew he would. So why was it so important that he articulate some thin excuse while he nakedly pursued power? To answer that we must turn to another political failure of 2016.

2016 was a banner year for Senate Republicans. While on paper Democrats gained two seats (New Hampshire and Illinois), vulnerable Republicans across the map pulled through and won. Florida, Wisconsin, Pennsylvania, Ohio, and North Carolina all re-elected Republicans well to the right of the states’ political makeup. This was somewhat surprising, although it got lost in noise that was the presidential campaign. After all, Obama had ended his administration as a historically popular president, and Mitch McConnell polled as one of the least popular politicians on the national stage. Voters hadn’t repudiated McConnell’s power grab, in part because he insulated other Republicans from having to vote on Garland at all, and in part because he gave a flimsy, but calming, excuse. Looking back on it, 2016 was the last time moderates had a viable path to restoring bipartisanship to national politics, and it wouldn’t have even required not electing Trump. If Trump had to get his nominee through a Democratic Senate, he would have been forced to pick a moderate, and a process of de-escalation, at least in the judiciary, would have begun.

And of course 2016 had a presidential election, but there is nothing new to say about that whole debacle. Here’s where things stand in 2020 structurally for the Dems to win control of the government: Due to the electoral college, Dems will have to win the presidential popular vote by something like 2 or 3 percentage points. Due to gerrymandering, they’ll have to win the house by 4 percentage points. Due to rural states having outsized influence, they’ll have to win the senate by 6 or 7 percentage points over the course of three separate election cycles (numbers courtesy of FiveThirtyEight via Vox). And of course they have no viable way to secure the judicial branch no matter what happens electorally.

So What?

For most of America’s history, it has only been mildly small-d democratic. The Voting Rights Act wasn’t enacted until 1965. And the Senate has always had the rural tilt it has now. (The population difference between, say, New York and Wyoming has only been growing though.) The structural crisis we are hitting now is only partially a result of foiled democratic will. The heart of the problem is a deeply felt and acrimonious partisanship. American politics hasn’t been so bitter since at least the Vietnam War era, and a lot of people are tired and scared. The how and why of the partisanship is a long and complicated story, involving the internet, incompetent politicians, and a growing socioeconomic divide. That is neither here nor there, however. The real question is what can be done about it.

There are two ways out of partisanship, and at the risk of oversimplifying a complicated and nuanced ideological divide, the two wings of the Democrats, leftists and centrists, represent the two different approaches. The left wing of the Democrats understands the problem as primarily a social one: the only way out of partisanship is a complete and utter domination at the ballot box, and the only way to do that is to have a widespread increase of class consciousness and a social revolution. It’s an appealing narrative for leftists, who look at the communities wracked by globalist capitalism and think they see political allies. Speaking as a leftist, I hope they are eventually successful. But the cultural divide has so far precluded widespread rural socialism, and the progressives running in rural polities have so far had disappointing turns at the ballot box.

Structural Problems

Centrists, on the other hand, have a much more straightforward path to de-escalation of partisanship: moderation. The problem is that moderates face several structural problems when it comes to actually governing at the federal level. Three big ones stand out: a lack of democratic responsiveness, the Hastert Rule, and the filibuster. Moderation still poll incredibly well as an idea for Americans, who like the idea of working across the aisle, at least in theory. But the Republican political advantage baked into our federal government is not just a problem for Democrats; it has profoundly affected the Republicans too. The center-right has all but disappeared as a force in the national government because the Republicans don’t need it to secure control. The gerrymanders (purposeful in the House, inherited in the Senate and presidency) mean that a large majority of Republicans enjoy very safe seats. Thus, the liability for incumbents lies in primary challengers, not in general elections. Republican lawmakers are then incentivized to push political actions that are more appealing to their base than to their state population generally. Moderation suffers as a result.

The Hastert Rule (named after former Speaker of the House and actual convicted child molester Dennis Hastert, for the conspiracy-minded among you) is simple: the Speaker of the House will never bring to a vote any issue that the majority of their party doesn’t support. To be accurate, it is a procedural guideline, not a rule, but one that Paul Ryan (and John Boehner before him) seemed happy to follow. The Hastert Rule makes bipartisan legislation functionally impossible. Paul Ryan famously used it in 2015 to kill all immigration legislation, realizing that the moderate Republicans and Democrats had enough votes to pass reform but that the majority of his party opposed it. Ryan refused to bring the bill to a vote, shielding the right wing of his party from an unpopular public stance while still achieving their policy goals. Centrists should have been outraged; their moment to shine on a contentious public issue had been snatched away from them. Instead it was met with an institutional shrug.

On paper, the filibuster is a centrist’s dream structure. It makes sure that only laws that appeal to a large majority of the Senate ever pass. Once upon a time, that meant deliberative consensus. (Before we wax too poetic, that deliberation often led to stopping desegregation efforts.) Now, in a more hyper-partisan context, it means gridlock. Gridlock can favor centrism too: if both parties are being run by their more extreme wing, it can give centrists the veto, and the filibuster has enjoyed support among centrist politicians for exactly that reason. But over time, gridlock has had an unusual political repercussion: it has allowed senators to adopt increasingly partisan and inflammatory positions without having to actually support any legislation. Anyone who has spent any time really listening to U.S. senators realizes that they spend much more energy painting their political opponents as monstrous than they do actually writing new laws. This is the price of the filibuster. Legislating is hard, posturing is easy.

What to Do

It seems that these problems all have relatively easy solutions. Moderates, especially moderate Democrats, can embark on a series of relatively modest reforms: abolish the filibuster, push for DC and Puerto Rican statehood, weaken the power of the speaker and the majority leader to control the legislative agenda, pass federal laws restricting gerrymandering, etc. The upside is that all those reforms are broadly popular and just. The downside is that most of those reforms can be painted as something of a power grab because, well, that is what they are. But all of this is tiptoeing around an uncomfortable fact, namely that despite being electorally popular and being represented by a large slice of Democratic politicians, American centrism has been sclerotic for a long time. In particular, center-left politicians have been terrified of being painted as radical. And thus the extremely unambitious electoral strategy that Democrats have adopted this election cycle.

Enter Mitch McConnell. His naked will to power, coupled with the conservative media painting Biden as being controlled by radicals, despite him being, you know, Joe Biden, should be a wake-up call to moderates. Though they have proven to be more comfortable with inaction, they really must pursue structural reform or else risk being drowned in the rising tide of partisanship. Centrism actually needs an ambitious agenda if it wants to preserve its path to power, but as an ideology it is marked by its deep desire to just be the normal, and not have to assert itself. I’m not holding my breath, but maybe this will be the impetus for moderate Democrats to realize they have to actually reform things if they want their politics to move forward. As it stood before the death of RBG, they might have won a narrow majority for two years, until Americans remember how much mainstream Democrats actually suck at passing legislation. Then the usual pendulum swing that has come to characterize American politics means the Republicans win in 2022. And that was the best case scenario; our vulnerabilities to crises will still persist, and we will continue down the path of state failure.

And that is not even touching the suppurating wound on our republic that is the Supreme Court. Its perceived legitimacy will be badly shaken on the left with McConnell’s appointment. People are already talking court-packing, but that is a political pipe dream. Jon Tester and Joe Manchin would be signing their political death warrant, and that’s not even counting the Kyrsten Sinemas and Doug Joneses of the caucus, who pride themselves on their moderation. Instead the popular and correct remedy would be to introduce term limits to the Supreme Court. It would give the Republicans their majority for a while but would also guarantee a more orderly transfer of power, and have the upside of eliminating the ghoulish political wrangling that now accompanies the death of a justice. Unfortunately, this would require a constitutional amendment, so it’s impossible. All alarms should be blaring on our federal judiciary, which has radicalized much faster than any other branch of government and has a much more tenuous path back to representing the average American. Instead, Americans have been largely ignoring the most dictatorial and least responsible political institution except when it comes to abortion. Hopefully this week will precipitate widespread judicial reform. Again, I’m not hopeful, but Mitch McConnell has accelerated the rolling disaster and brought the issue into focus for more Americans. Maybe he spiked the heat enough that the boiling frog will finally jump. So thanks, I guess.