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Home / Miles Kimball / Mehdi Hasan on the Many Ways Legislation Could Alter the Political Balance in Favor of the Democratic Party

Mehdi Hasan on the Many Ways Legislation Could Alter the Political Balance in Favor of the Democratic Party

Summary:
How democratic is the United States? According to a poll released by the bipartisan Democracy Project in June, a clear majority (55 per cent) of Americans consider US democracy to be “weak”, with two-thirds (68 per cent) saying it’s “getting weaker.” Half of Americans believe the nation is in “real danger of becoming a non-democratic, authoritarian country”. In February, the Economist Intelligence Unit (EIU) classed the United States as a “flawed democracy” for the second year in a row. The US ranked 21st in the EIU’s Democracy Index, behind 20 “full” democracies including Germany, Canada and the UK. “Popular trust in government, elected representatives, and political parties has fallen to extremely low levels in the US,” the EUI analysts wrote. “This has been a long-term trend and

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How democratic is the United States? According to a poll released by the bipartisan Democracy Project in June, a clear majority (55 per cent) of Americans consider US democracy to be “weak”, with two-thirds (68 per cent) saying it’s “getting weaker.” Half of Americans believe the nation is in “real danger of becoming a non-democratic, authoritarian country”.

In February, the Economist Intelligence Unit (EIU) classed the United States as a “flawed democracy” for the second year in a row. The US ranked 21st in the EIU’s Democracy Index, behind 20 “full” democracies including Germany, Canada and the UK.

“Popular trust in government, elected representatives, and political parties has fallen to extremely low levels in the US,” the EUI analysts wrote. “This has been a long-term trend and one that preceded the election of Mr Trump as the US president in November 2016.

Indeed it did. The sad truth is that Donald Trump is a symptom, not a cause, of the United States’ democratic dysfunction.

Consider his own election victory: Trump secured the presidency in November 2016 despite winning three million fewer votes than Hillary Clinton. Turnout stood at a miserable 55.7 per cent; more Americans stayed at home than voted for Trump and Clinton combined.

Consider the president’s latest appointment to the Supreme Court: the scandal-plagued Brett Kavanaugh was confirmed by the Senate, in a 50-48 vote, earlier this month – the narrowest confirmation vote since 1881. Not only did a majority of Americans oppose his appointment, but the 50 senators who put him there represent states covering just 44 per cent of the US population.

Consider the Senate itself: each state is guaranteed two senators, regardless of their size. Yet, given current demographic trends, by 2040, according to calculations by Baruch College political scientist David Birdsell, “70 per cent of Americans are expected to live in the 15 largest states … That means that the 70 per cent of Americans get all of 30 Senators and 30 per cent of Americans get 70 Senators”.

Consider also the upcoming midterm elections, on 6 November, described by former White House strategist Steve Bannon, no less, as “a referendum on the Trump presidency.” Thanks to Republican gerrymandering, reports the Washington Post, “some independent analysts think Democrats will need to win the popular vote by seven to 11 percentage points just to get a bare majority” in the House of Representatives. In 2016, Republicans managed to secure 55 per cent of the seats in the House with less than 50 per cent of the vote.

Minority rule, therefore, is the order of the day. Despite winning fewer and fewer votes, Republicans have amassed more and more political power across the various branches of the US government.

For how long should Democrats tolerate this fundamentally undemocratic, and anti-democratic, state of affairs? In November, they could win back control of the House, and maybe even the Senate too, in an anti-Trump “blue wave”. Would that provide a long-overdue opportunity – perhaps bolstered by a Democrat in the White House come 2021 – to address this broken democratic system in the United States? To slowly restore faith in the nation’s elections and institutions?

If a backswing brings us a Democratic government with a mandate for reform, here are eight simple steps they could take to try and fix, reform and improve our “flawed” democracy.

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1) Abolish the electoral college

“The electoral college is a disaster for a democracy.” So said Donald Trump on election night in 2012, when it looked for a brief moment as if Mitt Romney might win the popular vote against Barack Obama. Today, of course, Trump sits in the Oval Office as a result of that very same electoral college – which, unbeknownst to many Americans, was created to boost the political power of slave-owning southern states.

Since the start of this century, the United States has elected two Republican presidents – Trump and George W Bush – who lost the national popular vote but won the majority of electoral college votes. How so? The electoral college elevates smaller, rural Republican states at the expense of bigger, more urban Democratic states. Compare California to Wyoming: the former has one electoral vote per 712,000 people, while the latter has one per 195,000 people. That means a vote in Wyoming has 3.6 times the impact in the electoral college as a vote in California.

The core of democracy is supposed to be the principle of one person, one vote, but the electoral college makes a mockery of that principle. And guess what? Most Americans agree. In June, a PRRI poll found that two-thirds (68 per cent) of Americans would prefer electing their presidents on the basis of the national popular vote, as opposed to the electoral college.

Abolishing the electoral college won’t be easy. It would need a constitutional amendment, which itself requires a two-thirds vote in both the House and the Senate and the ratification of three-quarters (38) of the 50 states.

There is, however, an alternative to outright abolition. The National Popular Vote Interstate Compact (NPVIC) is an agreement between a growing number of US states to pool their electoral college votes for the presidential candidate who wins the popular vote. The agreement is supposed to take effect once the participating states represent at least 270 electoral votes, the minimum number required to elect a president. As of October 2018, the NPVIC had been adopted by 11 states which, between them, have 172 electoral votes or 32 per cent of the total Electoral College.

2) Pass a new Voting Rights Act

Turnout in the United States is abysmally low by international standards – according to a Pew study in May 2018, the US came 26th out of 32 OECD countries. But Republicans are bent on reducing it even further. Voter suppression has become an integral part of the GOP’s election strategy at the federal and state levels. Take Georgia, where Republican gubernatorial candidate Brian Kemp – who, as secretary of state, also doubles as Georgia’s top election official – is trying to block 53,000 people from registering to vote, nearly 70 per cent of whom are black. His Democratic opponent, Stacey Abrams, is black.

In 2013, conservatives on the Supreme Court gutted a key section of the landmark 1965 Voting Rights Act which had required state and local governments in areas with a history of racial discrimination to obtain federal “preclearance” before making any changes to their voting laws. The Democrats, if they retake the House and the Senate, should immediately pass a new, beefed-up Voting Rights Act, which would:

Prohibit racist voter ID laws at the state level. Over the past decade, more than a dozen Republican-led states have introduced restrictive voter ID laws. Their justification? To combat (mythical) voter fraud. The reality? A 2017 academic study found “a significant drop in minority participation when and where these laws are implemented”.

Mandate that every state automatically register every voter. Thirteen states plus the District of Columbia have already approved automatic voter registration (AVR). In 2016, after Oregon introduced AVR, the state’s turnout increased by 4 per cent compared to the 2012 elections.

- Restore the right to vote to ex-felons. In the swing state of Florida, more than one in ten people of voting age – and a whopping one in five black adults! – are barred from voting due to a felony conviction. In total, and nationwide, around six million Americans with a felony conviction are currently disenfranchised – some of them for life. As the Sentencing Project points out: “We know of no other democracy besides the United States in which convicted offenders who have served their sentences are nonetheless disenfranchised for life.”

Make election day a federal holiday. Countries such as Germany, France, Spain, Brazil and India either vote at the weekend or recognize election day as a public holiday. One recent study found that “creating a national holiday for election day would increase voter turnout by about 16 percentage points” and cause “voter turnout in the US to be consistent with other developed democracies.”

3) Ban gerrymandering

Is there anything more brazenly anti-democratic than redrawing the boundaries of electoral districts to secure a partisan advantage? That’s gerrymandering.

Take Pennsylvania. In November 2012, according to the Washington Post, “Democratic candidates for the state’s 18 US House seats won 51 percent of their state’s popular House vote. But that translated to just 5 out of 18, or a little more than one-quarter, of the state’s House seats.” How come? Because Republicans had drawn ridiculously-skewed district maps the year before.

Republicans in control of statehouses and governors’ mansions across the United States have gerrymandered their way to the “the most audacious political heist of modern times,” in the words of investigative journalist David Daley. Remember, as political scientist Lee Drutman, of the New America think tank, observed in January, “Gerrymandering is largely a US phenomenon … We’re the only country that uses single-member districts but doesn’t use independent districting commissions to draw them.”

Americans from across the political spectrum have expressed their dislike of gerrymandering. A bipartisan poll conducted by the Campaign Legal Center in September 2017 found that 71 per cent of respondents, including 65 per cent of Republicans, want the Supreme Court to define “clear, new rules” that end blatant partisan gerrymandering.

There is, however, a glimmer of light on the horizon: in Michigan, an anti-gerrymandering ballot measure, calling for an amendment to the state’s constitution that would put redistricting in the hands of an independent commission, will go to a statewide vote in November. If voters in Michigan vote Yes, expect other states to follow their lead.

4) End the filibuster

“With the ridiculous Filibuster Rule in the Senate,” tweeted an irate Trump in April,“Republicans need 60 votes to pass legislation, rather than 51. Can’t get votes, END NOW!”

I hate to agree with this president, but he has a point. Why should a political party with a majority in the Senate require 60 votes to end a filibuster and get bills passed into law? Which other democratic country insists on a supermajority to pass routine legislation?

The filibuster was supposed to be an exception to majority rule; a way of ensuring that minority opinions were heard and considered before a Senate vote. In recent years, though, it has become the norm. As Yale University law professor Akhil Reed Amar and former Democratic senator Gary Hart noted in a joint op-ed for Slate in 2011, the filibuster has “metastasized into a rule requiring a 60-vote supermajority for every important piece of Senate business.”

In theory, the filibuster helps whichever party is in the minority in the Senate. In practice, it is the Republicans who have disproportionately used it to engage in cynical and anti-democratic obstructionism whenever they find themselves in the minority.

One of the main reasons that Americans continue to lack universal healthcare, for example, is the Senate filibuster: it was used by Republicans to stymie Bill Clinton’s healthcare plan in 1993 and again in 2009 to prevent Barack Obama from including a public health insurance option in his healthcare legislation.

So the filibuster has to go. Such a move may have been dubbed the “nuclear option”, but it isn’t very … nuclear. There is no need for a constitutional amendment or a supermajority to eliminate it. To quote Amar and Hart, “The upper house has the clear constitutional authority to end the filibuster by simple majority vote on any day it chooses.”

5) Get ‘dark money’ out of politics

“People with average levels of income have almost as much influence on politics as rich people in many Western countries – but not in the United States,” concluded a study by political scientists at the Varieties of Democracy (V-Dem) Project earlier this year. “On this indicator, the United States scores lowest among all Western countries, ranking 75th globally.”

Campaign spending doubled in the five years after the Supreme Court’s now-notorious Citizens United decision in 2010, which gave corporations and unions permission to spend unlimited sums of cash – called “dark money” because it is anonymous and untraceable – on elections as long as they spend it through groups which are nominally independent from the parties or candidates that they support, known as “super-PACs”.

And with the Supreme Court now in Republican hands perhaps for decades to come, there is no chance of Citizens United being undone via judicial avenues. “Citizens United is taking the legs out from underneath democracy,” progressive superstar and possible 2020 Democratic presidential nominee Senator Elizabeth Warren told me earlier this year. “And we have to be willing to overturn Citizens United. One of the tools available to us is a constitutional amendment.”

One popular option is the “Democracy for All Amendment”, sponsored by Democratic senator Tom Udall, which would give state and federal government the power to “regulate and set limits on the raising and spending of money by candidates and others to influence elections.” It would also prevent corporations “or other artificial entities created by law” from spending dark money to influence election campaigns. In 2014, it received 54 votes in the Senate – but it needs 60 to move forward to the next stage in the constitutional amendment process.

The public is onboard: three-quarters of Americans – including 66 per cent of Republicans – support a constitutional amendment to reverse Citizens United, according to a University of Maryland poll in May 2018.

6) Introduce term limits for the Supreme Court

No other constitutional court in the West guarantees jobs for life. Canada’s Supreme Court justices have a mandatory retirement age of 75. In Germany, it’s 68.

One of the reasons the Kavanaugh confirmation hearings were so divisive was because of what was at stake: the ability to decide on the laws of the United States for decades to come. As I have noted on these pages before, the two justices appointed so far by this president, Neil Gorsuch, 50, and Brett Kavanaugh, 53, “could still be writing opinions in 2048 or even 2058” which would make Trump the most consequential president of our lifetimes.

This is the Republican strategy. As Senate Majority Leader Mitch McConnell explained to Politico on 6 October, the day of Kavanaugh’s confirmation: “Putting strict constructionists, relatively young, on the courts for lifetime appointments is the best way to have a long-term positive impact on America.”

Long-term? Yes. Positive? Not for women, minorities or workers. It’s so random too: Obama appointed two supreme court justices in eight years; Trump has appointed two in his first two years. Jimmy Carter appointed none. Is it any wonder then that a Morning Consult/Politico poll in July found 61 per cent of Americans support term limits for Supreme Court justices, including a clear majority (58 per cent) of Republicans?

Technically, introducing such term limits would require another constitutional amendment, but there might be an easier fix: the president and Congress could “seek a commitment from a Supreme Court nominee that he or she will serve a sensibly limited period of time,” wrote lawyer (and later White House Counsel under Barack Obama) Robert Bauer in the Washington Post in 2005. “The president could announce such a commitment when he introduces the candidate to the media.” The Senate Judiciary Committee could also request such a public commitment and “over time, a custom or expectation would develop. No law would be necessary to assure that justices act in the socially accepted fashion.”

7) Grant statehood to Washington DC and Puerto Rico

The nation’s capital, Washington DC, has a population of 694,000 – higher than both Wyoming and Vermont. The population of the territory of Puerto Rico, at 3.3 million, exceeds that of 21 US states.

Yet neither DC nor Puerto Rico are states, which means they lack representation on Capitol Hill. But why shouldn’t the residents of DC have a say in the Senate appointment of Supreme Court justices? Why shouldn’t Puerto Ricans, who are US citizens, have a say in the presidential election? Also: if Puerto Rico had been a state of the union with full voting rights in Congress and in the electoral college when Hurricane Maria struck, in 2017, would it have been ignored and abandoned by the Trump administration in the shameful way that it was?

Statehood for DC and Puerto Rico isn’t as radical a proposal as it might seem. New states have been added to the country 37 times since the founding of the United States in 1787. Alaska and Hawaii joined the union, becoming the 49th and 50th states respectively, as recently as 1959.

The locals are keen too: in 2016, 79 per cent of voters in the District of Columbia backed a ballot measure petitioning Congress to become a state. In a referendum in 2017, 97 per cent of Puerto Ricans voted for statehood.

An extra four senators from Puerto Rico and DC – almost all of whom would likely be Democrats – would be a first step towards redressing the current imbalance in the US upper chamber, which gives Republican senators from smaller and more rural states the power to overrule Democratic senators from bigger and more urban states.

Then there is the small-d democratic argument for statehood – whatever happened to the credo of the American Revolution, “no taxation without representation”?

8) Lower the voting age to 16

“My generation won’t stand for this,” declared Cameron Kasky, after a gunman massacred 17 students and staff members at Marjory Stoneman Douglas High School in Parkland, Florida, on 14 February. Within the space of a month, Kasky and fellow survivors of the school shooting had launched a historic march for gun control, the March for Our Lives, and by April, they were featured in Time’s list of the 100 most influential people in the world.

Nevertheless, most of them can’t vote yet. Kasky won’t be 18 come November 6. Nor will fellow Parkland student activist Sarah Chadwick.

Isn’t this an outrage? Why shouldn’t 16-year-olds who pay taxes and drive not be allowed to vote? Why shouldn’t kids who are getting shot at in school be allowed to have a say in the legislative debate over gun control?

In recent years, a growing number of democracies have reduced the voting age to 16: in South America, Argentina, Brazil, Ecuador and Nicaragua; in Europe, Austria and Scotland. Here in the United States, in 2013, the city of Takoma Park, in Maryland, reduced the voting age to 16. The result? 16 and 17-year-olds voted at twice the rate of voters over the age of 18.

In fact, according to a 2017 study by University of Kentucky law professor and elections expert Joshua Douglas, “Lowering the voting age can… create a habit of voting and increase overall turnout in later years.” Research also suggests there is a positive “trickle up” effect: “When young people vote, their parents are more likely to vote, too,” wrote Danish political scientist Jens Olav Dahlgaard in the Washington Post in March.

The United States last lowered the voting age, from 21 to 18, in 1971, via the 26th amendment. At a White House ceremony to mark the change in the law, President Nixon declared: “The reason I believe that your generation, the 11 million new voters, will do so much for America at home is that you will infuse into this nation some idealism, some courage, some stamina, some high moral purpose, that this country always needs.” Nixon’s words still apply today – but for 16 and 17-year-olds too.

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None of these steps or reforms will be easy. Some require a simple vote in Congress; others require a constitutional amendment.

The latter are difficult, but not impossible. The United States has already amended its Constitution 27 times – which works out to around once every nine years. The last amendment to pass, on the issue of congressional salaries, was in 1992. “We are overdue for at least one more amendment,” says David Leonhardt of the New York Times.

The temptation for Democrats post-November, and post-2020 if they win back the White House, will be to spend their political capital on big-ticket items that are popular with the base: universal healthcare, debt-free college, investment in infrastructure.

But democratic reform cannot be seen as a side or secondary issue. Expanding the number of citizens who can vote, and making sure all votes count, should appeal to Democrats both for principled and pragmatic reasons: in terms of principle, it is good for democracy that citizens can exercise their right to vote; in terms of pragmatism, it is good for the Democratic Party for poorer and more diverse voters to be able to exercise their democratic rights.

Some have argued that the United States was designed to block majority rule; to be a “republic, not a democracy”. This is ahistorical nonsense. Founding fathers such as John Adams and Thomas Jefferson referred to the United States as a “representative democracy”.

Yet, in 2018, the truth is there is very little that is “representative” about it. Forget republic, forget democracy – think oligarchy. Trust is down and turnout is low. Billionaires and corporations buy and sell politicians, while citizens struggle to exercise their right to vote or hold their elected representatives to account. Whatever happened to “We the People”?

“The world’s greatest democracy,” is how President Obama once described the United States. Far from it. American democracy is broken – and in urgent need of repair. Democrats may soon be handed a once-in-a-lifetime opportunity to fix it: they must grasp it with both hands.

Miles Kimball
Miles Kimball is Professor of Economics and Survey Research at the University of Michigan. Politically, Miles is an independent who grew up in an apolitical family. He holds many strong opinions—open to revision in response to cogent arguments—that do not line up neatly with either the Republican or Democratic Party.

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