The Game is Rigged
Our constitutional system was set up to maintain the status quo and block progress. Until Democrats deal with that issue they will continue to be at a nearly insurmountable political disadvantage.
I’m Michael A. Cohen, and this is Truth and Consequences: A no-holds-barred look at the absurdities, hypocrisies, and surreality of American politics. If you received this email - or you are a free subscriber - and you’d like to subscribe: you can sign up here.
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For reasons I can’t quite determine this piece, which was supposed to be sent out yesterday … did not go out via email. Hopefully, this one will end up in your inbox! As a quick reminder, I’ll be Zoom Chatting tomorrow at 12:30 PM — and the link will go out in the AM. My oldest daughter is quaranting at home for the next few days so it’s possible she will make a guest appearance!
The America Constitutional System Is A Hot Mess … By Design
Today in the New York Times, Thomas Edsall asked a host of political scientists what Democrats need to do to “pry the country” back from Donald Trump, and Steven Levitsky makes an essential point.
“The Democrats have been amazingly successful in national elections over the last 20 years,” Levitsky wrote in an email.
“They have won the popular vote in 7 out of 8 presidential elections — that’s almost unthinkable. They have also won the popular vote in the Senate in every six-year cycle since 2000. You cannot look at a party in a democracy that has won the popular vote almost without fail for two decades and say, gee, that party really has to get it together and address its “liabilities.’”
Instead, he argued,
“the liabilities lie in undemocratic electoral institutions such as the Electoral College, the structure of the Senate (where underpopulated states have an obscene amount of power that should be unacceptable in any democracy), gerrymandered state and federal legislative districts in many states, and recent political demographic trends — the concentration of Democratic votes in cities — that favor Republicans.”
“Until our parties are competing on a level playing field,” Levitsky added, “I am going to insist that our institutions are a bigger problem for democracy than liberal elitism and ‘wokeness.’”
Levitsky’s point gets to what I consider one of the enduring frustrations in writing about politics, namely that the explanation for America’s political dysfunction is relatively straightforward — a constitutional structure weighted against progress — but that answer is so unsatisfying that people are constantly searching for a deeper explanation.
This ingrained paralysis, not surprisingly, is more aggravating for progressives who want to see Democrats in Congress pass transformative legislation — and are frustrated by their failure to do so. Their inclination is to look for answers: is it the role of money in politics? Are Democrats bad at messaging? Why don’t they have more backbone? Are they the victims of a hostile press corps? To varying degrees, all of these are factors in explaining the legislative inadequacies of Democrats. But they miss the forest for the trees, which is that the constitutional deck is stacked against change.
Built To Fail
America’s constitutional system, established by the Founding Fathers more than 200 years ago, is festooned with chokepoints and political impediments to reform — and in defense of the status quo. Democrats have overcome these obstacles at various points in history, but those moments are the exception, not the rule.
Take, for example, the challenge of merely passing a law in Congress. Let’s say a House member introduces a piece of legislation (and if it involves the raising of revenue, it must originate in the House of Representatives). It is first debated and passed out of committee (though this is not a constitutional requirement). Then it needs to receive a majority of votes from House members. Once that happens, then the Senate considers the legislation. If it is re-written or changed, the two bills then need to be married so that the language is identical. Then both Houses need to pass it again.
If that happens in both the House of Representatives and the Senate, it is sent to the president for their signature. But the president can veto the bill, and the votes of two-thirds of each congressional body are required to override it. Think about the number of obstacles within the system to impede progress. This is not accidental. It’s the way the Founders wanted it. For a host of reasons, they purposely designed a system with a relatively weak executive brand and a powerful legislative branch. But one of the by-products of that decision is that debate and consensus-building take major precedent over quick action.
What about amending the Constitution? That’s even more difficult. According to Article 5, even proposing a constitutional amendment requires the support of two-thirds of both the House and Senate or two-thirds of the state legislatures calling for a constitutional convention. If that obstacle can be surmounted, the state legislatures in three-fourths of the states must then ratify the amendment.
Since the passage of the Bill of Rights in 1791, which provided ten amendments to the Constitution, a mere 17 constitutional amendments have become law — that’s one every 13.5 years. And only one constitutional amendment has been ratified in the past 50 years - the 27th amendment, which limits how members of Congress are compensated and was first proposed in 1789.
The Informal Rules Are No Better
So far, I’ve only discussed the formal, constitutional rules that impede progress. But there’s a much more significant, less considered factor, which Levitsky gets to above, namely, “the structure of the Senate (where underpopulated states have an obscene amount of power that should be unacceptable in any democracy).”
The US constitutional system is heavily weighted toward supporting and defending regional and parochial interests. In a small “d” democratic system — or a parliamentary system — America would have one legislative body, the House of Representatives, where laws are passed by majority vote and become law. Instead, we have a second body, the Senate, where every state gets the same level of representation. This gives outsized power to small states and regional blocs which cultivates an ethos of parochialism in law-making. It’s why a small bloc of Southern states was able to wield its regional power for decades in blocking civil rights legislation from passing in the Senate.
And it’s why today, two Democrats senators (Joe Manchin and Kyrsten Sinema) can singlehandedly block far-reaching Democratic reforms. In a system weighted toward parochialism and against change, two members of a narrowly-divided Senate, who happen to view their political interests in their home states very differently than the other 48 Democratic senators, have out-sized power. In a parliamentary system, the majority party tends to be more united and can act as one powerful bloc. In the US system, greater power is granted to the individual members of Congress — and they have far more leeway and ability to operate on their own and against the interests of their party’s policy agenda.
Also, because the Senate is, culturally, viewed as the proverbial “saucer” needed to cool “hot” bills that pass in the House of Representatives, the body itself has another set of checkpoints that make it extraordinarily difficult to pass legislation. Again, none of this is accidental. The Founders wanted it this way.
And because we have this chokepoint-filled constitutional system it inevitably disadvantages modern Democrats who are the party of reform and progress. Republicans are a counter-majoritarian party, reliant on minority support in the Senate (Senate Democrats represent a far larger share of the population, even though the body is 50-50), and structural advantages in the Electoral College. They have no real policy agenda and operate within a political structure that favors conservative preferences for maintaining the status quo and limiting the role and power of the federal government. Moreover, their disproportionate political power in small, rural, and conservative states, allows them to change the political rules at the state level on issues such as voting rights and gerrymandering. This gives them the ability to protect their political interests, maintain electoral power, and avoid true democratic accountability.
Finally, by seeding the federal courts with conservative judges — a by-product of their advantage in the Electoral College, which allowed Republicans to win two presidential elections in which they lost the popular vote — they can ensure that those rules, which fundamentally undermine basic notions of democratic equality, remain in place.
Occam’s Razor
The bottom line here is that there is no magic bullet explanation for dysfunction in Washington, the inability of Democrats to pass their legislative agenda, and the counter-majoritarian strength of the Republican Party. In modern jargon, don’t hate the player … hate the game.
The problem, of course, is that the simplest explanation for political paralysis — that the system is set up this way — is also the most frustrating. It’s why people constantly search for ways to make things better, whether it’s term limits or reducing the role of money in politics, but nothing ever really gets better. It is like playing a football game only within the 45-yard lines. And worst of all, changing the basic outlines of America’s constitutional system is the biggest lift of all, for reasons I’ve mentioned above.
The simple reality is that if Democrats want to rebalance the political system toward them — and the forces of reform and progress — they need to win majorities in the House and Senate to force through large structural changes. Unfortunately, significant and necessary reforms are basically impossible, like eliminating the Electoral College and getting rid of the Senate. But plenty of steps can be taken, like making DC and Puerto Rico states; eliminating partisan gerrymandering; expanding the number of justice on the Supreme Court; fully extending voting rights, and of course, scrapping the filibuster (indeed, one can’t do the former without the latter). Until Democrats focus on those kinds of larger systemic changes, they will keep trying to put legislative band-aids on constitutional head wounds.
As Occam’s Razor reminds the simplest explanation is usually the right one … sometimes, it’s also the most depressing.
What’s Going On
Read my latest piece in the New Republic on how the situation between Russia and Ukraine got so out of hand — and what the US can do to fix things.
Musical Interlude
This video is today’s obvious choice.
This song feels like an obvious choice too!
The Game is Rigged
Mayhap we'll do a better job next time round. Meantime, may all the stars and constellations bring you hope as they guide you out of the dark and into the light, on this voyage and the next, and all the journeys still to come.
I just remembered one other change that Democrats CAN make and are making. Fixing the Supreme Court would be wonderful but not realistic in this environment. Given the number of cases that the court takes and realistically could take if it was willing to, the circuit courts have enormous power. Circuit court appointments and district court appointments are critical--as many and as quickly as possible. Here, both the Biden administration and the Senate are quietly on fire. Biden is working as fast as one can with such important appointments and the Senate is obliging.