Why I am Where I am on Reform
More on SCOTUS expansion and other issues.
I started this as a comment to James Joyner’s thoughtful post this morning that is forming a bit of a back and forth between the two us over the question of whether the Supreme Court ought to be expanded or not should the Democrats win both the White House and Senate in the 2020 elections.
I appreciate where James is coming from and we agree on quite a bit about the country’s institutional ills. I agree, very much, that the US House of Representatives should be expanded, and perhaps that will happen, although I see no movement in that direction at the moment in our politics.
I have come to the reluctant position of adding states, even DC, and expanding the Supreme Court because they are things that are doable constitutionally and for which there appears to be at least some political will to attempt (although, to be honest, I expect that there may be more sound and fury on these topics than there is actual willingness to act).
As I outlined yesterday, and as I constantly write about, it is my assessment that we have a profound and growing problem of basic representativeness in our national government that we lack the willingness (often even the understanding) to fix. Worse, the party that is currently benefiting from the deficit of representativeness is willing to continue to manipulate the system to its advantage.
Which, by the way, is what we should expect. Actors who benefit from a system are not likely to want to reform that system. Worse, they are often willing to try and further make that system serve their interests for as long as they possibly can. Since the Republicans have an incentive to continue to exploit lack of representativeness in the system, Democrats need to find ways to expand it. Hence, my views on the topic at hand.
I do want to be clear: my ultimate goal in increased representativeness in our government. It is not a specific policy outcome nor is it power for a specific party.
I think the crux of the basic disagreement between James and myself over adding members to the Court is here:
With the exception of the unseemly power play that denied Obama a third Justice and held it open for Trump, this process is entirely reasonable and steady. Trump’s replacing Ginsburg, too, would be perfectly normal aside from the precedent that held open the seat that went to Gorsuch.
I agree, had Gorsuch been replaced by Obama, I probably would not be in the frame of mind that I am at the moment about expansion. But, I want to be clear that I am not taking this position because I want revenge for Garland or because I am upset that Ginsburg is going to be replaced at the last minute.
To get even more specific: a system that would allow a president elected as Trump was to have the power to appoint one-third of the Court (and to have that one-third in place for potentially thirty years) is highly problematic from a democratic-theory point of view. It is enshrining minority power for decades.
What has driven me to this position is taking a step back and looking at the absurdity of the highest court in the land being populated by presidents coming to office without majority support appointing Justices who are confirmed by a Senate that does not represent the population. And throw on top of that the fact that the randomness of death largely dictates when these vacancies occur.
It is, if one steps back and looks at it, a fairly absurd way to distribute power of this significance. It almost Pythonesque watery tarts handing out swords absurd.
A 6-3 majority on the US Supreme Court with five Justices directly linked to popular vote/electoral vote inversions is a direct manifestation of that absurdity. This is almost certainly a durable five-seat majority for at least another decade, and with the Trump appointees potentially for three. All in an institution with profound power.
I would gladly redesign the whole system, but redesign is not in the cards. The options become, then, do nothing to a clearly flawed system (at least if one cares at all about the fact that it is a manifestation of minority rule) or expand the Court.
So, I have come to the point of supporting expansion.
I am open to other suggestions, to be sure. I am even willing to have my mind changed on this subject.
Still, I found myself moving this direction in the last couple of months (along with adding states) because of the broad problems that James notes in his post and that I write about constantly. I am at the point of trying to figure out how to enhance some level of increased representation by whatever legal and politically achievable means exist.
In my post from August, Reforms: the Possible, the Improbable, and the Unpossible, the possible category was as follows:
- Increasing the size of the House.
- Adding DC and Puerto Rico as states.
- Increasing the size of the Supreme Court.
- Adopting multimember districts and using ranked-choice voting to elect Congress.
If I had to choose only one, it would probably be number one, expanding the House. Number four, serious electoral reform, would be huge (although it would be better with an expanded House) but it strikes me as unlikely. Numbers two and three are the only ones that anyone seems willing to even attempt, so I have settled on them.
If I had my way we would utterly reform the Court, use staggered, fixed single terms. I think the Court is too small, so would also expand it. We need regularity in this process, not making decisions about decades of power because of when someone happens to die.
Alas, that isn’t going to happen.
However, the main point of this post: my interest in Court expansion is not about Garland or Ginsburg, per se (or even about McConnell and Trump). It about the broader problems with the Court and our whole constitutional order and one of the only ways I can figure out to address them at all.
For a long time, I was of the view that it was best to try and educate about the flaws in the system and to talk about fairly dramatic reforms. I will still do so, but have become persuaded that stopgap, achievable change is also necessary, even if it is a bit dramatic on its face. Also, the only way to even start to get the side that is favored by the status quo to talk about change is to show a willingness to make unorthodox moves if those are all that are available.
I don’t really understand how the American supreme court works (then again, I don’t understand how Canada’s works either), but from what I’ve read its extremely political and the Republicans basically stole a seat from the Democrats.
The question I have about court packing — if that becomes the new norm (ie every president packs the court upon taking office to make sure their party has the majority on the court), then will legal (as opposed to political) elements play any part in its decisions? Will anyone take the rulings seriously, when its always handpicked to back whoever the current president is?
I wonder, if faced with that threat (as a non-lawyer the threat of having each president in effect select their own court strikes me as extremely dangerous — basically it sounds like what you’d find in a dictatorship), the two parties could come together to work out some other reform (judge term limits etc)?
There’s the rub, though, isn’t it? All these reasonable correctives you’ve identified, including a few endorsed by both you and James, are beyond any expectation of actually getting accomplished.
In the threads of yesterday, the barriers to DC and PR statehood were well noted and James is not alone in his fears that expanding the SC will delegitimize it. Increasing the size of the House isn’t all that attractive to me when I consider the recent history of the House being thwarted by an opposition Senate. (It’s also important to note that additional Representatives will be paid for by taxpayers and you just know that pay won’t be reallocated from the Defense spending part of a “balanced budget.”)
Those with the power to make such significant change have no incentive to make even minor changes. The Constitution was made to make it painfully hard to Amend and there is a powerful cohort in the country who see the Constitution itself as sacrosanct.
I don’t see how we fix any of this without first fully breaking it. Maybe Trump’s actions in the coming months will do that for us.
I agree with almost everything you said here, with one exception:
These people have sworn an oath of office. Your continual “we just have to accept them violating it over and over” is depressing. No. We don’t have to accept that. Just as we shouldn’t accept a sheriff who looks the other way when their friends and relatives and business partners commit crimes. Just as we shouldn’t accept a doctor who gives substandard care to people he disagrees with politically.
Since Gingrich I’ve heard this refrain over and over. We should just accept whatever depredations Republicans commit, and hope that Democrats can repair the damage when they get power for a few years. And now you have James adding to that burden that Dems should obey norms that Republicans violate lest we provoke the gun nuts and white power fanatics and bring about civil war.
We are now in the business of trying to save the Constitution, but under circumstances where the Constitution itself makes it impossible. This is a 233 year-old document. It’s not the fault of the Framers – you try and design a durable system of government for the year 2253. You know, 233 years from now, roughly the time of Kirk, Spock, Bones, Klingons and Romulans.
It is absurd on its face that a set of rules designed for slave-owning tobacco farmers and tea importers in an era when people regularly died of disturbances of the bodily humours would work for a 330 million person, 50 state, coast-to-coast economic, military and cultural superpower.
We are deep into the jury-rigging stage. Armed with duct tape, Bondo, a staple gun and a C-clamp, we’re gonna hold this thing together. Will it hold? Not without new dilithium crystals.
The essential intractable problem is states. They make no goddam sense, they mean nothing, they are random lines drawn on a map a century or two centuries ago. Because of states we have a non-representative national government, a government that can be hamstrung by the least successful states and the most backward populations. And we can’t do anything to fix the situation because: states. Just beautiful.
The Constitution is an exhausted old man sitting in a corner mumbling about his high school football days.
Politics in this country is down to raw power, a brutal numbers and dollars battle without rules.
What should happen is that the Dems and Repubs should strike a deal to head that off. The difficulty there is the word of the Republican leadership means nothing. They will go back on any commitment or promise in a heartbeat.
Do we really, though? At the superficial level of party politics – i.e., whether Republicans or Democrats get elected and appointed – that’s obviously true – but as a substantive matter, I’m not sure the problem is all that profound. On the whole, the actual policy environment that the system has produced over the last 20-30 years doesn’t strike me as that far off from what we would have if the system were more majoritarian. The left-leaning viewpoint is the one that is ostensibly underrepresented, but over the last few decades, we’ve seen major expansions of LGBT rights, preserved and in many ways strengthened the legal prohibitions on other forms of discrimination, held the line on education spending, continued the long-term reduction in poverty levels, implemented major subsidies for renewable energy, increased Medicare and Medicaid coverage, passed a major reform of the healthcare system, and so on, all of which have been permitted (or even imposed) by the Courts. That hardly seems like a crisis of representation for left-leaning voters. If we were to go to a more majoritarian system, I suspect that we would, at most, look a bit more like Canada or Western Europe, but viewing the gap between that and the current reality as a crisis seems hyperbolic.
I know that point might seem like a bit of a tangent from the current topic, but for me, it’s a crucial factor in determining whether extraordinary measures like expanding the SC are warranted. If the left-leaning preferences of the majority were being effectively ignored in federal policies, then I would be more inclined to see a true crisis of representation warranting radical change, but as it is, I’m more than a little skeptical that’s the case.
Actually, it starts becoming unfeasible pretty quickly, both logistically and politically. The problem conservatives have is that they of the party of small government cannot really advocate expanding the SC. Putting hypocrisy aside, expanding the SC doesn’t help the conservative side very much because they tend to have more defectors then the liberals. That’s one of the reasons why they’re so mad at Roberts – he was supposed to be a lock for them since he was appointed by a conservative as an acknowledged conservative. The GOP can appoint someone who swears to God in their secret planning sessions that they’ll get rid of Roe…… only to not when it comes down to it. Packing the court is useless unless you are assured you’re getting what you want.
Conservatives would be better off trying to legalize some sort of limit or compromise on age limits or mandatory retirements. Lifetime appointments meant something different back in the day. Allowing a judge to serve for literal generations isn’t something the Founders intended.
@MarkedMan: I think you are misreading what I mean by “expect”–I expect the behavior in question the same way I expect a rock to fall to the ground if I pick it up and drop it.
Apologies for replying to my own post, but the edit timer has expired, and I realized I should clarify that I do favor significant reforms – namely, replacing the EC with national popular vote for President, expanding the House, rolling fixed terms for USSC and other Federal judges, and statehood for Puerto Rico. It’s just that I’m very reluctant to implement those changes through a tit-for-tat partisan maneuver absent a more compelling crisis situation.
As a side-note, I’ll say that I do want to preserve the “two Senators per State” structure, though, as I think it serves as a useful regional-representation function, and I oppose DC statehood given the small geographic size and lack of distinction from the surrounding polities.
I’m sorry, WTF are you talking about? What regions? The Dakotas with 4 Senators? The very different regional needs of Iowa and Nebraska? There are at least 10 Senators representing the needs of the Rocky Mountain states. Why in God’s name should the Rocky Mountain states have more representation than the West Coast ‘region?’
I oppose statehood for South Dakota because of its small demographic size and lack of distinction from the surrounding polities.
Hell, if we’re going with size as the determining variable, Alaska’s got beef. All that land and just one Congressperson?
We could continue to jerry-rig this thing with states except for one thing — the less populated states are failing. Anyone with the ability and any foresight leaves them, leaving everyone left there bitter and angry.
If your kids have to leave to have a decent chance at life, and the small city you live in or around is collapsing, you will be bitter and angry and want to go back to a past — or a vision of the past a bit nicer, the past’s hoped for future — and be easy pickings for conservative know-nothing charlatans.
We have no industrial policy. We haven’t really had one in ages. And the good jobs are consolidating in and around a few large cities. The best jobs go where they can find qualified workers, and qualified workers go where there are the best jobs.
States compete against each other for jobs with tax breaks and low taxes — a race to the bottom that results in the states eating their own seed corn, and which only attracts a lower quality “good job” anyway, a low education good job.
We need an industrial policy. We need the Green New Deal, modified a bit. We need to incentivize jobs in failing states at the federal level, rather than the state level, to prevent states from having to destroy themselves to try to get jobs.
In theory, a greater representation for the failing states via the Senate should provide the incentives to make this happen, but we can see that this isn’t working. Appealing to resentment works better for the politicians, and we have a party with every incentive to offer failed solutions.
“Also, the only way to even start to get the side that is favored by the status quo to talk about change is to show a willingness to make unorthodox moves if those are all that are available.”
@Steven L. Taylor: I also “expect” GOPs to behave as they do, just as you say, like a rock falling. But from a management or parenting perspective, we should “expect” better of them. As a manager I expect my team to do their jobs. I expect my child to behave well. And I make those expectations well known. And if appropriate I may apply sanctions for not behaving properly. That said, the only ways I know to set expectations and apply sanctions are for pundits to set expectations, to vote them out, and to prosecute them when appropriate.
The GOPs don’t have to be like this. They could follow their own 2012 post-mortem. They could follow the advice of the reformicons. They could run on social conservatism without the racism, support social programs, advocate a carbon tax, and still be generally pro-business. They’d have to cut loose from the Billionaire Boys Club money and probably spend a few cycles in the wilderness. But they could save their souls. Nixon was an asshat, and he did run on lawn order and the Southern Strategy, but Vietnam aside, his policies were acceptable. We didn’t worry he was going to destroy SS or bring the whole country crashing down.
The MSM could certainly do a better job, I fear they too often normalize the bad behavior. They are prone to what GOPs, in other circumstances, call the soft bigotry of low expectations, as is James sometimes. But beyond the odd nasty letter to NYT I have little control over that. That leaves voting straight D and hoping the Biden admin will investigate and prosecute crimes. An example to clarify – Kushner should not be prosecuted for saying PPE supply should be left to the free market and if Cuomo wanted more PPE he should have sucked up better. That’s incredibly stupid, to the point it should be illegal, but it isn’t. But if he got one nickel out of the subsequent profiteering he should serve time. And we should work hard to find out.
Vote Blue, no matter who.
I’m thinking about the fact that people with similar cultural practices and political preferences tend to be geographically clustered rather than uniformly dispersed throughout the country. It’s obviously not as cut and dried as the familiar red & blue electoral maps suggest – at the county level, there’s a whole lot of purple out there – but I think it’s equally obvious that the cultural/political milieu of the Deep South differs from that of the Northeast in meaningful ways.
This geographic clustering can lead to tensions in a pure majoritarian system if a regionally-coherent cultural/political group feels it is effectively shut out of power because it is outnumbered at the national level by some other regionally-coherent cultural/political group, so some sort of balance between majoritarian and regional representation should be struck to preserve long-term legitimacy and buy-in. Equal State representation in the Senate is an imperfect, but historically grounded and therefore widely accepted, way of doing that.
This also sounds sensible to me. I disagree that the Court seems too small, but I think I’m too distracted an observer to usefully make that assessment.
I could certainly agree with expanding the size in order to increase regularity, though, if the math works out that way.
In theory, it should be apolitical. It’s not a partisan or elected office, and was designed to be held apart from political fights via lifetime appointment. In theory, the SCOTUS should be handing a lot of power back to the legislature–as Chief Justice Roberts suggests–for the redrafting of law as more constitutional, or the amendment of the Constitution.
The problem is that this doesn’t work in practice: the Constitution is largely seen as sacrosanct, so projects to draft and ratify new Amendments are rare and just as rarely successful, so what is constitutional doesn’t actually change very much. As a result, the capacity to declare constitutionality becomes an extremely big deal, because it’s effectively a second-order veto power on any piece of legislation. This is not what the Framers intended, and has inevitably led to a politicization of the court, which means it’s immensely important who gets to choose who gets appointed.
@R. Dave: Except it doesn’t do that at all.
Any way that you divide the states into reasonable regions, you end up with some regions having way more power in the Senate than others.
You could devise a system that does represent regions, but it wouldn’t resemble the Senate.
I really question what purpose the Supreme Court has if not to rule on the constitutionality of laws. It’s a check on the Congress. Something has to enforce “Congress shall pass no law to…”
And the first time the Court used that power was well within the lifetimes of the founders, and didn’t trigger a massive crisis.
The framers may have expected that more amendments would happen. Except for Jefferson who thought the entire constitution would get tossed out and rewritten from time to time (perhaps by his slaves after they rose up and slaughtered their masters? who knows what he was thinking…)
As an aside, if Trump nominates an originalist, the nominee will be rejected for owning slaves.
Some original jurisdiction cases, like between states (although Mr. Reynolds would take care of that). I live in Colorado, signatory to nine different interstate water compacts. We are basically always in some active Supreme Court case because we’re suing some other state, or they’re suing us, about claimed violations of the terms of the compact(s).
The ability—necessity—of the SCOTUS to have Power to declare laws unconstitutional was established in two cases, one 1796 and one in 1803. And state courts have the power to do that with state law.
Judicial Review in the United States.
@Michael Cain: Should have also added that the very large majority of the cases heard by the Supreme Court involve detailed interpretation of federal law, not the constitutionality of those laws.
@Northerner: As a former clerk there, I can say Canada’s SCC is far less political, but that’s in large part because historically the governing parties are less far apart than in the US. There is also no similar Senate confirmation process – nominees are now vetted and suggested by independent advisory board. There is also an age 75 term limit.
There are also varied sittings – some cases are decided by 5 or 7 judges, as opposed the full 9. This can lend itself to less partisanship since a 7 judge panel could have a majority of conservatives even if the majority of the court is liberal or vice versa. This would work with a bigger SCOTUS.
A good piece by Scott Lemieux (one of the front pagers at Lawyers, Guns & Money) on this topic:
“That’s not how the system of checks and balances is supposed to work. American political elites have generally supported the strong form of judicial review that emerged in the late 19th century because the Supreme Court generally tracked with the constitutional views of the dominant political coalition. A Supreme Court representing an entrenched, unpopular minority faction that refuses to allow the popular majorities from the other party to effectively govern would be neither democratically legitimate nor politically stable.
Indeed, the previous periods in history in which the Supreme Court was controlled by an opposition faction — the early Jefferson administration, the Civil War and first years of the New Deal — all led to constitutional crises that ended only when the court itself backed down. The closest parallel to Trump getting a nominee confirmed — whether just before or after the election in a lame-duck session — would be the lame-duck court-packing of John Adams’ administration, which led to a fierce legislative backlash from Thomas Jefferson’s administration and its congressional supporters.”
The problem is not states. The problem is the way the constitutional treats them.
@Moosebreath: Come On. When Catholic Amy Coney Barrett joins the Catholic Clarence Thomas and Catholic John Roberts and Catholic Brett Kavanaugh and the raised Catholic Neil Gorsuch in striking down abortion protections supported by 77% of Americans, I can’t think of a more legitimate result.
Except that really isn’t true. The real divide is rural-urban. Atlanta residents, on balance, have more in common with Philadelphia ones in terms of governance needs and likewise rural Pennsylvanians and rural Georgians.
We allow ourselves to get lulled into simplistic thinking with Red states and Blue states or even simplistic regionalism.
The bottom line is that government should represent people, not real estate. Local governance issues and variations should be handled by local government.
I would amend this to say some form of voting reform as there are a number of alternatives to first-past-the-post besides ranked-choice. Personally I’ve been leaning towards single-transferable-vote but I’m nowhere near familiar with the nuances of all the options.
Just watched Biden’s speech on Ginsburg and the court. I really, really agree with Josh Marshall that the dems need to cut it out with these lame appeals to the decency and sense of fair play among republicans. It comes across as weak and pathetic because we all know it won’t be affective. They need to be explicit about the consequences should McConnel and Trump move forward on this… DC statehood, packed courts, whatever else they have in their quiver.
@Steven L. Taylor:
But being fought in the suburbs, where a bit over half of the US population lives. I would argue that the suburbs of Atlanta, Philadelphia, and Denver (just to have a non-East Coast city in the mix) are surprisingly different.
@Teve: Interestingly the Marbury v Madison case which made the Constitution into the governing document it is today was about judicial reform. Mr Marbury was suing the Sec’ty of State, Mr Madison, because the Judicial Act of 1801 signed by Pres Adams during his lame duck session had made Mr Marbury a Federal Judge. The new administration changed the law and refused to deliver the commission. Marbury sued to get it.
Maybe you have to be a history major to find that as fascinating as I do, eh?
@Gustopher: I wanted to endorse what you are saying about the Senate and how it’s over representation of low-population states could be used. Much like RFD for the Post Office, rural electrification, rural telephone service, rural road systems, we could be engaging in economic development in these rural areas, and we aren’t. Economic development in these areas would very likely be a positive for just about everyone, regardless of where they live, but it would help these areas the most. We aren’t doing economic development anywhere because the people who already have money don’t want anybody else to have a chance, and they’ve got a stranglehold on Republican politics, with culture wars as their chief weapon, and social media as their delivery system.
That’s my one-paragraph view of what’s happening, and why I’m not keen on getting rid of the Senate or whatever. However, I endorse adding states as basically a “if you break norms, so will we” sort of policy. And the House’s poor representation is a serious problem.
What seems to be entirely missing from Steven Taylor’s analysis is any curiosity about or understanding of how a system that worked perfectly well for over two centuries is now, to his mind, no longer functioning. You can’t fix something until you know what’s wrong. Any changes made without that understanding will likely only make the problem you supposedly care about even worse.
Hint: It would be far easier to get the Democratic Party to stop telling huge sections of the country and huge segments of the population to FOADIAF.
In terms of policy preferences, I am not sure this stands up to scrutiny.
Actually, RCV in multi-member districts is STV.
That sounds a little like the classic liberal Dem lament that rural and working-class Republican voters are being manipulated into “voting against their interests”, which of course presumes that the person issuing the lament knows what those interests are better than the voters themselves. Whether or not the material issues facing rural voters in PA and GA are objectively similar, what matters here is how people subjectively identify, who they see as “us” and who they see as “them”. I think it’s hard to make the case that the cultural and political identity of Republican voters across the South, Southwest, and “Heartland” regions isn’t defined, in significant part, by opposition to the so-called “Coastal Elites”. Simplistic or not, there’s a pretty clear regional gloss on that.
Having lived in both Maryland and Virginia for significant stretches of time, I have to wonder what you’re smoking, and where I can get some…
I decided to momentarily beak my self-imposed OTB exile to comment on this most interesting and surprising post. As will soon be apparent I have a different view of this. I think the fundamental problem with your position here is that you’ve misdiagnosed the problem and what you’re advocating for here is actually counterproductive to achieving your aims.
If I’ve been reading your arguments fairly over the many years you’ve been writing here on this topic, you’ve consistently attributed the disparity between EC and popular vote results over the last couple of decades to problems with the EC and the electoral system itself.
The problem with this interpretation is it doesn’t explain why these disparities only appeared with regularity recently when the system hasn’t changed since at least 1929 and the number of EV’s hasn’t changed since 1961. So the question is why, only in the last few decades, have we seen frequent popular vote – EC mismatches? And why to the specific disadvantage of one party?
Since the system and rules have remained the same then the variable that must have changed to cause this mismatch is the parties themselves. The fact that the system allows for the possibility of a divergence between the popular and EC vote can’t explain why it manifested at the particular time and circumstances it did.
In my view, the emergence of the mismatch coincided with the parties changing from big-tent parties focused on building winning coalitions with a modicum of centralized leadership and discipline to parties that are more like brands with little to no centralized control. You’ve written a lot about this, and about how our two parties are functionally unlike parties in any other democracy. The fact that Democrats are today biased toward an urban elite while Republicans are toward more rural working-class demographics was not inevitable and it is not an iron law that must persist in the future.
So the Democratic disadvantage in the EC isn’t structural. The most obvious way to prevent future disparities between the EC and popular vote would be for the Democrats to deliberately become more competitive in the EC. This is what a normal party in any other democracy would do. It’s also what either of the parties would have done 30 years ago. Considering Trump’s unpopularity, this would normally be relatively easy if the Democratic party acted like a party should.
Adding states and packing the court in an attempt to balance representation thus fails on multiple levels:
1. It fails because the proximate problem is not actually the EC or the Senate and associated systems and institutions, it’s the result of how the parties have fundamentally changed over the last few decades, as described above.
2. It fails because the parties are not actually representative of the US population and are growing less representative over time. This is an old debate, so I won’t detail the argument here unless someone asks, but to summarize, the notion that only two political parties are able to adequately represent the political views and preferences of a huge nation of 320 million is just obviously not the case. We have two parties because of the incentives in our system, not because the American people are neatly divided into two camps. “Representation” therefore is weak at best when applied to our binary system, even more so given the problems with parties described earlier. So your proposed measure doesn’t actually increase representation, all it does is intentionally give one party a temporary structural boost.
3. It fails because it’s not a rebalance, it’s an escalation. And escalation invites further escalation. James Joyner is correct that packing the court(s) would destroy the legitimacy of the judiciary, which is already under attack from all sides. That is a high price to pay to give one party a temporary advantage. And temporary it would be. Democrats should well understand at this point that escalations have a tendency to circle around and bite you in the ass.
4. It fails because it is a blatantly partisan move designed to change the system for the express purpose of benefiting a single political faction. I understand and respect that you are not coming at this from a partisan viewpoint, but you are a unicorn in that regard. For partisan Democrats and Republicans, this is all about power and they are perfectly happy to destroy institutions while claiming to save them as long as they get a political advantage. This is another effect of our parties not being normal.
You mentioned uncapping the House which is something I strongly support, and you note that it’s not getting much traction. That’s not by accident or ignorance – this great and overdue idea gains no traction because it doesn’t gore one side or the other. Improving the system to promote actual fairness isn’t in the interest of the parties as presently constituted, so and idea like uncapping the House is ignored.
As long as the two parties in our binary system are not able to act as actual parties, our system will continue to have problems. Expedient “fixes” to correct some perceived imbalance won’t work. And fixing those problems or at least having the two parties agree to terms is impossible as long as the parties remain the aberrations they are. All the structural reforms you have long advocated for are impossible given the current state of the parties. Giving one side or another a short-term tactical advantage does change this and it doesn’t solve anything – in fact, it makes things worse because it incentivizes the parties to keep escalating, keep sacrificing institutions for transient political gain, and to avoid reform.
The actual divide you are referring to is urban versus rural, and representation by equal numbers of senators per state doesn’t even come close to capturing it effectively.
Let me guess — you’re a white male. What do I win?
@Jay L Gischer:
I’m not sure that it’s as much don’t want them to have a chance as it is don’t believe that it’s possible to give one. It seems to me that a big piece of conservative economic philosophy–and as a consequence American economic philosophy over all–is that conservatives see opportunity (and to some degree growth) as a zero-sum proposition. Giving a chance to someone else means that I have to give up mine. Every dollar of growth that goes into the pocket of another is a dollar that I have forfeited.
We also see this philosophy at work in the whole “we don’t have the money to pay blue collar workers more than they get now” thing. I’ve lost count of the number of times I’ve heard someone talk about how businesses can’t afford to increase working class wages. They don’t have the money. And yet capital and income keep moving up range on the scale just fine. Hmmm…
We aren’t doing economic development because we don’t believe in it anymore. There’s simply no money to be made in creating a bigger pie. All it’ll do is lower my profit margin.
@Andy: Interesting comment, and a worthwhile theory for examination except that
may well represent what the Republicans are trying to sell themselves as, it’s not what the product actually is. I would have hoped for better analysis, but to each his own.
@Andy: Good to see you back in the comment sectin and I appreciate the time you took to respond. There is a lot there to respond to and time is limted, so let me go to this:
Indeed, what I want is to have institutional reform that would lead to multiple parties, about which I have written over and over. The problem is: there is currently no pathway to those reforms.
You are correct: adding states and Justices does not solve the main problem but would only slightly move things in a corrective direction.
The point of this post in particular and one I wrote Saturday is that these are the only things that are actually possible at the moment.
Did you miss that whole Civil War dust-up?
Yes, the basic rules are the same. What has changed, rather substantially, is both overall population size and population distribution. This alters the way the mechanism works and the outcomes it can produce. It has evolved in a way that it is increasingly possible for popular vote/electoral vote inversions to occur. It also has changed the weighting of the votes of specific states as a result.
So, in fact, the system has changed.
The party system has also changed in ways that further intensify the sorting problem.
This fact, by the way, undercuts your argument that the Democrats just have to compete better. There is a plausible scenario that the Dems could win the popular vote for 4 or 5 million (I forget the exact number) and still lose the EV.
That’s a problematic system.
I would argue nominating Biden was exactly an attempt to do this.
I think, however, you over-estimate the degree to which a party can act in a way that would guarantee a substantially larger vote share. Or, perhaps more accurately, that is easier said than done. I think, too, you ignore the importance of partisan identification and the clear difficulty to get people to change teams.
This is especially true when the rules do not reward competitiveness.
BTW: I never said (at least I don’t think) that US parties aren’t normal parties. I have said that the nomination process is essentially unique and that combines that process with a number of other parameters and you get a strong duopoly that is incredibly difficult break.
I am honestly not sure why it would sound like that. I am speaking in the aggregate–which is in response to you speaking in the aggregate.
Sure, they may have any number of subjective self-identities. We are talking here, or so I thought, about voting. They vote very similarly and want, in policy terms, fairly similar things.
But, I am not sure how that supports your original point that started this back and forth:
You mean he’s a rich white male. The system was bad for your average white male, and terrible for poor white males, along with everyone else (well, probably okay for rich white females too — being rich tends to equalize things).
@Steven L. Taylor:
In terms of aiding the Democrats and slapping a band-aid on a gaping wound, I suppose one could say it is a corrective. But I think you overly focus on the theoretical benefits of that corrective while discounting the long-term effects. These measures don’t do anything to correct Democratic weakness in the EC over the long-term plus they establish a precedent that Republicans can and will take advantage of when they get the opportunity to do so. And at some point they will.
Except that they are not. Ultimately, there are only two ways that Democrats can eliminate their weakness in the EC. The first is the structural reforms that you focus on. On that score, we both understand that is not going to happen anytime soon, if ever.
The second option is for the Democratic party to change to be more competitive in the EC. The Democratic party working to be more competitive in the EC does not require any structural reform. Ending the filibuster, adding two more Democratic leaning states and packing the court are not the only options. And those options, even if successful, only give Democrats a temporary tactical advantage, while working to make the party more competitive in the EC would be more enduring. It would also give the Demcrats a much better chance of enacting structural reforms.
The desire to short-circuit this with expedient solutions is unlikely to work and will only make structural reforms more difficult.
Easier said than done compare to what? A party acting in a way to increase its competitiveness in the EC and the Senate is a thousand miles easier than any of the structural reforms you’ve repeatedly proposed over the years. Yes, it requires effort to expand the tent, build constituencies, and ensure everyone in the tent plays well together. Doing that is easier than any of your long-standing reform proposals, is not escalatory, provides a longer-term benefit to the Democratic party and doesn’t require destroying the legitimacy of the judiciary.
Yet this isn’t even discussed much less seriously considered.
And yet we’ve seen major demographics change teams over the past two decade. Party contituencies are not as set in stone. Partisan identification is at a nadir thanks to the parties’ narrowing their representativeness, which is the opposite of what they should be doing.
Sure, but population sizes and distribution are always changing. That is nothing new. And parties have adapted to those changes while still remaining competitive until recently.
The narrow focus on only structural problems as an explanation is sufficient to explain why there can be EC and PV mismatches and how easy it is, in a academic statistical sense, to generate those mismatches given various scenarios, but the structural argument doesn’t explain why one party – the Democrats – are consistently at a disadvantage when it comes to the EC. The structural changes in the parties themselves that weakened their leadership and coherence, along with sorting along ideological lines, were concurrent events with the present mismatch. That concurrence is not a coincidence. The structure of the system did not dicate that Democrats would become politically weaker in rural states and comparatively strong in urban areas.
Furthermore, overly focusing on structure implies that the parties generally and the Democrats specifically do not have any agency or responsibility for their current circumstances with respect to the EC and popular vote disparity. When quite obviously they do. The structural defects in our system (which you and I agree are problems in most cases) did not predetermine how the parties would sort themselves ideologically and in terms of policy and contituencies – the parties did that. And that sorting by the parties and the people generally is what determined the relative strength of each party in the various states which then determined the relative baseline strength in terms of EC and PV. Had this emergent process happened differently, the situations could easily be reversed today in which case we’d hear the GoP complaining about structure and the Democrats extoling the virtues of the EC.
Your arguments and proposed correctives reinforce this paternalistic view that parties lack agency, that the Democrats are victims of the system and completely unable to change their position without extraordinary measures.
I’m thinking back to previous discussions about the lack of coherence and leadership in the parties. This extends well beyond the flawed nomination process as Trump’s example amply demonstrates. A normal party would not let an outsider come in and rule it like a feifdom.
Parties used to have a centralized leadership to manage internal factions, build real coalitions and develop strategy to achieve specific ends. Those days are gone. The parties have no long-term strategy, no ability to manage internal factions and get them to compromise.
With open nominations and no party control of the platform by party leadership, parties become whoever they nominate. A Biden led Democratic party is fundamentally a different party than a Sanders led party would be. That Biden is the nominee and not Sanders thanks to a relative handful of moderate African American voters in South Carolina is illustrative of that.
The changes in our parties over the past three decades has done much more that expose and perpetuate structural imbalance in the EC – it’s turned them into de facto narrow and tribal parties with no overlap. If we were in a parliamentary system this would be fine, but tribal parties in a binary system is a recipe for disaster. The parties need reforming, badly.
And what specific change(s) would you recommend…
On the one hand: sure, attempt to increase your share of the vote.
But this remedy is not really a remedy at all–it is simply acquiescing to the fact that the D Team has to win the game game 3 points while the R Team can win with 1 point.
Telling the D Team that they simply have to play harder and score more points than the other team is a way to surmount the obstacle, but it is not a solution.
Especially when the game is congressional elections as well, and has direct effects on the courts.
Saying “play harder” is not a solution.
I think you are misunderstanding, or underestimating at least, the way the evolution of the distribution of the population has thrown the system out of balance.
We are using electoral vote totals that were fixes by law in the early 20th century when the House was fixed at 435 seats. Our population was ~92 million at that time and it was distributed quite differently.
I see. I wouldn’t say that makes US parties abnormal, but it does mean that they are not hierarchical. It should be noted that that they never were especially hierarchical, but were moreso as it pertains to presidential nomination prior to 1972.
And BTW, both parties are still large and coalitional. The thing that has changed is that they have become fully sorted ideologically.
The main way you change a party system is to change the conditions under which they compete. It is very much a structural problem.
The only change to the parties that could also change behavior would be to alter the nomination process, which is also a largely structural change.
Since the disparity between the EC and the popular vote is the result of structure. How do the parties have agency or responsibility for it? I am not following your logic.
Are you saying that if HRC had campaigned better in PA and WI we might not be having this conversation? Maybe, but that doesn’t change the structural problem. It would just mean that she was able to overcome it.
Overcoming an obstacle does not make an obstacle less of an hindrance.
Another thing about this that I find problematic: despite the fact that the Republican Party is the one that has been able to muster a popular vote win only once in thirty years, your response is that Democrats need to try harder? Does that not underscore the foundational problem here?
Minority rule in the White House
Minority rule in the Senate
In some years, even minority rule in the House
Minority rule in some state legislatures (Wisconsin being the most egregious example).
As such, I am not sure that “the mjaority needs to try even harder” is especially helpful.
I accept that as a practical matter, that may be all that can be done (and, again, I think that coalescing around Biden is the Democratic Party trying to do this), but you present it like it is a real solution, and I am not seeing it.
@Andy: Fair take but I think glosses over facts that strong, centralized parties are NOT what either Republican nor Democratic voters want. Each of these Party’s voters–voted against Party structures where their President and Congressional leadership were simply along for the ride. There can’t be Party Reform when voters like the Party the way it is.
Also, your analysis is only applicable assuming both Party’s are good faith actors in governance and competition. The Republican Party is not.
How are we supposed to try harder when the people we’d like to build coalitions with consistently vote against their own best interests in favor of political “team sports”? Dems tried to give red states an opportunity to give their citizens health insurance (and, long term, better health among the citizenry in general) and they were demonized for it. They’ve tried to increase the minimum wage, which would also be in these citizens best interest, and again…demonized for it. How, exactly, are we supposed to try harder?! It doesn’t matter what Dems do, the earth has been salted by decades of Fox News and now, Donald Trump is lighting that shit on fire and destroying any possible opportunity at bipartisanship. There is nothing Dems can do that will convince a current Trump fan that Democratic policies are actually in their best interest and meant to help them, in fact, a good portion of that base actually believes there’s a global Democratic cabal of baby-killers that steal children for their adrenochrome, or whatever the hell it is Q currently has them convinced of. How are we supposed to “work with” that?!
@Steven L. Taylor:
Look, I understand you desperately wish that elections were decided by a majoritarian popular vote and that you believe that is the only metric that matters when it comes to legitimacy and an ideal model for representation.
I don’t support the EC either, but the reality is that those are the established rules for politics, rules that haven’t changed in a very long time. Your counting “points” that don’t actually win the game, your counting points that you wish would win the game. Wishing that the rules were something other than what they are is the thing that is actually “not a solution.”
It’s like an NFL team with a really strong kicker wishing that field goals were worth 5 points instead of three. Imagining that you would have won if only those field goals had been worth five does not change the reality when the timer actually reaches zero.
The reality is that if the Democrats want win they need to win the EC. Denying this reality is simply foolish. Trying to avoid this reality with gimmicks like creating new states to create new EV’s and stacking the court won’t succeed.
I understand it perfectly well. Regardless of the balance in the system, the two parties compete in the same system, with the same math and the same rules. Each party understands the winning conditions for the Presidency. Each party has the ability to appeal to the whole of the American people in whatever way suits thems to win. There is no iron law that dictates the Democrats must operate at a disadvantage. The party has agency to compete for the EV’s needed to win. The notion that the cause of the Democrats’ weakness in the EC is entirely structural and has nothing to with choices the party (and the GoP) made over a long time is just not supported by the evidence.
The point isn’t’ to “try harder.” I don’t think the problem is a lack of effort, it’s a lack of focus and strategy.
The point is to play the game to win with the rules that are actually relevant and in force on the field, not play using imaginary rules.
That depends on what you mean by “solution.” If the Democrats want to win the White House and, to a lesser extent, the Congress and the Senate, then yes, it a solution for them to reach that goal. It’s obviously not a solution to many other things, including reforming government. But if the Democrats actually want to change the present system to make it more representative (as opposed to just giving themselves an advantage), then winning decisively under the current rules is a requirement.
What I find problematic is your support for actions that are specifically intended to give an advantage to one party while, at the same time, making all your long-term declared goals more difficult.
– Creating two more states, especially a rump like DC, make amending the Constitution that much more difficult and creates two more states that can invoke their rights regarding Senate representation in article V to block future efforts.
– It also directly attacks principled arguments you’ve been making for years about the outsize power of small states. Honestly, it will be hard to take any arguments about how unfair Wyoming is from anyone who supports the creation of what would effectively be a Democratic Wyoming in DC.
– Your proposals regarding stacking the court are problematic for similar reasons.
Why not? Besides, it’s not so much about avoiding that reality, but, rather, creating a new reality…
Those actions are a corrective for a system that already gives an advantage to one party…as for those long term goals, let’s face it, constitutional amendments to change the electoral college to a popular vote and to alter how many senators represent each state will never pass with enough votes to actually be enacted…
On the one hand, of course: those are the rules and if they want to win, they have to win playing that game.
My problem with your approach here is that you state (like above ” The most obvious way to prevent future disparities between the EC and popular vote would be for the Democrats to deliberately become more competitive in the EC.”) that winning this way is a solution to the problem. It isn’t a solution at all, it is just a statement of reality.
That’s fine, but winning under those conditions doesn’t “prevent future disparities” is simply means winning despite the disparities.
It is, basically, suck it up and do better.
You aren’t wrong, save presenting this as any kind of solution.
I am not avoiding anything. I am stating that new states are better than nothing and that expanding the court is the only way I can see to overcome the disparity on the Court created by the EC itself.
I remain open to reassessing my position here, but I am not sure how these moves make my long-term goals more difficult (or less difficult).
A fair point. But the whole point of the post is practicality. What can actually be accomplished.
If we can’t just do the logical thing and elect the president via popular vote, then a Dem counter-balance to Wyoming would appear to be the best that can be done. This is hardly my ideal solution, rather obviously.
Again, the “where I am” of the post title is trying to figure out what actual changes can be instituted.
The funny thing is that people usually tell me I am being too impractical 😉
The first thing I would do is stop assuming that you know what is and isn’t in someone else’s best interest and suggesting they are stupid or brainwashed for not supporting your policies. It’s hard to earn allies when you’re condescending and not willing to listen.
@Steven L. Taylor:
I didn’t mean to suggest it as a solution to prevent further disparites, but as a solution to prevent Democrats from always being on the short end of them.
The system is what it is. We both know the possibility of real reform isn’t coming anytime soon. Yes, Democrats should suck it up and find a way to win the EC or at least be more competitive.
And I think things are moving in a more positive direction for Democrats. A lot of formerly red states are becoming more blue. Again, the Democratic EC weakness is not an iron law that will persist forever absent structural reforms or the gambits that are the subject of this post.
I could be wrong, but I think adding more states and enlarging the Senate will make reforms more difficult because it increases the number of interested parties. Wyoming and DC (along with the other 3 EV states) will likely ally with each other against the big states. Creating more of them makes it more difficult to convince them that they should cede their Senate representation.
Similarly, since changing the Constitution requires consent of 3/4 of the states, adding more states could make this more difficult because more legislatures have to adopt the changes.
Admittedly this is all theoretical at this point, especially considering these questions are unlikely to be addressed anytime soon. So on second thought, my criticism of the difficulties is probably unwarranted or at least overconfident.
Thanks as always for the conversation and debate.
These are fair points.
Although I am not convinced that small states would band together to keep the EC, as voting for the NPV pact indicates. And you make a valid point about the amendment process, although any amendments seem incredibly unlikely.
As such, a handful of EVs and Senators might be of more usefulness for other changes to take place, which is my basic point.