thoughts on constitutional hardball and democratic reform
This week, a large number of prominent progressive politicians and commentators have called for high-level institutional change. Here's Representative Khanna proposing an expanded Supreme Court and term limits for Justices. Here's Michael Cohen agreeing that Court packing should be a top priority for Democrats. Here's Lee Drutman, Mark Copelovitch, and Perry Bacon talking about systemic reform. And here's Kamala Harris agreeing, and also proposing statehood for DC and Puerto Rico.
Jonathan Bernstein has a concise distillation of what I take to be the modal progressive view, which he calls "a democracy agenda" for 2029. If Democrats control Congress and the presidency, they should: partially abolish the filibuster; pack the Supreme Court; pass a new VRA; pass national gerrymandering reform; grant statehood for DC and Puerto Rico, and make a variety of executive branch reforms to reel in the excesses of the Trump administration.
I'm decidedly mixed on all of this. Some are are undoubtedly good ideas that would, on balance, improve the quality of American democracy. But a lot of it is just constitutional hardball for the purpose of short-term policy gain or partisan power consolidation. I am decidedly frustrated by the increasingly-prevalent belief on the left that the Republican party is illegitimate, and therefore all sorts of extreme measures can be excused.
This can get quite messy, but here's a rough shorthand test: do you favor instituting your reform when the other side is in power or will otherwise benefit, or only when you are/will? If it's the latter, that's a good sign that it's not a neutral reform, and likely to be productive in a non-partisan, democracy affirming sense.
Gerrymandering reforms, of all sorts, pass this test. I'm in favor of proportional representation as a way to just put an end to the whole business and parsimoniously improve racial voting dynamics, but I'm open to other ideas. Bernstein suggests federal legislation to either ban partisan gerrymanders or at least restrict redistricting to once a decade. Both of those are decent neutral ideas that would at least solve the state-level stag hunt race to the bottom and keep things from getting worse.
Court packing fails this test, badly. I understand why progressives have latched onto it in the wake of a conservative Court making so many decisions that haven't gone their way, but this is pure constitutional hardball that is likely to unleash more problems than it fixes. Everyone who proposes it tends to qualify it with an apology, and then pivot to an explanation that Republicans have forced their hand by undermining democracy in various ways. Even stipulating to that, this would be destroying the village to save it. Other more-neutral court reforms, such as term limits or appellate roster rotation, strike me as much better.
Statehood. I wrote my dissertation about statehood, and I favor statehood for Puerto Rico on the merits. Open and shut case. I'm less certain about DC statehood per se, but I certainly believe DC residents should have full representation in Congress. I do, however, get very nervous about partisan statehood moves. It's the ultimate form of constitutional hardball, and had a very destabilizing effect on politics in the 19th century. In part because, in my view, the Framers made it far too easy to add states.
I'm certainly on the record favoring a wide variety of executive branch reforms, and I think they pass the basic test. I more or less support both the Congressional Power of the Purse Act, the Protecting Our Democracy Act. Unfortunately, these reforms tend to run into partisan headwinds as soon as the White House is captured by co-partisans. Too many people who still think getting their man/woman in the office is the solution to the problems of the presidency. I doubt a 2029 Democratic trifecta would behave differently than they did in 2009 or 2021, when they mostly passed up the opportunity to reform the executive.
Filibuster reform is largely a conduit to doing these other reforms. I have traditionally been a modest defender of the filibuster, and though I don't think it's worth keeping in it's current form, I do still think we should search for a middle ground between the super-majority Senate a a complete majoritarian one. My main reservation about filibuster abolition is a systemic one; it's going to greatly increase the power of the presidency to remove another veto point from Congress. The instrumental merits of ditching the filibuster to achieve other reforms should be weighed against this reality.