One of the biggest developments in politics last week had nothing to do with the coronavirus pandemic, or the collapse of the economy, or protests for racial justice, but it could have a profound impact on the resolution of all three—and on the larger question of whether America will be a democracy or autocracy in the long run. It was a response from Sen. Chris Coons (D-DE), who sits in Joe Biden’s old Senate seat, to a question about what Democrats will do if Republicans remain bent on scorched-earth opposition to Democratic governance.
“I will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn,” Coons said. “I am gonna try really hard to find a path forward that doesn’t require removing what’s left of the structural guardrails, but if there’s a Biden administration, it will be inheriting a mess, at home and abroad. It requires urgent and effective action.”
The blocking mechanism at issue is the Senate filibuster rule, which allows the minority to impose a three-fifths supermajority requirement on nearly all legislation. If, optimistically, Democrats enter the new year with control of the presidency, the House, and 53 Senate seats, after winning the election in a landslide, Republicans would still have easy veto power over basically every Biden initiative, whether to suppress epidemic disease, revive the economy, or reform policing. The catch is that Democrats could eliminate this antidemocratic rule, so that a simple majority of senators can pass legislation, with just 50 votes. On the first day of the new Congress, before Biden has even been sworn in, his Senate allies could dramatically expand the horizons of his presidency, giving him (and themselves) the power to govern around Republican obstruction, rather than be confined by it.
There should be no dilemma here, and many Democrats have advocated abolishing or reforming the legislative filibuster for a long time. Coons’s statement is meaningful because he’s a reluctant convert. Senate Democrats are divided over the filibuster question less along lines of political vulnerability (Coons won his last election by over 13 points) than between those who see the world as it is and those who see it as they wish it was. His change of heart, and his explanation for softening, suggest the latter category of Democrats has begun to accept reality: Leaving the filibuster intact won’t generate bipartisan consensus where none exists, but it will make the difference between Biden’s presidency failing, with all the collateral damage that would create, and standing a real chance of success.
The challenge now is to convince these same Democrats that abolishing the filibuster is necessary, but insufficient—it’s a key that will unlock a world of new possibilities, but won’t on its own protect Biden from right-wing sabotage, or rescue America’s endangered democracy. Harvard political scientist Ryan Enos wrote recently that, “When Trump loses in November, America needs to grapple with the fact that it was not our constitutional system, but Trump’s own incompetence that preserved our democracy. We might not be so lucky with the next would-be authoritarian.” This sentiment is widespread in liberal circles, mostly as a prompt for discussing civil service, ethics, campaign-finance, and other reforms that would better insulate the government from authoritarian corruption. These kinds of reforms are important, and may even receive bipartisan support in an environment where the president is a Democrat and Republicans are trying to cleanse the Trump taint from their party. But they are only second-layer protections, tools better suited to protecting the country should another authoritarian come to power than to closing avenues of power to authoritarians in the first place.
Trump has exploited weaknesses in our laws, but he is more importantly a product of minoritarian powers that should be illegitimate in an advanced democracy. Trump broke the law to win the 2016 election, but he was only successful because our system allows the popular-vote loser to ascend to the presidency, and the same story is likely to be true if he somehow wins re-election. But beyond the well-understood anomaly of the electoral college, Trump also benefited from a high background level of antidemocracy in the years leading up to his election. Trump is the second Republican president in a row to win the presidency while losing the popular vote, and is on pace to be the second Republican president in a row to bequeath his successor a nation on its knees, pseudo-governed by a rearguard of judges who never should have been appointed, legislatures gerrymandered to preserve Republican-minority rule, and Republican senators who represent a minority of the population.
Under more democratic conditions, Trump wouldn’t have won even with a structural advantage in the electoral college. Absent the filibuster, President Obama would have been able to secure as much stimulus as the economy needed in 2009, instead of having to outsource that determination to swing-state Republicans. A rapidly improving economy would have limited Democratic losses in the fateful 2010 midterm, which allowed Republicans to gerrymander Democrats out of legislative power for the better part of the decade. It might even have left material conditions in November 2016 stronger than they were, which would have generated political dividends for the incumbent party.
Trump’s electoral college margin was extremely narrow and thus overdetermined. Trump critics typically cite this fact to assign significance to oddities unique to the 2016 election—James Comey, Russian interference, the press obsession with Hillary Clinton’s emails. But we can extend that very logic to the ambient conditions our roiling crisis of democracy created. A Supreme Court that should not have been under conservative control gutted the Voting Rights Act and left millions of disaffected people stuck in a health-care coverage gap. Gerrymandered swing states exploited right-wing control of the court to pass a variety of voter-suppression laws. Had the citizens of Washington, DC, Puerto Rico, and other American protectorates been granted political representation, it would have diluted the extraordinary overrepresentation rural whites enjoy in Congress, and, thus, Republican power to sabotage Obama.
The easiest path to authoritarian power after Trump won’t be for Republicans to reprise corrupt alliances with foreign autocrats, but to use these same antidemocratic powers—now more deeply entrenched—to create conditions that mobilize the electorate against Democrats. And the way for Democrats to stop them is to take the antidemocratic powers away.
That can’t be done without abolishing the filibuster’s supermajority requirement, but it also can’t be done unless Democrats commit to passing a broader pro-democracy agenda once the filibuster is gone. They can grant statehood to DC and Puerto Rico, at least for starters, they can pass voting-rights and anticorruption reforms, similar to the ones that House Democrats included in H.R. 1. Perhaps most importantly, they can add seats to the federal judiciary, including the Supreme Court.
Court reformers have recently appealed to Democrats to expand the judiciary as a matter of basic institutional maintenance. Because judgeships are lifetime appointments, the judiciary lags the elected branches in terms of representational fairness, and unless Congress grows their ranks, disproportionately white, male judges become swamped by growing caseloads making equal justice a demographic and logistical impossibility. These are perfectly valid bases for adding seats to federal courts, but Democrats shouldn’t hide from the fact that expanding the courts is the only way to undo the corruption that allowed Republicans to seize control of them in the first place. Senate Republicans refused to confirm Obama nominees for the final two years of his presidency, and stole a Supreme Court vacancy outright. The president who filled all of those vacancies lost the popular vote and is only president by dint of crimes that allowed him to sneak through the backdoor of the electoral college. Republicans have been amazingly open about the fact that they embraced mass-scale corruption and depravity as a price to pay for stacking the courts for a generation. Apart from the fact that democracy can’t exist without consent of the governed, Democrats should add seats to the courts to complete the morality play: The only fitting end is to prove to them it was all illusory—that they sold their souls for nothing. That would be poetic justice, but it would also serve as a reminder to future autocratic parties that illegitimate power grabs can and will be undone.
The fact that Trump has made fixing these interlocking injustices all the more urgent might even make the politics easier. Republicans will raise holy hell about any unilateral Democratic effort to make American democracy more democratic. But if Trump leaves office after one term, widely loathed and a historical failure, they will also be cross pressured by a desire to make a persuasive break from him. They will have an easier time convincing the public that Democrats have cooked up shady pretexts to grab power if Democrats pretend they aren’t motivated in part by diluting the power of Trump loyalists who should never have been seated in the first place. De-Trumpifying a regime that the country overwhelmingly regrets might actually be an easier proposition to sell than the abstract democratic principles that will be advanced in the process.
Only after taking steps like these will Biden’s substantive agenda stand any chance of becoming and remaining law. If Democrats don’t reclaim control of the Senate, Biden will be at the mercy of Republicans from day one, and they will leave the country smoldering as a political strategy. If Democrats win a governing trifecta, but don’t abolish the filibuster, the story will be little different. If they abolish the filibuster but don’t offer statehood to all citizens, centrist Democrats will water down Biden’s agenda. If they pass an agenda of any kind, watered down or not, but don’t fix the courts, his legislative and regulatory accomplishments will only survive until the Roberts Five strike them down. It took two short years after the abysmal failure of the George W. Bush administration for a Republican Party that should have been discredited for a generation to roar back to power, and it was only possible thanks to a campaign of lockstep resistance to Democratic efforts to fix the damaged country the Obama administration inherited. Preventing history from repeating itself, but with a more militantly antidemocratic Republican Party lying in wait, will require Democrats to do whatever it takes to give voters a reason to continue denying Republicans power. At the same time, our collective ability to fight climate change, coronavirus, economic and racial inequality—to do anything big, together, on a national scale—will grow in proportion to the steps Democrats take to flatten the playing field of our system of government. We should expect them to take every step they can.
