The Anti-Entrenchment Agenda

Prospect illustration, photo by J. Scott Applewhite/AP Images

This article appears in the Summer 2019 issue of The American Prospect magazine. Subscribe here.

Two anxieties are currently driving American politics. On the right, the anxiety is about the demographic and cultural trends favoring Democrats. People of color represent only 21 percent of Americans born before 1946, but they amount to 44 percent of millennials—and, according to a Pew survey, 57 percent of millennials place themselves among liberals, while only 12 percent side with conservatives. Election by election, more liberal voters are coming of age, while more conservatives are dying off.

For decades, the right has been fighting cultural and political change and the demands of women and minorities. Now panic has set in among conservatives as they realize they are losing the future.

That anxiety has fed the obsession with immigration and increasing radicalism on the right—the willingness to support Donald Trump in the first place, and to protect him as president; to suppress the votes of minorities; and to bar the Dreamers and other immigrants from gaining the rights of citizens. Fear of future majorities is what is driving the Republican effort to pack the federal courts with right-wing judges who can be counted on to limit Democrats in office.

The second anxiety driving American politics is a response to the first—a growing anxiety among liberals that the power of the right may get locked in. Conservative power may become entrenched in ways that make it exceptionally difficult for popular majorities to reverse. Control of two governmental institutions in particular, the Supreme Court and the U.S. Senate, threatens to limit progressive possibilities. As a result, liberals are now thinking about reforms that could help rebalance institutional power. 

In the 1990s, many of us were talking about an “emerging Democratic majority.” It isn’t emerging anymore; Democrats already have a national majority. They have won the popular vote for the presidency in six out of the last seven elections, going back to 1992. If not for the Electoral College, the entire history of the past two decades would be different. The Senate is a similar story. According to calculations by Stanford political scientist Jonathan Rodden, the Democrats have won more votes than the Republicans in 11 of the 15 Senates since 1990 but controlled the Senate only six times. If majority rule had determined control of both the presidency and the Senate, there would be a liberal majority on the Supreme Court too.

Remember how Republicans in the 1960s claimed to represent a “silent majority”? Democrats today are a stymied majority—and not merely in the House of Representatives. What is really stymieing Democrats is the structure of institutional power in America. Three distinct challenges confront them.

The first is the entrenched power of concentrated wealth, magnified in recent decades by increasing economic inequality.

The second is the aggressive use of political incumbency by Republicans to extend and increase their control through such means as voter suppression.

The third consists of the advantages that Republicans derive from the structure of government institutions at a time when Democratic voters have become concentrated in cities and in the most urbanized states. The geography of partisan support is closely related to America’s racial and cultural divisions, and it has skewed not only the Senate but also the House and state legislatures in Republicans’ favor.

Each of these three distinct sources of conservative power requires a different set of responses.

CHALLENGE #1Rebalancing Power in the Market. Liberals have generally thought about economic and social policies from the standpoint of their first-order effects: whether they help guarantee rights to security and freedom and ensure a widely shared prosperity. In an ideal world, there would be no need to think about the consequences for the distribution of power. In practice, there is.

Fortunately, liberal policies can be dual-purpose, serving both primary interests in rights and well-being and interests in power and political equality. As a recent report of the Roosevelt Institute argues, progressive taxation can serve both as “a deterrent against extraction and wealth hoarding” and as a means of limiting the outsized political sway of the superrich. A revived antitrust policy can reduce “firms’ ability to exploit competitors, consumers, and workers” as well as their ability to manipulate public policy. Empowering workers can enable them to claim a fair share of the economy’s gains and to offset corporate political influence.

The underlying premise here is that policy is necessarily about power, and Republicans have acted more strategically on the basis of that understanding. Democrats haven’t given the same priority to strengthening unions that Republicans have given to weakening them. Even as industries became more concentrated, Democrats paid little attention to antitrust. Changing corporate governance wasn’t even remotely on the public agenda until Senator Elizabeth Warren proposed requiring corporations with more than $1 billion in revenue to obtain a federal charter and take into account the interests not just of shareholders but of all stakeholders, including customers, workers, and local communities. Warren would also give employees 40 percent of the seats on corporate boards and require that political contributions be approved by at least 75 percent of a company’s directors and shareholders.

But since rebalancing private power requires political power, meeting this first challenge takes us to the other two.

CHALLENGE #2Countering the Abuses of Incumbency. Self-enrichment and self-entrenchment are the elementary forms of political corruption, and Trump-era Republicans are doggedly pursuing both. Voter suppression, partisan gerrymanders, the inclusion of a citizenship question in the 2020 census, and the failure to act on election security after Russia’s interference in 2016 are all aspects of the politics of entrenchment.

Fighting voter suppression today primarily requires its opposite—voter mobilization, beginning with the engagement of a young and diverse generation that is often skeptical and despairing about politics (see Paul Taylor, “The Reluctant Majority,” in this issue). Commitments to sustained, on-the-ground field operations and community organization have become all the more necessary since the Supreme Court’s Shelby decision limited the options for going to court to vindicate voting rights.

Like its decisions on voting rights, the Court’s rulings on campaign finance also offer little encouragement for federal litigation in pursuit of political equality. But reformers have had success at the state level with lawsuits as well as referenda. Pennsylvania’s Supreme Court overturned the Republican gerrymander of congressional districts in time for the 2018 election; Michigan voters adopted an independent redistricting commission.

Yet state-based efforts have their limits. After Floridians passed a referendum to restore voting rights to ex-felons, the Republican legislature effectively reversed that decision by requiring ex-felons to pay off fines and fees before regaining their eligibility to vote. Ultimately, there is no substitute for federal power, and that requires confronting not just the machinations of incumbents but the machinery of government that perpetuates Republican power.

CHALLENGE #3Rebalancing the Constitutional System. A sharply increased urban-rural divide in voting now affects the working of America’s representative institutions. The effect on the Senate is obvious since the more rural states are disproportionately white and Republican; the effect on the House and state legislatures is also substantial but needs some explanation. Like Britain and others of its former colonies, the United States uses single-member districts for legislative elections, as opposed to proportional representation. In these elections, Jonathan Rodden shows in his new book Why Cities Lose, political parties whose voters are densely clustered in cities tend to win a smaller share of seats than their share of votes. As it happens, the parties that lose out are all parties of the left.

The Democrats are now in this position, which enables the Republicans to control state legislatures and sometimes the U.S. House even while losing the overall popular vote (as they did in the House after the 2014 election). Proportional representation would correct this bias. But although nothing in the Constitution prohibits proportional representation in House delegations, much less in state legislatures, the idea has received little support or attention. So I concentrate on the Senate, which poses the more immediate threat to majority rule and progressive policies.

Senate elections today are overwhelmingly predicted by a state’s partisan lean. As a result, Thomas Edsall writes (citing political scientist Larry Sabato), Republicans are favored in states with 46 senators, Democrats in states with 40. Republicans therefore need to win only five seats in competitive states to control the Senate, while Democrats need to win eleven. What could even up that competition?

No aspect of American government is more firmly entrenched in the Constitution than the Senate’s distribution of seats: Article V rules out any amendment altering the states’ “equal suffrage” in the Senate. But there is a partial workaround: the admission of new states.

Democrats can justify the admission of two new states, the District of Columbia and Puerto Rico, on the inherent merits. Both are anomalies: jurisdictions with substantial populations of American citizens denied full rights of political representation. Admitting both D.C. and Puerto Rico also has a compensatory rationale: The Senate today grossly underrepresents African Americans and Latinos because they are concentrated in highly urbanized states. According to calculations by Michael Ettlinger, African Americans have three-fourths the voting power of whites in the Senate; Latinos have just two-thirds.

Continued urbanization will likely increase this disparity. By 2040, according to demographic projections, 30 percent of the population will choose 70 percent of the Senate. If that 30 percent were chiefly black and Latino, I have no doubt the constitutional obstacles to changing the Senate could somehow be overcome. But, as things stand, the 30 percent will likely be predominantly white; admitting D.C. and Puerto Rico would help correct that bias.

Although Republicans would complain about the partisan consequences, they set the precedent: From the 1860s to the 1880s, their party carved up sparsely populated western territories into reliably Republican states to give themselves more senators.

Republicans also set the precedent for another workaround, in this case for dealing with the Supreme Court: In the 1860s, they changed the size of the Court three times to ensure Republican control—adding a seat under Abraham Lincoln, shrinking it under Andrew Johnson, then re-expanding it under Ulysses Grant. To be sure, Franklin Roosevelt is supposed to have failed when he tried to expand the Court in 1937—except that the Court then changed course, and the New Deal proceeded.

Increases in the number of states and Supreme Court justices would be examples of “constitutional hardball,” the term coined by Harvard’s Mark Tushnet for measures that are clearly constitutional, though outside recent norms. Democrats would not be thinking about hardball if Republicans had not already begun playing it, as they did when they refused even to hold hearings on Barack Obama’s nomination of Merrick Garland to the Court. Contrary to those who worry about violating political norms, Tushnet responds that if the Democrats added two justices to make up for Garland, it would establish a new norm: “You can’t steal a Supreme Court seat and expect to get away with it.”

If, despite the obstacles, Democrats are able to win control of Congress and the White House in 2020, they will have to decide whether to eliminate the Senate filibuster and play hardball. It will be a weighty decision. If they go ahead, the priority should be to admit D.C. and Puerto Rico, which would then make it easier to expand the Supreme Court, though that is better thought of as a last resort if, as in the 1930s, the Court acts in a partisan way to strike down Democratic initiatives.

A new balance in institutional power in both the market and government would only level the playing field, not entrench Democrats. These are all measures—including proportional representation for the House and state legislatures—that would bring the government closer into line with the will of the majority of Americans. And if democracy benefits Democrats, that’s nothing for them to apologize about; rather, it ought to cause Republicans to worry about the course that they have taken. Republicans didn’t have to appeal to xenophobia and white panic; they could have sought to make themselves the party of a rising majority instead of a declining one.

For Democrats, the immediate anti-entrenchment priority is to prevent Trump from gaining a second term when he could increase the Court’s right-wing majority, consolidate control of the executive branch, and use federal investigative and prosecutorial powers to pursue his enemies more aggressively. America’s rising majority has been stymied, but a second term for Trump has even darker possibilities of entrenchment.

Note: An earlier version of this article incorrectly stated that Democrats had won more votes than Republicans in all 15 Senates since 1990. The corrected number is 11 of 15. 

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