Balkinization: Practical and Idealistic Themes in Political Reform

Practical and Idealistic Themes in Political Reform

David Super

Sandy Levinson, my former teacher whom I respect enormously, reads my post on the increasing opacity of the congressional appropriations process and asks whether I would agree that Congress has rendered itself illegitimate. He goes on to ask what is to be done, given my opposition to convening a new constitutional convention under Article V. These are thoughtful and thought-provoking questions that deserve a response. As I pondered my answer, it occurred to me that a similar theme runs through the Article V debate and other contemporary visions of progressive reform. This post attempts both to respond to Sandy and to sketch those broader themes.

First, although I find Congress frustrating and sometimes reprehensible – certainly in its failure to act on climate change but in many other areas, too – I do not see it as illegitimate. Indeed, to a first approximation, this country’s electorate has the Congress that it deserves. We are a sharply divided nation, with roughly equal numbers of progressive and conservative voters. In a system built to require some supermajority to enact legislation, it makes sense that we can change very little of substance.

Much of the public disdain for Congress reflects voters on each side of this division refusing to acknowledge the existence of an equally numerous group on the other side – and hence imagining that Congress is obstructing the will of a “clear sensible majority” of people like themselves.

For example, progressives seem never to tire of pointing out that Hillary Clinton won more popular votes than did Donald Trump. Narrowly speaking, this is true – but very right-wing candidates (and Gary Johnson and Evan McMullin were both very right-wing) won slightly more votes than progressives. Moreover, a small but clear majority of the electorate voted for someone other than the only candidate who could keep Donald Trump from the White House.

Similarly, progressives celebrate Democrats’ increased share of congressional votes in the 2018 mid-term election. They fail to note that a substantial portion of those gains result from a greater number of serious Democratic candidates running in – and losing – solidly Republican districts while fewer serious Republicans took fliers at deep blue seats.

When I travel to red states to oppose an Article V convention, I hear the same thing, in reverse: Republicans denying that roughly half of the country genuinely supports policies that they would like to attribute to small coastal elites.

I firmly believe that the Right’s social, economic, and environmental positions put it on the wrong side of history, but it is demonstrably not on the wrong side of much of the current electorate. Given the current electorate's views, the consistently progressive Congress producing legislation that Sandy and I could welcome would be much closer to illegitimate than the deadlocked Congress we actually have.

My response to Sandy’s second question – what is to be done? – flows from my response to his first. The only remedy to the current situation is to change the hearts and minds of a significant fraction of the electorate. This involves both changing their approaches to crucial issues and changing the ways we form coalitions. This second point is crucial to understanding the seemingly positive results of issue polling. On some important individual issues, the majority of voters favor progressive positions, but some of those progressives are also fiercely anti-abortion and hence unwilling to vote for Democrats who would espouse their positions on other issues. Other support for progressive positions comes from voters whose white identity makes them strongly prefer the Republican Party. This identity makes them easy prey for pseudo-populists like the current President.

The (still incomplete) transformation of attitudes toward LGBTQ people, propelled in part by people coming out to their friends and relatives, is an example worth noting of how attitudes can change, but it also is a difficult one to replicate. Rep. Alexandria Ocasio-Cortez’s Green New Deal – seeking to heal the age-old disconnect between redistributionists and environmentalists – is another exciting effort to broaden the numbers of people feeling a stake in progressive policies. And I was heartened when, after the 2016 election, several of my best students at Georgetown and Yale shelved their plans to move to Washington in favor of returning to their home states to become active in politics there.

But as we should have learned by now, no clever lawyers’ tricks will sustainably transform us into a more progressive, or environmentally responsible, nation while about half of the electorate is prepared to vote for, or fail to vote against, someone like Donald Trump. The continued search for that legalistic holy grail is distracting at best and dangerous at worst.

Enthusiasm for an Article V convention seems a manifestation of a broader habit of imagining, and wanting to reach, a halcyon zone free from politics as we know them. For many non-lawyers, that idyllic zone is the courts, particularly the Supreme Court. Friends of great political sophistication – people who can accurately predict congressional votes on the subtlest of amendments – repeatedly ask me “how can the Court do that?” and become indignant when I respond “because it has five votes.”

Congress, remarkably, can seem that zone of dispassionate decision-making, at least on large issues, for some who do not follow it carefully. Many were shocked and surprised that the Senate never came close to holding hearings on Merrick Garland’s nomination to the Supreme Court or that it could conduct such a superficial investigation into the allegations against Justice Kavanaugh. People involved with numerous federal programs frequently ask me “how does Congress expect us to do our jobs with this level of funding?” and refuse to believe that estimates of programs’ needs play only a small part in the appropriations process.

My superficial impression is that international law (or particular organs of international law) and macroeconomics (or the Federal Reserve) are other places that some non-experts falsely endow with trans-political Solomonic wisdom.

The search for a realm above our current political ugliness seems to drive enthusiasm for an Article V convention among both progressives and many sincere conservatives. Proponents have adroitly seized on this romanticism, calling it a “convention of the states” and suggesting that it is a place where concerned citizens from across the country come together in a non-partisan spirit of good will and respect to solve problems that politicians cannot. Yet the campaign for an Article V convention is anything but a model of candor and respect for democracy.

Article V enthusiasts assume that the ordinary rules of politics will somehow be suspended for a constitutional convention, yet they never even begin to explain how that would occur. Without a compelling reason to believe that a convention will rise above politics, we have a clear moral obligation to analyze the likely political consequences of what we advocate.

And for progressives, the answers about an Article V convention are not pretty. Currently, thirty state legislatures are controlled entirely by Republicans. Surely they will appoint solidly Republican delegations to any Article V convention, likely composed of their own most ambitious members. Even if those delegates somehow are not ideologues, they will be beholden to moneyed interests whom they hope will bankroll their future campaigns. With more than two-thirds of the states gaining more power under a one-state-one-vote system, it is difficult to believe that the convention will agree to award states votes based on population. Even if it did, however, unified Republican legislatures represent 59% of the states’ population. Moreover, many of the modest laws we do have restricting the role of money in politics might not apply in the unfamiliar setting of an Article V convention.

We should not succumb to the response that things are so bad that we must try something, anything, even without a plausible reason to believe it will make things better. History abounds with truly horrible, anti-democratic leaders who nonetheless proved not to be the worst their countries had to offer. “It can’t get any worse than this” is almost never true and almost always irresponsible.

We can and must take back our country. But we have to do it the hard way: by winning over our fellow Americans one at a time. There is no magic bullet nor, in a democracy, should there be.

@DavidASuper1

Posted 2:13 PM by David Super [link]