The Political Crisis, January 2019 update

We’re about two years into the nightmare reality of Donald Trump’s presidency. An opposition party is about to take charge of the US House, breaking up the unified Republican control of Congress which has buttressed said nightmare reality. This seems like an appropriate time to take stock of the larger situation.

For better or for worse, though, I find that I have already written a lot of what I might say at this point. Overall I think my long-read assessment from late 2016 remains valid, particularly the emphasis on Trump as a symptom of the crisis more than its cause. My first thoughts on the midterms seem like they cover their significance fairly well: while they offer a measure of relief, it seems like mostly relief of symptoms. They don’t even solve the crisis—I think everyone anticipating that Trump is going away soon will be disappointed—let alone constitute solutions to the deeper long-term problems.

In terms of deeper solutions, the best evidence that I can see is the progress in overcoming gerrymandering. In the same year that Democrats miraculously won a House majority considered impossible under the 2011 maps, reformers made substantial progress toward a 2021 redistricting that is more fair rather than less. That’s meaningful, and positive.

Unfortunately this update also includes a number of cautions against optimism on that basis. As in the larger picture, it feels like progress to date has forestalled catastrophe in redistricting, but has not won the struggle. Detailing this could really be a separate post, so for the time being I will emphasize the serious threat of recent gains being reversed by the worsening situation in the federal judiciary.

On congressional redistricting, Republicans have committed to a claim that essentially creates a right for state legislatures to gerrymander as unfairly as they wish. The significant partial holdout of Justice Anthony Kennedy is now gone from the Supreme Court, replaced by a raving, snarling, partisan political operative. Any hesitation which Chief Justice John Roberts might feel about reversing the popular demand for reform, which has only grown since he joined a four-vote minority against Arizona’s reform a few years ago, could becoming irrelevant as soon as one of the court’s Democratic appointees succumbs to advanced age.

As it stands, the prevailing opinion of the partisan appointees who are packing the federal judiciary is that a new round of extreme gerrymandering is not just permissible but the fundamental right of state legislative majorities—many of which are elected from districts also rigged to favor Republicans. The most obvious limitation to that opinion is the Constitution’s explicit grant to Congress of supremacy in redistricting rulemaking. Commendably (if a decade too late) House Democrats plan to propose nationwide redistricting reforms in HR1. Unfortunately, the Republican desire to perpetuate gerrymandering still prevails in both the White House and in the Senate, the second one looking to me like the much bigger long-term problem.

The 2018 election results suggest that Democrats certainly can win back the presidency in two years—speak not of guarantees but it’s certainly possible. But they also suggested that winning back the Senate will be more difficult. In a “blue wave” year, Republicans still increased their Senate majority, and the fact that “it was a bad map for Democrats” fails as consolation because there aren’t really good Senate maps for Democrats in the foreseeable future.

Yet the larger problem is that the 2018 election underscored how Republicans have committed themselves to an approach which is fundamentally different from the large-D Democratic approach, and one at which they can win even while they lose on a small-d democratic basis.

I don’t think it was really an accident or an anomaly that Republicans not only gained in the Senate while losing their majority in the House. Various analyses have suggested that Trump’s late-October “invasion” scare was a net minus for Republican House candidates, but probably won a few extra statewide contests, possibly including a Senate race or two. As with so much having to do with Trump, what may look like a berserk outlier is quite compatible with the trend of Republican politics for decades: Republicans are not really trying to win a popular mandate, they are trying to win states and courts. They are succeeding.

Crucially, even if this involves a tradeoff, it’s one which their larger approach can easily afford. Losing the House in order to win the Senate and judiciary is an obstacle to governing at all, let alone on a democratic basis, but the Republican Party is no longer a project for either. The contemporary Republican Party is essentially a top-down insurgency, and fundamentally opposed to governing, as interference with the power of capital to buy whatever it wants.

You don’t really need to make laws for that, as Republicans demonstrated over the past two years. Their main legislative efforts were a big regressive tax cut, and an attempt to tear down the Affordable Care Act; significantly, the latter effort floundered in large part because they could not agree among themselves on making any replacement policy. That isn’t what they do anymore. Meanwhile executive power and rigged courts continue the effort at destroying the ACA, along with laws and regulations which capital finds bothersome, with no need for any legislating. Much of the federal government is also shut down entirely right now.

The pattern through all of this is not coincidence.

The Republican Party has committed itself to an anti-governing mission for which they really need only judges (appointed for life and entirely unaccountable to voters at the federal level), a Senate caucus ranging from 50 to 41 members (all but guaranteed by the average partisan lean of the present 50 states), and an occasional Republican president (a possibility which the undemocratic Electoral College will long preserve against popular rejection).

So long as they have these things, they really can’t lose, and that matters enormously when they are playing not to lose instead of to win.

Democrats have, or ought to have, a fundamentally different mission which does not seem achievable so long as Republicans are playing to all of the most nondemocratic features of our political structure and those features remain unreformed. The mission of Democrats, or at all events of the left, is to shift society toward fairness at the expense of narrow privilege. A sabotage approach cannot accomplish this, certainly not in a peaceful or long-term way.

Democrats need to make new laws. Democrats also need to sustain those laws, from the threat of a corrupt judiciary striking them down on the basis of partisan pretzel-logic.

Democrats cannot do either of those things just by winning the House, or the presidency, or even both. What’s more, even with the presidency plus House and Senate majorities, over the long term Democrats cannot do either of those things unless at least 50 senators prioritize them over “senatorial courtesy” i.e. the filibuster.

Democrats cannot make or amend laws if they are all filibustered in the Senate, which all substantive legislation will be so long as Republicans have the option. This, too, is really a large enough topic for a second post, but I feel obliged to emphasize here that “reconciliation” is not a way to make laws while keeping the filibuster. This should be obvious; the fundamental notion that a majority can pass laws but still preserve a minority power to prevent the majority from doing so is nonsensical. Beyond that, the entire history of lawmaking through budget reconciliation demonstrates that even as a messy compromise it’s simply garbage. Contrary to Republican lies, Democrats did not pass the Affordable Care Act via reconciliation—but they did rely on it in attempting to amend the inevitable problems of version-1.0 major legislation, and the limits of reconciliation hindered that attempt. More recently, Republicans found reconciliation a poor tool even for their sabotage-focused agenda. Even for callous senators willing to hurt lots of people, they could not come up with a health care law using reconciliation; even when their goal was just slashing taxes for the rich, the limits of reconciliation contributed to a sloppy mess of a bill.

This alone should be conclusive, but the problem of the Senate gets worse combined with the problem of the judiciary. Even if Democrats fully match Republicans in judiciary confirmation hardball—rubber stamp appointments from your party’s president, and blockade all appointments from an opposition president—over time Republicans will win that game. The average partisan lean of the present 50 states is simply way too favorable for Republicans.

Democrats can probably still win a Senate majority again, at some point, but another 60-vote supermajority is as unrealistic as antiquated notions of working across the aisle to find common ground and other bullshit phrases favored by wealthy, privileged, out of touch politicians wistful for the good old senate they remember which was actually always garbage anyway. I don’t think Democrats can plan on being more successful than Republicans at the long-term presidency-and-senate game, so long as it’s played under current rules.

The only practical way to change most of those rules is by passing new laws, and thus Democrats face a major choice in years to come with consequences for the very future of life on Earth:

  1. Use the power of elected office to make laws, including changing the rules to make them less unfair
  2. Extend a nonreciprocal commitment to established rules and norms even including grotesquely undemocratic privilege

This choice, of how/whether to confront a very asymmetrical attitude toward democratic politics, is really the main big update for my part. I have obsessively read and chronicled and synthesized our political nightmare for two years, now, and my additional takeaway is this:

David Frum has made a valid point that “If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy.” Except he uses the wrong tense. This happened already in America, as long ago as the 1960s. Our present nightmare is not an accident of history, but mostly the product of a decades-long effort by the right to thwart democracy, launched because democracy is ultimately incompatible with the fundamental conservative value of narrow privilege. (There’s no “if” involved.)

That’s the biggie. Everything else: social media, foreign meddling, epistemic closure, partisan polarization, the failings of Washington Consensus economics, even racial resentment is secondary to this effort I believe.

This effort has been productive and successful and protean, and yet it remains dependent on removing power from the people. For all my great cynicism about democracy, Trump didn’t win a majority, and has not majority support even now. Republican policies, from union busting to Trumpcare to goddamn tax cuts have all drawn majority opposition. That’s something, at least, and considering the horrendously corrupted and dysfunctional informational systems we have, it’s not an insignificant something.

“Let the majority decide” is far from perfect, but it is not our biggest problem. Our biggest problem is, as best I can discern, a large organized ongoing project to exploit well-intentioned concerns about democracy’s failings in order to replace it with something fundamentally worse.

Our biggest challenge is: do we go on getting taken by that bad-faith exploitation of democracy’s perils, or do we recognize that exploitation as the greater peril and choose accordingly.

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