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January 07, 2013 4:20 PM Wave After Wave of Toxic But Legal Schemes

By Ed Kilgore

In discussing at TAP the recent buzz among Republicans about changing how electorate votes are allocated by states, Jonathan Bernstein makes an important point: it’s just the latest in a long wave of legal but toxic schemes put forward by the GOP to skew the political landscape in their direction:

It includes the establishment of the 60-vote Senate; mid-decade redistricting in Texas after Republicans took control of the legislature there; the “new nullification” of Republicans using the filibuster to prevent anyone at all from getting confirmed for some executive branch posts in an effort to prevent duly passed laws from getting carried out; recall elections to remove officials without any particular cause; and the impeachment of Bill Clinton for actions which had not traditionally been thought to fall into the category of “high crimes and misdemeanors.”
Oh, and one more, one that is closely tied to the latest plan: the threat, during the 2000 presidential recount fight, that the Florida legislature would simply toss the entire election out and pick the electors themselves.
What all these efforts have in common is that they are all perfectly legal, and yet they all violate the norms of how American politics had been practiced for decades or even for centuries

This is the point in the discussion where a lot of progressives start complaining about Democrats lacking a spine, and letting the GOP get away with murder, and exhibiting a pearl-clutching reluctance to fight fire with fire. But there’s a bit more to the story than that, beyond the realization that an escalating battle of partisan gimmickry is not a particularly good way to restoring “the norms of American politics.”

Most of the Republican games for exploiting loopholes in the system work because they reinforce essential parts of the system that have (deliberately or coincidentally) a conservative bias: e.g., the unrepresentative nature of the Senate and the Electoral College, and the inherently reactionary effect of gridlock and public-sector paralysis. These cannot be wished away or willed away by any matter of “spine.” Progressives have pretty much come to the conclusion that one big recent source of distortion in the political system—campaign financing—can only be remedied by a constitutional amendment or significant changes in the composition of the U.S. Supreme Court. A lot of the ideas we hear about how to overcome Republican obstruction in Congress—from the “constitutional option” to the trillion-dollar coin, to radical changes in how the Congress works—may well be necessary and appropriate options to weigh and even propose: but there’s no guarantee they’d survive a court challenge.

So those who love to blast Democrats for their timidity in fighting fire with fire should keep in mind that sometimes you can do that and sometimes you can’t—and an attitude of permanent belligerency is no cure-all.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • gdb on January 07, 2013 4:35 PM:

    Kilgore Bottom line: Don't fight aggressively. Someone might accuse you of being overly aggressive.It might not work. Give up now.

  • Midland on January 07, 2013 4:51 PM:

    Just to clarify, Mr. Kilgore, the problem with many of us is not that the Democrats don't fight dirty enough, the problem is that they often don't fight at all. People might get offended when a child throws a temper tantrum or throws his cereal bowl in public, but they definitely, and justifiably, are outraged when the adults in charge ignore the bad behavior and let themselves and others be bullied.

    If you want to concern troll the situation, first give us a list of what the Democrats and the courts and the supposed guardians of our freedoms in the press are doing about these abuses of power. Is the justice department working on civil or legal actions to prevent vote-stealing? Are there laws before congress to prevent the gerrymandering of senate seats? Is the Democratic majority in congress calling people out to testify in hearings about attempts to steal elections? Are the national news anchors correcting Republicans when then claim laws should require 60 votes to pass the senate? Do they announce Mitch McConnell as the man who blocks every Democratic nomination and action, even those so innocuous that they eventually pass the senate with 90 to 10 majorities? Or is he treated like a reasonable and just elder statesman whose every sentence deserves deference and earnest attention?

    You cannot maintain democratic governance in any country if the national elites are so subservient and cynical that they won't raise a fuss about those violating it. If the Democrats and the national media think we are too angry, let them explain why there is nothing to be angry about. If they even have that much courage.

  • Josef K on January 07, 2013 4:55 PM:

    From gdb at 4:35 PM:

    Kilgore Bottom line:

    I don't agree. Kilgore is simply noting that our political machinery is a Rube Goldberg-esque clockwork, which functions imperfectly and allows all sorts of ugliness to go on without legal sanction.

    Our tendency to get mad at the modern Democrats for not being as versed in exploiting said machinery is a kind of distraction for us, and doesn't take into account how the machinery is naturally antagonistic to progressive policy.

    I agree there's a strain of timerity in the modern Democratic Party, and that needs to be addressed. But that's only a small, small part of the overall problem, and focusing exclusively there isn't going to solve much of anything.

  • Anonymous on January 07, 2013 4:58 PM:

    "... an attitude of permanent belligerency is no cure-all."

    Well an attitude of permanent acquiescence is no cure at all. Sorry, pal, but there's no excuse for Democrats remaining polite and dignified, while Republicans use every dirty trick under the sun to force their ideology on America, bypass honest elections, and destroy the successes of the 20th Century.

    "These cannot be wished away or willed away by any matter of 'spine.'"

    Well, if the Democrats lack the "spine" to fight this kind of garbage, then the GOP has already won. After all, it's awful hard to beat something if you will not even fight it.

    No, "spine" won't fix anything. But without it, the steps will never be taken to fix anything. There can be no movement to end this madness without the courage to stand up and vocally reject it.

    Itís funny how the GOP never seems to worry about being belligerent. They never worry about being abrasive. They are not afraid of being partisan fighters. Indeed, such brazenness is among their greatest strengths. Why? Because it helps them win. There is no standard that matters more than victory.

    So, I have to ask you: Why is it forbidden for the Democrats to "fight fire with fire" and, you know, stand up for what they are supposed to believe in?

    You keep saying that Democrats with "spine" can do nothing. So what is your answer? Keep on letting the GOP rule the roost? Settle for a few culture war victories here and there, but let the GOP keep running policy? Be nice and civil and hope the GOP becomes sane and reasonable on itís own??

    Good luck with that.

  • Aaron Morrow on January 07, 2013 5:03 PM:

    Jonathan Bernstein: "Constitutional hardball is a step beyond that, and itís deeply threatening to democracy."

    Oh well, democracy was nice while it lasted. Rally around the white flag, boys! Never try anything that MIGHT not survive a court challenge.

  • boatboy_srq on January 07, 2013 5:16 PM:

    recall elections to remove officials without any particular cause

    Anyone old enough to remember Enron ought to recall how this particular gambit, backed by amoral, profit-driven manipulation of energy markets, was used to unseat a governor not unpopular with his constituents but deemed an obstacle by the energy industry (and by the GOTea). CA lost Gray Davis, and Enron and Shrubbery gave us the Governator. Given how unremarkably moderate Schwarzenegger proved to be - and how disastrous some of the other candidates would have been - the results are less bad than could have been predicted, but it's the first time a sitting governor was recalled with a 49.99% approval at the polls and his successor was elected with just 30% of the vote.

    It may be that an attitude of permanent belligerency is no cure-all. But complacency - by any non-Teahadist, in any locale - is a recipe for defeat when the GOTea and its allies are able to mobilize influence, resources, and market vagaries far afield of even "safe" states and districts to influence outcomes far from their base. And it does nothing to advance the position that the Reichwing is a shrinking proportion of the GOTea, and that the viciousness and earsplitting whinging on their part is indicative of waning GOTea power and influence: when you're exterminating pests, and you're down to the last few, you don't spread goodies for them - you break out another can of Raid.

  • JMG on January 07, 2013 5:18 PM:

    How in the world would changing how Congress works (which can only be done by Congress) fail a court challenge? The courts have no authority over Congressional rules. I believe that's in the Constitution.
    If the Supreme Court wants to rule the trillion dollar coin unconstitutional, fine. The country will know who wrecked the economy quite specifically. But if you never fight, you always lose.

  • Ron Byers on January 07, 2013 5:39 PM:

    Midland, I get your drift, but it is hard to gerrymander senate seats. Every state gets two. It is in the constitution.

  • Midland on January 07, 2013 5:43 PM:

    A finely done piece of concern trolling here . . .

    "Kilgore is simply noting that our political machinery is a Rube Goldberg-esque clockwork, which functions imperfectly and allows all sorts of ugliness to go on without legal sanction."

    Disingenuous or, to be charitable, possilbly just clumsy. Kilgore does what you note in the first paragraph, and, since pretty much everyone who is politically active knows this, it's a rather pointless comment. Of course, if your state were true, Ed would have stopped typing after that first paragraph.

    "Our tendency to get mad at the modern Democrats for not being as versed in exploiting said machinery is a kind of distraction for us."

    No, it isn't. Making use of the electoral machinery in a professional manner, restrained by a sense of propriety and justice, is the absolute minimum we should expect from the national parties. If the Democrats are simply being inept, that is plenty of cause for outrage, considering how much is at stake and how much we invest each election cycle in getting a fair shot at getting policies we favor before the legislatures and courts. Of course, as Mr. Bernstein notes, the problem is not that the Republicans are better at the minutia of politics, it is that A finely done piece of concern trolling here . . .

    "Kilgore is simply noting that our political machinery is a Rube Goldbergesque clockwork, which functions imperfectly and allows all sorts of ugliness to go on without legal sanction."

    Disingenuous or, to be charitable, possibly just clumsy. Kilgore does what you note in the first paragraph, and, since pretty much everyone who is politically active knows this, it's a rather pointless comment. Of course, if your state were true, Ed would have stopped typing after that first paragraph.

    "Our tendency to get mad at the modern Democrats for not being as versed in exploiting said machinery is a kind of distraction for us."

    No, it isn't. Making use of the electoral machinery in a professional manner, restrained by a sense of propriety and justice, is the absolute minimum we should expect from the national parties. If the Democrats are simply being inept, that is plenty of cause for outrage, considering how much is at stake and how much we invest each election cycle in getting a fair shot at getting policies we favor before the legislatures and courts. Of course, as Mr. Bernstein notes, the problem is actions that "violate the norms of how American politics had been practiced for decades or even for centuries." You are aware that the constitution says laws pass with a majority vote, right? And that Voter IDs and poll fees have been and are being used specifically to prevent Democrats from voting, just as they were used under Jim Crow and in many notoriously corrupt political machines? Isn't that something worth some moral outrage?

    ". . . Doesn't take into account how the machinery is naturally antagonistic to progressive policy."

    Nonsense. Who declared that to be an issue?

    "I agree there's a strain of temerity in the modern Democratic Party, and that needs to be addressed. But that's only a small, small part of the overall problem . . ."

    It isn't a small part of the problem if the Republicans have exploited Democratic "temerity" to monkey-wrench majority rule in the senate for six years. And it isn't a small problem if they have bullied the news networks into presenting their radical view of things, including the 60 vote senate majority, as the mainstream way of doing business.

    "And focusing exclusively there isn't going to solve much of anything."

    Whoa, a traditional concern troll straw man. When someone raises an important issue, answer as though they are focusing on that issue only and ignoring anything else. Beautifully patronizing, and you don't present any evidence whatsoever for this bizarre claim. How can you possible know if some or most of the

  • Kyle McCullough on January 07, 2013 5:43 PM:

    I see that JMG said most of what I was going to say. There is no way the court could plausibly strike down ending the filibuster. The Democrats' insistence on keeping it makes them more than just spineless. It makes them complicit.

  • Midland on January 07, 2013 7:29 PM:

    "Midland, I get your drift, but it is hard to gerrymander senate seats. Every state gets two. It is in the constitution."

    That's what I used to tell people, but,sadly, there is a genius in Pennsylvania who has figured out how to do it. The Republicans have already gerrymandered the state's congressional districts so the Democrats have 52% or so of the votes, but only five of fifteen congressional seats. What the Republicans want to do now is allocate the senate vote in some fashion by the congressional districts, so that their candidate would win by capturing the ten safe Republican districts even if the Democrat took 60% of the popular vote.

  • Midland on January 07, 2013 7:34 PM:

    Screwed up security system . . . sheesh . . . Try again:

    A finely done piece of concern trolling here . . .

    "Kilgore is simply noting that our political machinery is a Rube Goldberg-esque clockwork, which functions imperfectly and allows all sorts of ugliness to go on without legal sanction."

    Disingenuous or, to be charitable, possilbly just clumsy. Kilgore does what you note in the first paragraph, and, since pretty much everyone who is politically active knows this, it's a rather pointless comment. Of course, if your state were true, Ed would have stopped typing after that first paragraph.

    "Our tendency to get mad at the modern Democrats for not being as versed in exploiting said machinery is a kind of distraction for us."

    No, it isn't. Making use of the electoral machinery in a professional manner, restrained by a sense of propriety and justice, is the absolute minimum we should expect from the national parties. If the Democrats are simply being inept, that is plenty of cause for outrage, considering how much is at stake and how much we invest each election cycle in getting a fair shot at getting policies we favor before the legislatures and courts. Of course, as Mr. Bernstein notes, the problem is actions that "violate the norms of how American politics had been practiced for decades or even for centuries." You are aware that the constitution says laws pass with a majority vote, right? And that Voter IDs and poll fees have been and are being used specifically to prevent Democrats from voting, just as they were used under Jim Crow and in many notoriously corrupt political machines? Isn't that something worth some moral outrage?

    ". . . Doesn't take into account how the machinery is naturally antagonistic to progressive policy."

    Nonsense. Who declared that to be an issue?

    "I agree there's a strain of temerity in the modern Democratic Party, and that needs to be addressed. But that's only a small, small part of the overall problem . . ."

    It isn't a small part of the problem if the Republicans have exploited Democratic "temerity" to monkey-wrench majority rule in the senate for six years. And it isn't a small problem if they have bullied the news networks into presenting their radical view of things, including the 60 vote senate majority, as the mainstream way of doing business.

    "And focusing exclusively there isn't going to solve much of anything."

    Whoa, a traditional concern troll straw man. When someone raises an important issue, answer as though they are focusing on that issue only and ignoring anything else. Beautifully patronizing, and you don't present any evidence whatsoever for this bizarre claim. How can you possible know if some or most of the people outraged by Republican vote-rigging and gerrymandering are "focusing on that issue only?" Do you have survey data?

  • janinsanfran on January 07, 2013 11:14 PM:

    I don't know. Permanent belligerency strikes me as preferable to playing doormat. Why should anyone rally to you if you lie down and play dead?

  • Fritz Strand on January 08, 2013 8:53 AM:

    My question would be how aware the public is that Republicans are violating norms while still obeying laws (as Chris Hayes might put it)?

    Remember how Republican Senators pounded Democrats every day for an up or down vote on their Supreme Court choices?

    Where were the Democrats, particulary Obama, when 60 votes suddenly because a norm in the Senate? Crickets.

    And that is just one instance - An instance were it would not take much to educate the public what was going on.

  • toowearyforoutrage on January 08, 2013 3:36 PM:

    "Our tendency to get mad at the modern Democrats for not being as versed in exploiting said machinery is a kind of distraction for us, and doesn't take into account how the machinery is naturally antagonistic to progressive policy."

    Or ARE they?

    As Democrats triangulate and the right cedes territory from even teh mildest remedies for problems (cap n' trade, "all of teh above" energy strategy, DREAM Act, etc) Democrats keep WINNING despite all teh exploitation.

    The voters that get left out due to Republican shenanigans fully blame Republicans for their disenfranchisement (and rightly so!)

    The Dems then find compromises palatable to the voters that remain. Menawhile they fihgt the exclusionary measures to pull in some of their former allies. Larger and larger segments of society identify with Dmeocrats and it gets harder and harder to get to 51% with the remaining barking mad conservatives.

    When teh pendulum inevitably swings back, it's going to knock aside entire armies of conservatives. I just don't see how it can happen any other way. The day of 60+ Democratic Senate votes WILL return and Democrats are playing the cards precisely as they need to.

    They play EXCELLENT chess, but it's frustrating as hell to watch them lose pawns.