Democrats Could Seize Power, but Do They Want To?

Calls to impeach Brett Kavanaugh and pack the Supreme Court show how wide the gulf is between Democratic politicians and their supporters.

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Oct 9 2018, 5:45pm

Photo of Senate Minority Leader Chuck Schumer by Andrew Burton/Getty; photo of House Minority Leader Nancy Pelosi by Alex Wong/Getty

Among other things, Brett Kavanaugh's confirmation to the Supreme Court drove home how fundamentally undemocratic the United States can be. According to GovTrack, the 50 senators who voted to confirm the right-wing justice represented only 44 percent of the population, while the president who appointed him lost the popular vote in 2016 by nearly three million votes. Of course, the Senate was designed explicitly to protect the interests of small states two and a half centuries ago, but knowing the Founding Fathers planned it that way doesn't help if you're upset that both chambers of Congress are currently tilted toward the interests of rural America and conservatives. Republicans have been able to win control over the entire federal government despite earning fewer votes than Democrats—that outcome being almost preordained by the Constitution doesn't make it just.

So it's not surprising that a wave of thinkers on the left have been brainstorming ideas that might allow Democrats to take back control of the country. The hot topic of the moment is impeaching Kavanaugh, an idea that was seemingly endorsed by some Democratic congressmen and garnered over 150,000 signatures on an online petition. Other possibilities involve appointing extra justices to "pack" the Supreme Court after winning the presidency in 2020, and turning Washington, DC and Puerto Rico into states so Democrats would have four more safe Senate seats. At the outer edges of the discourse are proposals to split California into seven states and double the size of the House of Representatives. Spend enough time on Twitter—where former US Attorney General Eric Holder has said "the legitimacy of the Supreme Court can justifiably be questioned"—and you get the sense that there's appetite for major changes in the fundamental structure of the federal government.

There's just one obstacle: Democrats themselves.

If Democrats retake both chambers of Congress and the presidency by 2021, they'll have the first chance in a decade to actually enact their agenda. Even with a narrow majority in the Senate, they could do anything they put their minds to, provided they get rid of the filibuster rules requiring a supermajority in the Senate to get anything done. (Republicans avoided this requirement last year by way of a tactic called "reconciliation" that let them pass a tax cut bill with a narrow majority.) They could enact legislation on hot-button issues like climate change and healthcare while at the same time consolidating power by adding new states—the latter requires only simple majorities in the House and Senate. If the conservative majority on the Supreme Court tried to block any of that, the Democrats could just move to add more justices to the court until it backed off or got friendlier—at least in theory.

In practice, the politics of drastically reshaping the system are fraught. A DC statehood bill introduced in 2015 had a lot of Democrats on board and might seem like the easiest lift out of all the proposals—until you realize that a debate over whether the plan is constitutional would likely give the Supreme Court the chance to strike it down. The rest of it seems even more fantastical. Though there has been bipartisan support for Puerto Rican statehood in the past, those days are likely done thanks to Donald Trump's angry opposition. More problematically for Democrats, statehood is contentious on the island itself, and Puerto Ricans might not approve of admission to the union.



As for the more radical proposals, the Democrats currently in Congress haven't shown any appetite for things like court packing. Removing Kavanaugh would require two-thirds of the Senate, and—thinking cynically—impeachment would reopen a debate that is far from a clear political winner for Democrats. Breaking up California is probably too weird for anyone mainstream to throw their weight behind, and California voters and the legislature would have to OK it. (A proposal to split the state into three parts was taken off the ballot by the state Supreme Court in August.)

And while Republicans have pursued aggressive strategies like stopping Barack Obama from filling a Supreme Court seat in 2016, Democrats are less inclined to norm-breaking. Unfortunately for the left, politicians tend to overestimate how conservative their voters are, and the Democratic Party leadership is biased in favor of moderates. The same Senate map that benefits rural interests also tends to make the Democratic Senate caucus more conservative. Even a narrow Democratic majority in the chamber would have to rely on votes from purple-to-red states like Nevada, West Virginia, Montana, Texas, and Missouri. Those senators are inclined to worry about alienating moderate voters and reject aggressive schemes like court-packing.

Even Minority Leader Chuck Schumer, from deep-blue New York, has apparently promised not to touch the filibuster (he even promised to restore it for Supreme Court confirmations) should the Democrats get back in power—and if the filibuster remains intact, the Democrats' legislative agenda has crashed and burned before it's gotten off the ground.

There's undoubtedly a segment of the country that would be happy to have a return to normalcy after Trump, even if that meant Congress remained gridlocked thanks to a Republican Senate minority with effective veto power. But there's also going to be a portion of the Democratic base that will demand, not unreasonably, that the politicians they elected actually try to follow through on their big promises—especially with climate change rushing at us like an oncoming train.

But none of these impediments stand in the way of Democrats pursuing one of the most popular causes of the Resistance: voting rights. Though not as dramatic as court-packing, reforms aimed at making it easier to vote would help Democrats just as surely as restrictive voter ID laws and voter purges help Republicans—if more people in poverty, young people, and people of color vote, Democrats will have a better chance of winning elections. (Restoring voting rights for felons in Florida, which will be on the ballot next month, is an example of a cause that is both small-d democratic and a winner for Democrats electorally.) If Democrats manage to do what Republicans did a decade ago and win resounding victories in state legislatures during the next two years, they'll be in the driver's seat during the same sort of post-census redistricting period that helped the GOP consolidate power after the 2010 elections. (Democrats have quietly done a good job winning local elections in the Trump era.)

Raising turnout and reversing the GOP's gerrymandering wouldn't instantly give progressives more power the way seven Californias would. And even those modest measures would inspire heated opposition from conservatives determined to retain control of the government. But unless the entire Democratic leadership turns over and the party becomes much more aggressive and attuned to the wishes of its left-wing base, there isn't going to be a series of system-shaking moves. That system is unfair, yes. But even as we recognize that fact, it's hard to imagine how it will change, unless that change comes very slowly.

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