With the continued legal and political woes of the Trump administration and its congressional GOP allies, people are starting to wonder what Democrats might do with their power if they are able to seize unified control in Washington over the next two electoral cycles.
Of course, one huge stumbling block is that unless Democrats can miracle their way to 60 seats in the U.S. Senate, they won't be able to get much of anything done if they don't eliminate the filibuster as one of their first orders of business. Yet somehow, the idea of torching the filibuster, an antiquated and absurdly anti-democratic procedure that requires Senate supermajorities to enact routine legislation, causes shock and horror in certain quarters of the Democratic establishment.
Much of it is about "norms" — expected patterns of behavior that may not be written into law but that are essential for all kinds of social and political processes. Think of the expectation that you will not sit right next to the only other person in an empty movie theater as equivalent to the informal understanding that presidents get to fill vacancies on the Supreme Court when they open up. Neither behavior is written into law, but violating these expectations can have dangerous and unforeseen consequences. That is precisely the risk that Republicans took when they failed to even grant a hearing to Barack Obama's nominee to the Supreme Court in March 2016.
The Merrick Garland heist was merely the latest in a long line of GOP hardball tactics, most of which have gone completely unpunished at the ballot box. That the Republican Party is primarily responsible for the existing escalation of American political warfare is a view shared by nearly all serious observers of American politics. And when they get back into power, Democrats should return the favor. They should bury the filibuster and dance on its grave. They should grant statehood to D.C. and Puerto Rico during their first month in office. They should rectify the theft of Garland's seat by adding judges to the Supreme Court and radically enlarging the federal judiciary. They should dramatically alter the Senate's rules to reduce time for debate and make it possible for Congress to truly be the equal of the executive branch. All of these moves would be perfectly constitutional.
But some oberservers — let's call them the institutionalists — fret that if Democrats engage in this political aggression when in power, it could destroy the fabric of liberal democracy. Dartmouth political scientist and New York Times contributor Brendan Nyhan typifies the response. Court-packing, he argued on Twitter, is "literally acting out the Levitsky and Ziblatt democratic erosion framework in which one side convinces themselves they will lose power forever unless they grab it for their side now." Nyhan is referring to Steven Levitsky and Daniel Ziblatt's influential How Democracies Die, in which the authors argue that restraint in the exercise of power ("forbearance") is one of the key norms undergirding liberal democracy. If Democrats sink to the level of the GOP, they argue, democracy itself could quickly unravel.
The problem for Nyhan and the How Democracies Die brigade is that none of them offer a plausible route out of the crisis in the political society in which we currently live. "Oppose attacks on democracy, don't give in to them," says Nyhan, which sounds nice but is very far from a plan that will keep Democrats in power for more than five minutes. Levitsky and Ziblatt argue that "if Democrats do not work to restore norms of mutual toleration and forbearance, their next president will likely confront an opposition willing to use any means necessary to defeat them." Sorry, but is this not where we already are?
Institutionalists don't provide any particularly plausible suggestions about how Democrats can "restore norms." Instead of further escalation, Levistksy and Ziblatt call for "a broad opposition coalition" that does not exist and cannot exist under current political conditions. The few norm-respecting Republicans are fleeing for private life or dying off, and they will soon be replaced by Trump acolytes with even less respect for unwritten behavioral guidelines. The examples Levitsky and Ziblatt provide in the book — such as bipartisan cooperation to fight the Pinochet dictatorship in Chile — depend on the existence of a mutual, anti-democratic enemy. But in America, that anti-democratic enemy is the Republican Party that President Trump and his apologists just conquered. Who are Democrats supposed to make common cause with? Evan McMullin? John Kasich? Where would that get them? At this point Kasich and McMullin represent themselves and like 10 other former Republicans. Everyone else is Team MAGA.
The idea that Donald Trump's Republican Party is going to come to the table to accept some kind of grand bargain is comical. Mitch McConnell and Paul Ryan won't even allow ordinary compromise legislation to come to the floor in the House and the Senate, even when doing so would solve a pressing national problem and improve the public's perception of Congress. Republicans chose obstruction when they were in the minority, and they have worked strenuously to torpedo bipartisan bills while in the majority, including the Alexander-Murray ACA stabilization bill and the bipartisan immigration compromise that would have given Trump his dumb wall in exchange for protecting the DREAMers. Can anyone point to a shred of evidence that Republicans even recognize that their behavior has been a problem for American democracy?
There's a further issue with the idea that Democrats can sweep back into power and restore the glory of democracy by adhering to unwritten rules: Norms require a common understanding of shared reality. They require, above all else, mutual agreement on what a norm actually is, and that one has been violated. But no prominent Republicans appear to recognize that they blew apart all the norms for SCOTUS nominations, and dangerously escalated the court wars with their hardball Merrick Garland gambit.
On the contrary, they invented a new norm out of thin air (no SCOTUS picks in an election year) and convinced all of their followers that it was gospel. Not a single Senate Republican made a peep about what a destructive precedent this would set. Elite Republican opinion coalesced around this unprecedented norm violation, with the future Never Trump editors of the National Review staking out the maximalist position against even holding hearings. "The Senate has no obligation to give the president's nominee a hearing (let alone a vote), and it shouldn't," they wrote. If that weren't enough, Ted Cruz, Richard Burr, John McCain and other elite GOP opinion-makers made it clear that if Hillary Clinton won the presidency and Republicans held the Senate, they would not allow her to fill the seat either. The only way to get these arsonists to recognize that they've set the house on fire is to set fire to their house, too.
Democrats lack any kind of outlet capable of reaching Republican voters. Trump has succeeded in convincing an astonishing 51 percent of Republicans that the media is "the enemy of the people." When Democrats sweep back into power and try desperately to restore governance norms, ask yourself a question: Do you really think that's how the Breitbart-Fox News-Federalist media empire is going to describe it? Will they even recognize such a norm-reconstruction effort as such, or will they lie gleefully about it as they did about the painstaking, open process Democrats used to craft the Affordable Care Act? I think you know the answer to those questions.
Given these realities, what are Democrats supposed to do? In February 2021, if Republicans hold 45 or 48 seats in the Senate, they will stop the Democrats from passing any legislation that can't be jammed through on a simple majority vote through reconciliation. Democrats will look weak and hopeless and they will be shunted right back out of power again in 2022, with America's rolling political crisis unaddressed.
There is a way out, but it will first require a comprehensive defeat of this Republican coalition, and for Democrats to pursue a hard-knuckle strategy to level the political and electoral playing field. It doesn't mean one-party rule for Democrats, but rather ensuring that elections are fair and that the injustices of the past 10 years of American history are rectified. Democrats should forget about norms that no longer exist and focus on making changes to the political system that are fully constitutional, even if they violate a set of informal expectations that the other side no longer even recognizes.
Then, and only then, with the Trump coalition in ruins and Democrats using the full constitutional powers available to them in the same way GOP elites have done this century, might the remnants of the GOP be willing to agree to a series of compromises. Those compromises should not be about nailing Jell-O to the wall by restoring norms, but rather about writing the norms that we cherish into constitutional law. A good start would be a constitutional amendment that eliminates lifetime tenure on the Supreme Court, guarantees every president two seats on the court for every four-year term, and explicitly outlines the Senate's "advice and consent" obligations. Anything less than a full, constitutional compromise isn't worth the paper it will be written on.
Deep down inside, I think the institutionalists know this. Even Levitsky and Ziblatt concede that "reducing polarization requires that the Republican Party be reformed, if not refounded outright." That will never happen if Democrats feel bound by dead norms that are in many cases quite conservative in the first place.
At the end of the day, the choice facing Democrats over the next 10 years will be this: Do you want to be the victims of Orbanism, or do you want to violate a handful of antiquated norms to restore genuine fairness to the political system? Do you want to watch Republicans dismantle liberal democracy piece by piece and stand aside, or do you want to forge a better, fairer democracy, even if it offends the sensibilities of the establishment?
The time to make that fateful choice may come very soon indeed.