In the wake of another mass shooting at the hands of another AR-15-armed gunman and a powerful hurricane heralding the beginning of a dangerous storm season, the policy conversation in the Democratic presidential primary has been dominated in recent days by gun control and climate change. Both issues have been the subject of expansive policy proposals on the campaign trail, from mandatory gun buybacks to multitrillion dollar transformations of the American energy economy.
But all of these proposals will face serious structural hurdles to passage and implementation even if Democrats manage to win the presidency and take full control of Congress next year. The filibuster will make the passage of constructive legislation impossible without a sixty-seat Democratic supermajority in the Senate or the assent of Republicans from disproportionately empowered conservative states. Moreover, the Supreme Court and broader federal judiciary have been stacked with conservative justices and judges—all well positioned to weaken, if not derail, ambitious progressive legislation. And while Democrats won the House and several state legislative chambers in 2018, gerrymandered Republican districts have proven to be a durable challenge for the party to surmount over the past decade. Should Democrats fare poorly in the redistricting fights set to unfold after the 2020 census, they will remain that way.
These are among the reasons why several of the Democratic candidates have proposed bold ideas to retool American democracy, including ending the Senate filibuster and reforming the Supreme Court. Earlier this year, House Democrats kicked off the conversation with the passage of H.R. 1, a large package of reforms that included ending partisan gerrymandering. Out of the spotlight, a number of progressive groups have taken up the cause at the grassroots level.
Last week, Indivisible, a large network of activists that emerged in the wake of Trump’s election, announced a campaign to build support for ending the Senate filibuster. “We think American democracy is facing an existential threat and there is a potential limited window of opportunity to implement some actual reforms to make democracy function,” Ezra Levin, Indivisible co-founder, said. “Even if we have that democratic trifecta, what we know is that Mitch McConnell is out there calling himself the grim reaper of legislation. He’s calling reforms like D.C. statehood and expanding the voting rights a power grab and socialism. So we know what he will do in 2021 even if he’s in the minority, and that is: filibuster everything.”
Indivisible’s filibuster campaign, and their new focus on democracy reforms in general, arose after the organization asked its members about their priorities. Enacting pro-democracy reforms was a clear winner.
“We were looking ahead to 2019 and we knew that there were going to be opportunities to push for proactive policies,” Levin said. “We’re no longer just going to be in resistance mode, we would need to be in some kind of proactive mode. And so we polled our groups and asked them, what do you care about? What do you want us to focus on? And it wasn’t even close. About 20 points above even health care or climate issues was this fundamental concern for democracy.”
On their new filibuster campaign website, Indivisible is keeping tabs of candidate statements on the subject. Elizabeth Warren and Pete Buttigieg are among the candidates listed as being either in favor of or open to establishing simple majority rule in the Senate, and are ranked ahead of other contenders the group says “need to get real,” including current front-runner Joe Biden.
“What we’re seeing right now is the candidates are, in fact, trying to out-democracy each other, which is something we had hoped would be the case about a year ago when we first started talking about this,” Levin said. “What we see are the candidates responding to political opportunity. And luckily, that political opportunity lines up with political necessity.”
Addressing a federal judiciary wholly reshaped by the Trump administration and Senate Republicans has been similarly framed as necessary by Democrats like former Clinton campaign press secretary Brian Fallon, who now serves as the executive director of the court reform group Demand Justice.
“Democrats, for many years now, have become complacent about the third branch of government,” Fallon said. “We have generally let our guard down while Republicans have gone about a four decade long project of taking it over for the purposes of advancing their twin goals of repealing Roe and doing right by their evangelical movement that powers their grassroots, and making the country more hospitable to corporate interests. Democrats are still clinging nostalgically to the Warren Court era, and think of the courts as an institution that is on our side, and that, left to their own devices, can generally be trusted to do the right thing.”
But the confirmation of Brett Kavanaugh last year was a wake-up call, so much so that Democratic National Committee Chair Tom Perez was among those who spoke to a Demand Justice event aimed at circulating ideas for reclaiming the judiciary. In October, Demand Justice will join the Women’s March and the Center for Popular Democracy for a protest marking the anniversary of Kavanaugh’s confirmation, to make clear that conservative judges pose a substantial threat to reproductive freedom. Fallon believes that while anti-choice rulings and other conservative legal victories will pose short-term setbacks, they may ultimately build the momentum for reform.
“As more and more Democratic priorities become casualties of this conservative takeover of the courts, I think it’ll wake up the progressive grassroots,” he said. “But we’re just trying to hasten that timetable so that we can confront it sooner rather than later. And in light of what the Republicans have been able to do, we no longer think that it’ll be enough to just win the next election and guarantee the opportunity to appoint some judges in 2021. Trump has now left a lasting legacy and he’s in the midst of flipping a bunch of the circuit courts. And just replacing some retiring democratic appointed judges will be the equivalent of treading water.”
While ideas such as packing or remaking the Supreme Court still reside well outside the political mainstream, ending the practice of gerrymandering has been a project of broad public interest for some time. That project gained a prominent new advocate in 2016, when it was announced that Obama Attorney General Eric Holder would chair the National Democratic Redistricting Committee (NDRC), an effort to unwind the gerrymandered districts that have advantaged Republicans in Washington and at the state legislative level.
Saumya Narechania, director of advocacy and campaign manager for the NDRC’s affiliated 501(c)(4) campaign, All On The Line, argues that inertia on high-profile issues with broad public support, like gun control, has driven Democrats toward taking redistricting reform more seriously.
“Even though a huge majority of Americans want something like universal background checks, you’ve got incumbents who look at a possible check coming in from the gun lobby and running against a possible primary challenger instead of actually looking to the general election,” he said. “So the problem of gerrymandering is fundamentally a problem of allowing special interest influence and also a problem of politicians more or less being able to keep the power at the expense not just of the voter, but of the issues that voters really care about on a day-to-day basis.”
Voters appear to be catching on, and have successfully challenged such gerrymanders at the ballot box. ”Last year you’ve got ballot measures that were passed in Michigan and in Ohio and in Utah, places that are purple states and red states,” Narechania said. “Voters are already tuned in on the issue of redistricting, and passing those ballot reforms I think was a key first step. Now, looking ahead to 2021, I think what we want to do is engage in active grassroots efforts and give them the knowledge, the tools, and the skills necessary to engage their elected officials and engage the process.”
Educating and engaging ordinary voters on complicated structural reform proposals, which compete for attention with bread-and-butter matters like the state of the economy and health-care reform, can be challenging. FairVote, a nonpartisan group pushing electoral reforms has been at it since 1992. The organization’s president, Rob Richie, believes that the most valuable lessons for reformist organizers can be learned from FairVote’s efforts at the state and local level. In Massachusetts, FairVote has worked alongside groups like Voter Choice Massachusetts to build support for ranked choice voting, a system in which voters can select and rank multiple candidates, who can win only by securing a true majority of the vote. The idea is now backed by by 41 percent of Massachusetts’ state legislators.
“What they’ve done is they’ve made it really easy for you to do something,” Richie said of Massachusetts organizers. “They narrowed the ask. Let’s just start educating our neighbors about this. Have some house parties. They created a really straightforward PowerPoint of what the problems were and how ranked choice voting addresses it, boiled it down to a nice, simple story that spoke to some real things going on in Massachusetts that weren’t unique—it’s not particularly broken in Massachusetts, but there were still good, good stories to tell.”
The task of making structural and procedural reforms accessible for the average voter might come easily for Indivisible, which first came to prominence with a Tea Party–inspired guide to congressional activism made freely available online. “Our DNA is being congressional nerds who try to demystify complex processes,” Levin said. “That was the whole point of the original Indivisible Guide—to say, ‘Hey, Congress is a black box. It’s hard to understand unless you’re a well-paid lobbyist. Here’s the basics that you need to know.’ So explaining the filibuster, its role in American history and the barrier it presents to any kind of progressive change after Trump is a kind of a natural part of our wheelhouse.”
“We started developing a curriculum for a national gathering that we put together,” he continued. “This was at the beginning of last month—we had around 300 local Indivisible groups from somewhere around 40 states and D.C. And we did a training on structural reforms to democracy and a training on the filibuster in particular, and trained these groups from all across the country on how they should be engaging with presidential candidates now and what kind of questions they should be asking them.”
Those activists, now dispersed around the country, are working to ensure that the filibuster, already being raised as an issue by voters on the primary campaign trail, remains in the political conversation through the general election.
However, recent polling suggests that voters are wary of major reforms to the Senate. A Pew survey from last year, for instance, found that over 60 percent of Americans are fine with the power Senate apportionment gives to less populous states. Similar polling on the filibuster yields more ambiguous data and, predictably, tends to fluctuate among partisans depending on which party controls the White House and Congress. In 2017, ahead of Mitch McConnell’s elimination of the Supreme Court filibuster to confirm Neil Gorsuch, Quinnipiac found that 67 percent of voters, including 86 percent of Democrats, opposed the move. But in 2010, the last time the Democrats held both Congress and the White House, Quinnipiac found that while a 51 percent majority of voters considered eliminating the filibuster a bad idea, 54 percent of Democrats supported it.
In general, Democrats in surveys tend to express respect for bipartisanship and a preference for achieving change by consensus. For instance, ahead of the 2016 election, Pew found that 66 percent of Democrats and Democratic leaders preferred respecting rules “even if it’s harder to get things done” rather than bending them. By February 2018, about a year into the Trump administration, that number had grown to 79 percent. While it could fall again if the party regains control of government, the figures suggest that a large number of Democrats hold attitudes potentially at odds with pushes for structural reforms that would advantage them.
Activists emphasize, however, that proposals like eliminating the filibuster, ending gerrymandering, and reforming the judiciary would not just build more Democratic power, it would also enfranchise more voters and make our counter-majoritarian institutions better reflect the will of the majority.
“Our goal with these reforms is to make our democracy more representative purely to put power in the hands of the people, and the way that we present these reforms really has to be in terms of good government,” Levin said. “This is how democracy ought to run and it has been taken over by a group that don’t want democracy to respond to the people. They fundamentally view a representative democracy as a threat to their extremist policy goals. We’re looking to reverse that. Now, many of the reforms that we’re proposing would be supported among Democratic Party officials. And some of them might not be. And that’s fine and good. Our goal is not to strengthen the Democratic Party. It’s protecting democracy as a whole.”
Richie said that the energy and attention Democrats have brought to government reform efforts have been good for both progressive and nonpartisan reformers alike.
“Frankly, from a reformer’s perspective, you kind of need both, expect both,” he said. “It’s actually pretty important, I think, to have it be the right thing to do. And I think we can make the case—for proportional representation, say—that is very much the right thing to do for the country, the right thing to do for a number of different aspects that are broken in our politics, dealing with, with race and representation, and obviously the geographic problem, and one party demonizing a whole region of the country because they don’t represent people there, and so on. Fixing that is important.”
Nevertheless, it remains inescapably true that the Republican Party has a vested interest in safeguarding America’s counter-majoritarian institutions and practices, whereas the Democratic Party stands to benefit from undoing them. In any event, they can only be undone if progressive activists and politicians manage to convince the American majority that empowering the Democratic Party will mean empowering themselves.
“We’re seeing increasing consensus on issues like gun safety, like reproductive rights,” Fallon said. “And yet you have these elements that are helping Republicans win the day even though they don’t have the majority of the people on their side. And I think that the public appetite for stomaching that is only going to last for so much longer.”