Wave After Wave of Toxic But Legal Schemes

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

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.