April 10, 2018
Behind the book: It’s Time to Fight Dirty by David Faris
by David Faris
The results of the 2016 election hit me like a fusillade of misery-tipped Tic Tacs. At times, the pain was almost physical. It wasn’t just that so many millions of Americans chose to overlook Donald Trump’s brazen misogyny, ugly nativism, open racism, and defiant know-nothingism, but that under any sane system of government, he would not have become president in the first place. Who awards a single, directly elected office to the candidate with fewer votes? America, that’s who.
The agent of our torment, just as it is with our inability to address the endless series of mass gun murders in this country, is a provision of the U.S. Constitution, the Electoral College. And it wasn’t just that transparently inferior candidates like Wisconsin Sen. Ron Johnson won re-election over dedicated public servants like former Sen. Russ Feingold further down the ballot, but that the GOP as a whole appeared to pay absolutely no price whatsoever for its behavior during the Obama years. That included not just the norm-incinerating refusal to seat President Obama’s nominee to replace Antonin Scalia on the Supreme Court, the mild-mannered centrist Merrick Garland, but a long litany of transgressive behavior stretching back to the first days of the Obama Administration.
After cranking out one overwrought article in the immediate and grim aftermath of Black Tuesday, I didn’t write much. The wreckage was almost too total to contemplate. Republicans would get to fill Scalia’s seat with another constitutional originalist, ensuring at least four more years of reactionary control over the Supreme Court. The mid-term elections, at the time, held little promise. Not only did Democrats face a horrendous 2018 Senate map, defending twenty-five seats compared with the GOP’s eight, but in the long run the Senate is tilted hopelessly against the left. There are probably thirty Republican-leaning states, against twenty that tilt Democratic, meaning that the contemporary GOP has a built-in structural advantage over one of what political scientists call the “veto points” of the American political system. And once again, when thinking about workarounds, we run straight into the U.S. Constitution. The equal representation of states in the Senate, whether they have 700,000 inhabitants or 38 million, is written into America’s founding document and cannot be changed or amended without the consent of the states.
In a broader sense, it all seemed so unfair. Twice this century, Republican presidential candidates have “won” presidential elections that they actually lost, handing control of the federal government to an increasingly radicalized GOP that set about undermining the meager social welfare system, restricting the right of minorities and marginalized Americans to vote, and taking gerrymandering to unheard-of new extremes that threatened the very integrity of our democracy. The inherent unfairness of the U.S. electoral system now even extends to the House of Representatives, where Democrats won more votes in 2012 only to see the Republicans win a thirty-three-seat majority. In 2016, Republicans eked out a narrow, one-point victory in the national House vote only to see the GOP, again, emerge with a towering advantage.
Yet when I walked into my classrooms at Roosevelt University in those hazy post-catastrophe days, I felt I needed to project optimism to my dispirited students, an optimism that on most days I really did not truly feel. To do so, frankly, I needed a plan. And even by December of 2016, it was becoming clear that the Trump administration was going to be such an incompetent, alienating horror show that Republicans might turn power back to the Democrats as quickly as our electoral system allows — in 2018 and 2020. As I was stewing in my misery one sleepless late November night, I thought about how many of these structural obstacles to progressive power could be swept away with laws passed by Congress and signed by a Democratic president. In some cases, there is actually no Constitutional impediment to change whatsoever. In others, there are clever workarounds available to Democratic elites if only they could see them and seize the opportunity. So the Democrats face structural inequality in the Senate. Is there a law that says we can’t create more states? There is not.
Right now there are strong, pro-statehood movements in both Washington, D.C. and Puerto Rico, which would immediately add four senate seats that would go Democratic in all but the most unthinkable scenarios. And then I remembered a piece of arcana from my New Jersey childhood — the non-binding vote cast by the counties of South Jersey to secede and form their own state. The initiative passed, but was never acted on. But again, had the New Jersey legislature then voted to divide itself, and had Congress and the president ratified that decision, we would have had our fifty-first state. Why couldn’t the 38 million people of overwhelmingly Democratic California do the same?
I wrote several pieces for The Week over the next few months, outlining various permutations of these institutional ideas. One proposal outlined how to achieve statehood for D.C. and Puerto Rico, and to create seven Democratic-leaning Californias instead of one. Together these new states would erase the natural Republican advantage in the Senate without having to tinker with the Constitution at all. Another recommended enlarging the House of Representatives, to make it more difficult for map-makers to gerrymander our congressional districts.
Remembering that most features of our electoral system are not in the Constitution at all, I scrolled back through my lesson plans for my comparative politics classes to see what else we might do about the left’s structural disadvantage in the House. A law that changes the way we vote for an enlarged House of Representatives, one that would make it easier for third parties to gain representation, and impossible for partisan elites to gerrymander districts to squeeze out their opponents, as Republicans did in states like North Carolina, Pennsylvania, Ohio, Wisconsin, and Virginia after 2010, to devastating effect. The electoral system we use for the House—435 individual races decided by whoever has the most votes, and bupkis for the losers—is not in the Constitution at all and could be wiped away with simple legislation enacted by forward-thinking leaders.
The GOP’s dark chicanery with voting rights is also vulnerable to a piece of national lawmaking, what I call a “Modern Voting Rights Act,” that would outlaw racist voter ID laws, proclaim a national election holiday, re-enfranchise former (or even current) felons, and automatically register every eligible American to vote. And the source of so much of our misery in the last thirty years, from the Heller decision to Citizens United, is also vulnerable to radical change within the Constitution. Neither the number of justices on the Supreme Court nor the number of slots in other branches of the federal judiciary is stipulated in the Constitution, meaning that the next unified Democratic government in D.C. could erase the GOP’s decades-long death grip on the Supreme Court, transform the district and appellate courts, and wipe away decision after decision that has long tormented the left. All they have to do is pack the courts. If that idea causes your jaw to drop, I would argue that in the reverse-Scooby Doo universe of D.C., where villains are rarely if ever punished, Democrats would almost certainly get away with it, just as Republicans got away with the theft of Merrick Garland’s seat.
For any of these laws and changes to become a possibility, though, requires that Democrats return to power. In December of 2017, I recommended that, against their instinct for compromise and public service, Democrats ruthlessly obstruct President Trump and the Congressional Republicans in order to return to power quickly, and that they should compromise only for legislation that presents a true moral necessity, like saving Obamacare or the DREAMers. For all other issues, the lesson of the 1990s and 2000s is clear: Obstruction pays. Compromise makes the president and his party look competent and popular. And the threat to the republic posed by this Republican Party justifies just about any behavior that helps Democrats return to power.
By last January, these ideas were taking on a distinctly book-like coherence — they were interrelated, they rectified long-standing problems with American democracy, and they would all, in the long run, help Democrats and their allies attain and maintain power. The resulting book, It’s Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics—out today—systematizes these arguments, strips the academic jargon out of the political science research on these issues, and offers a road map for Democrats to regain power.
David Faris holds a PhD in political science from the University of Pennsylvania and is associate professor of political science at Roosevelt University in Chicago. He is the author, most recently, of It’s Time to Fight Dirty.