American democracy has taken a beating over the last four years, but Election Day may set the table for historic reforms.
The severe stress test for democratic norms can be counted on to further intensify if President Trump gets re-elected. Continuation of a divided Congress would likely perpetuate gridlock on most policy fronts. But should Joe Biden win the White House, and the Senate turn Democratic as well, the new president would take office with an ambitious stack of ready-to-go democracy reform bills on his desk — all of them strongly backed by Democrats newly in control of the entire Capitol.
And those sweeping overhauls of the laws governing campaign financing, voting rights, gerrymandering, executive branch ethics, the courts and even the inner workings of Congress would all be both on the table and viable. The question would be how high they would be on a Biden priority list and how much political capital he and his congressional allies would be willing to spend to get them done.
"As dispiriting as it can be how frustrated Americans have become with politics, their anger actually is a source of hope," says Rep. John Sarbanes, the Maryland Democrat who was the main sponsor of HR 1, the catchall election process, government ethics and money-in politics package that died in the GOP Senate right after the House passed in early 2019. "Because the fact that they're angry means they still care enough about their democracy to want to see it change and improve."
To Sarbanes, the voter protections and big money curbs long central to the democracy reform movement remain the most urgent, and the most likely to top Democrats' agenda in the new Congress.
But Trump's four-year assault on democratic norms and institutions has fueled bipartisan support for a new class of reforms aimed at ending self-dealing, cronyism, foreign collusion and other ethics abuses in the executive branch. Talk of expanding the Supreme Court and bestowing statehood on D.C. and perhaps Puerto Rico is mobilizing progressives.
And the Senate's legislative filibuster may also get toppled if Democrats take over and Republicans refuse to cooperate early on. That change would please those who view those supermajority rules as a relic of a Senate culture that's long gone, and as a recipe for the partisan deadlock that has fueled congressional dysfunction. It also would likely be needed to get most fix-the-system bills past GOP opposition and under a President Biden's pen.
The obstacles to changing ethics and election laws remain as formidable as ever. Even reform-minded Democrats this year embraced deep-pocketed outside groups that helped push election spending past a record-shattering $14 billion, double what was spent on presidential and congressional contests just four years ago. Bitter lawsuits over voting this year attest to the difficulty of expanding access to the ballot. And partisan divisions tend to flare most heatedly around the rules of the political game.
But the depth of the nation's democracy crisis may be precisely what ushers in change. Trump's norm shredding, the coronavirus pandemic, the resulting recession, heightened reckoning with systemic racism, income inequality fueled by tax cuts and bailouts for the super rich, efforts in many states to suppress the vote this fall — all have riled up the electorate this year, and not just on the left.
Voters are voicing growing unease that rigged rules are keeping an out-of-touch minority in power. Republicans' rush to install Justice Amy Coney Barrett on the Supreme Court was the latest evidence of this cited by Democrats, and it has boosted their fundraising and Senate hopes — along with their ambitions for reform.
"Our political system has so clearly failed the people that the environment will be ripe for a big transformative package to make our government work for all of us," Deirdre Schifeling, campaign director for the progressive coalition Democracy For All 2021, told The Guardian.
Biden unveiled a full slate of political money, lobbying and ethics reforms early in the campaign and much of the consensus democracy reform agenda earned a place in the party platform. But since ticking those boxes he and his running mate, Sen. Kamala Harris of California, have spent minimal time talking about these issues during the fall campaign — beyond professing their support for an election that gives Americans many options for voting and doesn't block them from the polls.Biden would face considerable pressure from good governance advocates to try to deliver in his first 100 days — and he could, if he decides he can do that while also potentially moving to combat the pandemic, stimulate the economy, address the health care system's shortcomings and curb climate change.
Those are big "ifs." But democracy advocates see an analogy to the Watergate era, which also ushered in historic reforms. If the stars align for Democrats, here's what their reform agenda would look like:
Curb special interests. Democrats would immediately revive the "For the People Act," the other name for HR 1, the sweeping package of voting, ethics and campaign finance reforms the House passed entirely along party lines in March 2019. The bill would modernize voter registration, take aim at voter suppression and gerrymandering, strengthen ethics laws, expand lobbyist disclosure and inject new transparency, tougher limits and public money into campaign financing, among other measures.
Restore voting rights. The afterglow of the election would spur a new push to update the Voting Rights Act. The bill the House passed last year has since been renamed after the late civil right icon and Georgia congressman John Lewis. The legislation would revive the racial discrimination protections enshrined in the original 1965 landmark law — by once again requiring states with histories of voter suppression to get federal permission to change any election rules. The old rules for this "preclearance" were struck down seven years ago by the Supreme Court.
End presidential abuses. In September the Democrats in charge of seven House committees unveiled the Protecting Our Democracy Act, their plan for curbing executive branch balance-of-power abuses after Trump is gone. The measure would regulate presidential pardons, enforce bans on foreign contributions and expedite enforcement of congressional subpoenas. It echoes some of the bipartisan reforms outlined by Bob Bauer, a White House counsel in the Obama administration, and Jack Goldsmith, who served in the Justice Department under President George W. Bush, in their new book"After Trump: Reconstructing the Presidency."
Strengthen Congress. While the rest of Congress bickered, a bipartisan Select Committee on the Modernization of Congress quietly but with rare bipartisan unanimity approved 97 ideas to make the House more efficient, transparent and responsive to voters. Key recommendations include technology and staffing upgrades, strengthening congressional committees and executive branch oversight and overhauling the budget process. Many of these ideas would need to be turned into House rules or legislation next year.
Limiting minority power. Curbing or downright ending the legislative filibuster, which allows 40 senators (almost always from the minority) to block a bill, would get intense scrutiny the first time the Senate GOP refuses to negotiate on a high-profile measure. Democrats may also decide that — in part to counterbalance the 22 Republican senators reliably elected from states with 5 percent of the population — it's time to make states out of much more Democratic and ethnically diverse D.C. and Puerto Rico. And they would frame talk of adding more seats to the Supreme Court, or limiting justices' terms, as a way to curb conservative dominance at a time the country is not so conservative.
And if Trump wins? Or if Republicans retain the Senate? Democracy reforms would be put off, but the impetus for them would continue to grow. History tells us that scandals tend to usher in cycles of change. As Sarbanes puts it: "It's when you reach these points of high frustration in the electorate, and a sense that things are fundamentally broken, that you have the opportunity to come in with significant reform."
Carney is a contributing writer.
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