WWMMD?

In August, Senator Chuck Schumer introduced the No Kings Act. If you missed the No Kings Act entirely or never felt the urge to stand and applaud, you’re not alone. Rank-and-file Democrats have seen this show too many times and were quick to spot another “No Chance to Pass Act” or “Day Late and a Dollar Short Act.”  Schumer introduced the legislation in response to the Supreme Court’s decision in Trump v. United States, but the need for legislation limiting presidential immunity was apparent even before the January 6^th, 2021 insurrection at the Capitol. It was doubly apparent in the immediate aftermath of that attack, a time when Democrats controlled the White House and both houses of Congress. “Apparent” may be too mild a term here. The absence of strong curbs on presidential immunity was an engine fire in flight, a problem to be dealt with immediately. So, Democrats got to work on other things.

To give credit where credit is due, the last two times Democrats controlled both the House and the Senate, they were quite productive. The 111^th Congress (2009-2010) passed the Affordable Care Act, which helped millions of Americans get access to health care and protected people with preexisting conditions. While working on that and other legislation, Democrats in Congress and the Obama Administration also had to deal with the full-blown economic emergency they had been handed upon taking office.

Still, Republican purges of voter roles during the 2008 election were a clear indication that democracy was also in need of protection. Since Obama had an almost filibuster-proof majority in the Senate, the time was ripe for a new voting rights bill to prevent the disenfranchisement of eligible American voters. Also, the next election fell on a census year, so redistricting was imminent.  Yet there was somehow no sense of urgency to protect the system from partisan rigging.

The 117th Congress (2021-2022) was even more productive than the 111th.  After four years of failed “Infrastructure Weeks,” they passed real infrastructure legislation which, along with the Inflation Reduction Act and the CHIPS and Science Act, benefited all Americans, not just Democratic voters. In fact, states that voted for Trump in the 2020 election benefited more from that Democratic legislation than states Biden had won.

The 117^th Congress also changed the 1887 Electoral Count Act to clarify the ceremonial nature of Congress and the Vice President’s roles certifying election results. This addressed what members of Congress had personally experienced during the January 6^th attack but failed to mend the system.  They did try, though. In 2021, the House passed a democracy reform bill, the For the People Act. That bill updated voting infrastructure, ended partisan gerrymandering, strengthened ethics rules, streamlined voter registration, and shifted the influence of fundraising in federal elections toward small donors.  The bill went to the Senate, and Republicans—with the help of Joe Manchin and Kyrsten Sinema—killed it via the filibuster.

The Democratic response was a shrug and some bland, ineffectual statements from Congress and the White House. Manchin and Sinema issued word-salad statements about reducing divisiveness and the importance of the filibuster, which is—in my humble opinion—the most overrated, accidentally created thing in the history of politics. It is now part of the normal order in the Senate, but there is perhaps nothing less important than the Senate’s normal order to a voter who has been removed from the voter rolls or who has waited in line for over five hours to cast their ballot. Even while preserving the filibuster, Democrats could have fought harder. They could have beat the drum on the issue relentlessly and made Republicans articulate exactly what they objected to in the bill. Was it the ethics reform? Was it the prohibition on gerrymandering? What, specifically, do you find so offensive about this bill?  

The lackluster response to the Republican filibuster of the For the People Act (John Lewis Voting Rights Advancement Act, in the Senate), was reminiscent of the polite tut-tutting when Mitch McConnell decided to deny President Obama a Supreme Court appointment based on the fictional “Biden Rule.”  For those of us who were not involved in politics at the time, it was infuriating to see most Democratic leaders insufficiently infuriated. They were pretty certain, I’m sure, that President Hillary Clinton would get to pick Justice Antonin Scalia’s replacement, but that did not excuse McConnell’s disrespect and dishonesty. Democrats should have reacted the way their Republican colleagues would have upon seeing an impoverished child of uncertain gender getting a free school lunch. From the moment McConnell invoked the Biden Rule, no Democrat in the country, from Obama on down, should have said McConnell’s name without reference to his lying and the theft he was engaged in. And it should have been their only topic of conversation.

I’m sure I am not alone in thinking that Democratic leaders in the Senate, when faced with a choice between institutional norms and fixing or preventing a systemic disadvantage, could do worse than asking themselves what Mitch McConnell would do. The normal order, and norms in general, are meaningless to McConnell, and they will probably be just as meaningless to John Thune when he becomes Senate Majority Leader. When it comes to a choice between power and institutional norms, the Republican Party will take more power every time.  

The recently reelected senator and newly elected representative North Dakota will send to Congress certainly won’t break that mold. They have both demonstrated that their bar for ethical conduct in office is set no higher than “not illegal.” The Supreme Court has essentially removed even that barrier for Donald Trump, so the system is rigged for an unaccountable White House and a dangerous imbalance in power that favors a president willing to ignore the norms.

This is not what the Founders and Framers intended. They purposely created a system that protected individuals from the tyranny of the majority, but they would be even less fond of Saddam Hussein or Bashar al-Assad’s tyranny of the minority. That’s exactly where the Republican Party wants to take us: permanent minority rule. The only way to prevent it may be to at least occasionally follow McConnell’s example and put power and systemic advantage—or at least the prevention of artificial disadvantage—first.