A lot of our current political dysfunction is rooted in our deeply imperfect Constitution. We tend to view our founding documents, and their authors, as unified around certain principles of limited government. But the framers were actually deeply divided, and the Constitution they created was a mishmash of compromises. It successfully created a series of checks against what many of framers feared could develop into rule by a tyrannical majority—so small states were given power equal to the largest in the Senate, whose members the framers envisioned being chosen by state legislatures rather than through direct elections. A judicial branch was established to sort out the disputes that would inevitably arise in a federalist system. But the Constitution also contains clauses that were left vague because the framers couldn’t come to an agreement on defining questions, such as how slaves would be counted or the power of the federal government and the rights reserved to the states.
When this delicate balance of powers failed, it did so spectacularly, as it did during the Civil War. More often, it led to political stalemate and dysfunction. But for much of the 20th century, it worked, more or less, because the major parties adhered to a set of democratic norms. But that is no longer something we can take for granted. With the increasing radicalization of the GOP, one of our major parties has abandoned these norms in order to maintain power. Whether it’s “extreme gerrymandering,” using the contrived specter of “voter fraud” to impose ID laws that depress Democratic turnout, or abusing the vague “advice and consent” power to block nominees in the Senate, it is an asymmetrical war. And for good reason: One party has an incentive to limit democratic participation and the other doesn’t. As an analysis of 2012 data by Sean McElwee illustrated, nonvoters fall significantly to the left of the voting population.
The maximalist agenda that the GOP has pursued under Trump—the second Republican president to be elected with a minority of votes in the past 20 years—appears to be opening progressives’ eyes to this sorry state of affairs. And one political scientist is now calling for Dems to start employing the same kind of procedural combat that their opponents employ to fight not only for power but also for a pluralistic democracy that’s more responsive to the public.
In his new book, It’s Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics, David Faris, a professor at Roosevelt University, argues that Democrats—and progressives more broadly—must be prepared to use whatever constitutionally permissible means are necessary to fight back.
I spoke with Faris about his book last week. You can listen to our discussion in the player above, or read a transcript that has been edited for length and clarity below.
Joshua Holland: Republicans appear willing to do anything to exercise and maintain power. You’re calling for Democrats to fight fire with fire, is that right?
David Faris: Absolutely. We’ve seen an escalating process of institutional and procedural warfare being used against us for the last 20 years, and it’s long past time that Democrats, and the left more broadly, started to understand what was happening to them and to use the powers that they will have [when they regain control of Congress and the White House] to fight back in kind.
JH: Many readers will be familiar with some of the undemocratic moves that the Republican party has undertaken in recent years. There was a study conducted by researchers at UC San Diego which found that strict voter-ID laws suppress the vote of Democrats by 8.8 percent and Republicans by 3.6 percent. Then there are the structural imbalances, like California having the same number of Senate seats, with millions and millions of people, as a sparsely populated state like Wyoming or Montana. What are some of the other issues that you look at in the book?
DF: In some cases, Republicans have rigged the system. In others, the institutions are kind of stacked against us based on how the Constitution is written and how it’s been interpreted. The most outrageous example of institutional warfare was the Merrick Garland fiasco. I mean, every time I think about that, it makes my blood boil, but—
JH: Me too.
DF: It’s just outrageous. They stole a seat on the Supreme Court, and they did so because the Constitution is not specific enough about what “advice and consent” means. So there you have a very good example of Republicans finding a kind of a loophole in the Constitution and exploiting it really ruthlessly when they had the opportunity.
A key point of the book is that a lot of the things that drive us most crazy about are political system are not written into the Constitution at all. The Constitution doesn’t have much to say at all about voting rights, so the reality is that a lot of these electoral advantages are vulnerable to a dedicated Democratic majority rewriting the laws and playing hardball. Fighting dirty really means leveling the playing field, fighting back in kind, passing a National Voting Rights Act that will eliminate these voter-ID laws, that will restore voting rights for all ex-felons, that will create a national voting holiday, that will automatically register all Americans to vote.
This is low-hanging fruit. This could be done in a month the next time the Democrats take power, and so the book is kind of a call to arms. We need to get smart about these things. We need to fight, and we need to level the playing field, and we can defend these things as a project to improve the long-term performance of American democracy overall, to build trust in the system.
JH: Let’s say hypothetically that the “blue wave” that we’re all hoping for materializes in November, and then Trump loses in 2020. So if Dems end up in January 2021 with the White House and solid majorities in both chambers of Congress, what are you proposing they do other than the things that we’ve already discussed?
DF: One of the first things they’re going to have to do, unless they win a supermajority in Senate, is to eliminate the filibuster. The filibuster is a sort of antidemocratic relic of a bygone age, and I don’t think it’s justifiable. So once they get rid of the filibuster, Democrats can do all kinds of things, the first of which should be granting statehood to Washington, DC, and to Puerto Rico. The situation in those places is just outrageous from a small-d-democratic perspective. They don’t have voting representation in Congress. DC doesn’t really control its own city budget. These could be states that would easily send four Democratic senators to DC. It would instantly change the strategic balance in the Senate.
If we had done this already, we’d have the Senate right now, and we would not have to worry about Ruth Bader Ginsburg’s health or Anthony Kennedy’s health. We could just stonewall Trump and return the favor of blocking Merrick Garland by not approving any of his nominees.
A longer-term project would be to really seriously think about breaking California up into six or seven pieces. Instead of sending two senators for the 38 million people of California, we could send 14. It would change the math in the electoral college, and it’s also not unconstitutional. It would be a heavier lift, it would take longer—this would not be a day-one thing—but it’s something the party needs to get serious about. So much of the energy on the left is in California, but it’s kind of bottled up right now in those two Senate seats.
We also need to really think hard about how we elect the House of Representatives. Last year, Republicans won the national popular vote for the House by a single percentage point, but still have this huge majority of seats. It’s not the first time that’s happened. In 2012, Democrats won the national popular vote for the House and they still lost the chamber by a dramatic margin. I have a plan in the book about how to move the whole country past these destructive gerrymandering battles and create larger districts and increase the size of the House. These moves would make the results of those elections more proportional, make it harder for Democrats to win popular votes but lose control of the chamber. I also think it would invite third, fourth, and fifth parties into the process in a more meaningful way than they are now.
The elections clause of the Constitution clearly gives Congress the right to set and alter policies for federal elections, so there’s nothing stopping us from doing that except a sort of lack of imagination and a lack of will. I’d probably start with those things and the National Voting Rights Act. So think of it as a kind of a blitzkrieg in the first three months of the next Democratic administration. If they have control of Congress, they could really take some important steps to level the electoral playing field moving forward.
JH: Let me play devil’s advocate here. Probably the most controversial thing you call for in the book is packing the Supreme Court to get a progressive majority—that is, adding more justices to the Court to change its ideological balance. The question is, where does it end? If you packed the courts, you’d recover a Supreme Court seat that was stolen when Mitch McConnell blocked Merrick Garland for a year. But doesn’t that give the next Republican president and Congress a precedent for doing the same thing? If both parties stop respecting the minority’s rights to influence the government, if both parties no longer feel some fealty towards the norms that made these institutions function, where does that end?
DF: That’s a question I wrestled with when I was writing this book. I do think that the Merrick Garland theft was a much more serious escalation than we think. It’s not just about this one seat on the court. Neil Gorsuch is illegitimate in my mind, and there’s no question about it. But if you think about the underlying norms about how Supreme Court appointments get made, they are already gone. Prior to the election, when Republicans thought that they were going to lose, some of them talked about how if they controlled the Senate and Hillary Clinton won the election, they weren’t going to let her fill a Supreme Court seat.
So the other side is already deeply radicalized. There are plans floating around the right-wing judicial universe that are very similar to what I’m proposing in this book, and they are not by fringe figures. There are articles out there about jurisdiction stripping, which mean Congress passing a law depriving the Supreme Court of its ability to rule on certain issues, and frankly that the entire architecture of judicial review is in jeopardy based on the increasing radicalization of the right.
But I am concerned about retaliation in the future. I think one of the ways that Democrats can describe what they’re doing is to offer an olive branch and say, “Okay, instead of packing the courts, we could do this other thing,” and that would be passing a constitutional amendment to end lifetime tenure on the Supreme Court, and in the federal courts more broadly. Democrats [could] pitch it as, look, we’re the ones who actually want to take the partisan temperature down. We want to end these destructive partisan battles over court appointments by more explicitly spelling out the constitutional language about how they get made and when they get made, how many appointments each president is entitled to, rather than it being what it is now, which is a lottery. We say each president gets to appoint two justices in every four-year term, people leave after 18 years, so we don’t have to appoint Doogie Howser types to the court anymore. We can go with people in their late 50s and early 60s, who might not have 30 years in them, but might be a better choice in terms of their underlying abilities.
At the end of the day, I’m pretty convinced that we’re not that far away from the right choosing to do some of these things first, and the last thing I would like to see is Democrats maintaining this commitment to institutionalism and pragmatism and then once again being outflanked.
JH: One thing that’s inspiring conservatives to do all of these things is a sense that they’re facing demographic headwinds—that their core coalition, which Alan Abramowitz described as married white people who identify as Christians—is rapidly shrinking. I don’t buy the “demographics are destiny” argument, but the demographics certainly represent a coming advantage, and I think that’s pretty clearly recognized by both sides.
The other thing is that they know that the policy preferences that they advance tend to be unpopular. Cutting taxes on the wealthy and killing safety-net programs doesn’t poll well, while increasing the minimum wage and protecting the environment do.
Do you think Democrats have, on some level, told themselves, “Well, you know, young people skew our way and we have this growing Latino vote and they’re skewing our way, the Asian-American vote as well, and our policies are popular,” and that’s why they haven’t fought back in the same way?
DF: I think it does have something to do with that. I think there’s been a little bit too much belief in the sort of long-term demographic trends. If you remember [John Judis and] Ruy Teixeira’s book, The Emerging Democratic Majority, was published 14 years ago and things have not exactly worked out as we thought they would. I think that, at least prior to 2016, there was a sense that, okay, well, demography is on our side and surely, surely the American people will punish the Republicans for the way they’ve been behaving over the last eight years, and that just didn’t happen.
That was one of the most depressing things to me about the 2016 election. I also had this sense that surely, right will win out here—that people will look at what Republicans have done in office with their obstructionism and destruction of norms, and they will vote them out of office. And they didn’t do that. So I think that we can’t afford to wait for these demographic trends to fully vest. We need to get creative about our procedural warfare.
JH: And, as you point out, we don’t know where these antidemocratic policies might end. Just recently, we saw the introduction of a citizenship question into the Census. It is yet another creative way of gaming the system in a way that advantages Republicans. So right now, we’re seeing people who are very savvy about these things debating by what margin Democrats need to win the popular vote in order to secure a majority in the House of Representatives. It should be 50 percent plus one vote, and yet because of what the Brennan Center calls “extreme gerrymandering”—as well as an inefficient distribution of Democratic votes—we’re hearing that they actually need to win by eight percentage points or more to actually take the House, and that’s just maddeningly undemocratic.
I would say that everything that you say in the book can be framed as a pro-small-d-democracy agenda, and I think it’s really important that the Democrats pursue this.
DF: Yeah, some of the ways that our procedures lead to undemocratic outcomes are really outrageous. And one of the big advantages of doing some these things would be that they will put us in a much better position for the 2022 midterms if we are able to take power in 2020. Restoring voting rights for millions of people, creating an Election Day holiday and passing laws that make House results fairer, makes it much less likely that we’re just going to turn power right back over to these guys in 2022, like we did last time. Because the reality is that the trajectory of the Republican Party right now is so dangerous, so destructive, that I really, really believe the Democrats need to win, three, four, five national elections in a row in order to bring this country back onto the track that it needs to be.
JH: I think you’re right, and I think that the best hope for a silver lining in the age of Trump is that his victory in the Electoral College along with events like the theft of the Supreme Court are finally opening people’s eyes up to the fact that it is good to have civility and bipartisanship and all of that in the abstract, but when you get down to where the rubber meets the road, we have to exercise power if we want to maintain our values, and those values include pluralistic liberal democracy.
David Faris, I want to thank you so much for taking the time to speak with me today. I really do appreciate it.
DF: It was a pleasure, Josh.