Beyond Damage Control: Institutional Reform
By: Laura Nelson
Tags: Supreme Court, Political Philosophy, Electoral College, Senate, 2020 Presidential Race

(Photo by Element5 Digital on Unsplash)

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Well, it ain’t over. And even when it is over, it won’t be over.

As I write, it seems as if Biden will win the Electoral College by a hair. But at the moment Biden not only has close to 4 million more popular votes than Trump: he has beaten Obama’s popular vote count in 2008 and thus has set a record for the total number of votes cast for any presidential candidate in US history. And still, Biden hasn’t yet won the office.

This is, frankly, madness. Even more insane than the fact that the Trump regime is preparing to throw any legal challenge it can against the electoral results to see if any of them stick. The “damage control” election that I understood this one to be has come to pass and, hopefully, we will have dodged one bullet aimed at the heart of American Liberal Republican Democracy.

But any more of these skin-of-the-teeth victories will be the death of us, and I am not talking death brought on by angst on an individual level. That can be palliated by meditation, social media and cable news fasting, listening to Vivaldi, and Sauvignon Blanc, all of which have a much-appreciated calming effect. I am talking about the death of us as members of a political society. And much of what is going on in this interim period where votes are counted and strategies formulated is not encouraging. When the smoke clears, we need to get beyond damage control and get real about institutional changes that are needed if the US body politic is to survive. Otherwise the patient will die, and it we will have no one to blame but ourselves.

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One might have predicted that Centrist Liberals and Progressive Leftists would snipe at each other in the wake of an election that shows Right-wing Populist Nationalism and economic Libertarianism to be very much alive, even if they seem to have lost this electoral battle. Some of the Centrist Liberals have argued that the Democratic party needs to tone down its rhetoric, and never utter the words “Black Lives Matter”, “LGBTQ rights”, and “democratic socialism” ever again. Some of the Progressive Leftists have drawn the opposite conclusion, affirming the counterfactual conditional that if the Democrats had run Bernie Sanders or, to a lesser degree, Elizabeth Warren, the election would have been a blowout, as much a rejection of the Democratic old guard as the Republican Conservative right, whether establishment or alt. It would be nice if we all just didn’t go there for a while. We need to take a deep breath before we start thinking of circular firing squads.

While I tack closer to the latter, Sanders-Warren form of progressivism, I despair of the doctrinaire purism that seems to have taken hold in large swaths of that camp. When a podcast lambasted Noam Chomsky, of all people, as out of touch and over the hill for supporting Biden as a bulwark against the ecological murderousness of Trump, I began to understand both how the Left tends to eat its own, and its penchant to miss the very point of “the political” at the same time they try to defend it. But it’s also clear to me that the bland establishment centrism advocated by Mark Lilla and others defends a form of Liberal Democracy that makes no real difference to a nation deeply distressed by both economic and social injustices. It also ignores the hard work that Progressive and Left-populist grassroots groups, the heart of the Democratic Party’s Warren-Sanders wing, did the lion’s share of mobilizing voters to flip Pennsylvania, Wisconsin, Michigan, and perhaps even Georgia at this point. Would such voters be inspired by a centrist appeal toward “change, but not too much change, since, well, that would actually change things?” I have my doubts.

I think that both points of view, the “moderate” and the “radical”, are missing the larger, more urgent point: that before one can wonk on and deliberate about policy and political theory, serious institutional change must take place in the framework of the Federal government. Because if it doesn’t, the USA will cease to be even a nominally functional Liberal Democratic Republic. It won’t even be anarchy, which is after all a respectable political position. (Chomsky’s, in fact.) It will be chaos. The chaos which we are experiencing now; and the fact that few of the voting public recognize it that we are all in a chaotic free-fall is a key part of the problem.

The Electoral College is merely freakish at this point. It makes the presidential votes of New Yorkers, Californians, and residents of all the other non-swing-states pretty much meaningless. This is old, old news. Few like it, but it has not been eliminated through a Constitutional Amendment because the Constitution is insanely difficult to amend — and this by design.

I can understand, if not exactly endorse, James Madison’s attempt at constructing a procedural republic at the time he drafted the Constitution. By making its precepts vague, and by making it difficult to change or evade, he enabled the Constitution to handle and limit the power of those “factions” which, by pressing their interests against their counterparts’, promote either political instability or, if victorious, political tyranny. Madison’s procedural republic will “work” if politics is basically a matter of creating a modus vivendi where wealthy agrarian, Jeffersonian oligarchs (many of whom being slaveholders) compete against wealthy commercial, Hamiltonian oligarchs (many of whom desire only to exploit or exclude hoi polloi). But it is not 1787 anymore (not that 1787 was all that hot to begin with). The Constitution does not work, if it ever did work for free and equal citizens regardless of their station in life, regardless of race or gender or class. Unless the Electoral College goes by the boards, it is likely that, in an ideologically polarized nation such as the US, it will replay in 2024, 2028, etc. ad nauseam.

There is far more institutional change that needs to be addressed, far beyond the scope of this essay. But it is important to mention at least four items where change is desperately needed. First, the Presidency is far, far too powerful. The powers of the presidency had, in the republic prior to World War II, been hemmed-in largely by norm rather than by rule, with the result that the norms were chipped away by executive chicanery, bit by bit, until Donald Trump smashed them to dust with ease and little resistance from Congress and the Courts.

Second, the Senate is undemocratic and unrepresentative. This also is old, old news. That Wyoming, the least populous state in the union, has as many senators as California, the most populous, systematically degrades the power of Californian citizens to have their say through their representatives in the upper chamber. It needs to be reformed, either by expansion with Senators apportioned by population, or abolished altogether. Mitch McConnell was never elected to be proconsul to Trump, lording it over the entire nation from his perch in Kentucky’s seat in the Senate chamber.

Third, the Supreme Court is both too independently powerful, insofar as a “stacked” court can invalidate popular and just policies on political whim, covered over with a thin pretext-coat of legal varnish; and not independently powerful enough, since the President and the Senate can play all sorts of political games with its composition, without paying any price. The difference between the Merrick Garland and Amy Coney Barrett candidacies have made the sheer cynicism of the Republicans on this matter clear as glass. While legal reasoning is distinguishable from political reasoning about effective policies, it is naïve to think that one’s political philosophy has no bearing on one’s legal philosophy, one’s jurisprudence. It is time we give the idea of the absolute separation of law and politics a decent burial. In doing so, it is insane to think that a lifetime sinecure on the highest court of the land is defensible. That has to go.

Finally, the corrupting influence of big money and social media alike needs to be addressed. Corporate influence, through lobbying and media disinformation, helps miseducate the electorate to endorse policies that are not only unjust but against their own interests and benefit. But in the past two Presidential election cycles it is social media that has played the chief villain. Social Media discourages critical, analytical thought, expressed by the give-and-take of reasons and with an assumption of good faith on the part of those with whom you disagree. That is gone, and unless we get it back, a key condition of Liberal Republican Democracy will vanish. Social Media in general needs to be tightly regulated. (Facebook, in particular, needs to be regulated out of existence.) Far from being an attack on free speech, public control of social media is its precondition.

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Liberals, Progressives, Left Populists, Social Democrats and Democratic Socialists, even Conservative never-Trumpers, have had a rough couple of weeks. It is tempting to think that, if things continue to go the way they seem to be going, they can breathe a sigh of relief, and conclude that things are slowly getting back to equilibrium. On this account, the 2020 election has proven that the United States of America lost its heart and mind only temporarily, and that all shall be well and all manner of thing shall be well. This sense of relief is understandable. We all need to take a deep breath. But it is not responsible. It is not commendable. It is not honest.

The truth is that, except for those that have struggled and fought their way to the top of the power heap (with the unacknowledged help of bottom-up organizers and a demographic that is changing, however glacially, toward liberty, equality, and solidarity), nothing has really changed at all. Even if all the institutional changes advocated above come to pass — hardly a given — close to half the electorate has, for whatever reason, concluded that Donald Trump was worth voting for, either as a form of damage control from their perspective, or because they view him as a socio-cultural and political savior, or, in a more paltry sense, because they think he is good for their 401k accounts. Trumpism, even if the Republican establishment rejects it, is not going away any time soon.

That close of half the electorate is okay with someone whose depraved indifference to COVID-19 has led to over 230,000 deaths and counting, has led to children in cages and children separated from parents who cannot be located, to forced sterilizations, to a crashed economy, and manifested utter indifference to the very middle and working classes that he has claimed to be the champion, has led to monumental corruption, influence peddling, and self-dealing — has led to all this, well, this is no trivial phenomenon. It is a sign that both the wreckage of the past two years and the indefensibly close race that is now concluding is not just a problem of institutions. It is a problem of political culture. There is no rational, ethical, political reason why it should have been this close. The problem is not limited to institutional structures. The problem is us.

Cultural change cannot be brought about by fiat. It isn’t easy. But unless the USA figures out a way to imagine and entrench a Liberal Democratic Republican political culture, to sustain, normatively, its institutions and public practices, the disasters of 2016 and 2020 will be recurring, oscillating events. I will discuss this in a subsequent essay, but let me conclude with this ambivalent sentiment: it may be time to breathe a sigh of relief and get at least one good night’s sleep, but the travails are not over yet. Not by a long shot.

I do not relish being the bringer of bad news in the wake of good news. But it wouldn’t be honest to do otherwise.