by Ryan Fisher, resident editor
Public confidence in the federal government has reached historic lows. Only 20 percent of Americans trust the government in Washington, D.C., to do what is right most or all of the time. Congressional job approval hovers at 17 percent, and public opinion of the Supreme Court has tightened to 53 percent approval and 43 percent disapproval. Once a year, if not more, the country confronts the prospect of a government shutdown as Congress fails the most essential task of a legislature: passing a budget. In other democracies, such a failure would trigger a snap election. In the U.S., continuing without tangible reform imposes severe consequences on the public. Carbon emissions have global average temperatures on course to swell up to 3.1 degrees Celsius by 2100; COVID-19 has killed over 230,000 Americans; wealth inequality continues to expand as millions risk eviction amid the pandemic; and the President refuses to commit to a peaceful transition of power. Yet, can Americans reasonably expect their government to remedy these crises through major policy without reform? The answer is disheartening and simple: no.
Americans who want a responsive and functional politics, not one where policy debate often feels futile, must reform the structure of government. A disorienting array of veto points and high-stake conflicts plague the legislative and governing process. Abolishing the filibuster, implementing Supreme Court term limits, and reorganizing the voting system can restore the government’s capacity to enact major policy and increase responsiveness. With these democratic reforms, citizens could vote by judging enacted policies and not merely on partisan identity or the promise of policies with little hope for implementation. Fortunately, the Constitution doesn’t impose many of the barriers to policymaking, and the U.S. can democratize federal governance through rule changes and statutes.
In Congress, the Senate’s legislative filibuster has killed popular legislation from immigration reform and labor protections to healthcare and green energy. First established in 1917, the filibuster requires a three-fifths supermajority to end debate on a bill and hold a vote, and it has no constitutional basis. As partisan gridlock intensified in recent decades, its use has skyrocketed.
Supporters of the filibuster often claim that it protects minority rights and forces compromise. In reality, the filibuster denies duly elected congressional majorities the ability to govern and creates legislative paralysis. As a result, this arbitrary rule distorts the democratic process and denies citizens the information they need to judge their representatives, as it shortens Senators’ voting records and prevents majorities from implementing policies the public elected them to pass. The Constitution already provides ample space for compromise and consideration of policy through a bicameral legislature, checks and balances, and the separation of powers. In the words of President Obama, removing this “Jim Crow relic” would allow Congress to fulfill democracy and confront national crises more effectively.
Most recently witnessed in Justice Amy Coney Barrett’s confirmation to the Supreme Court, judicial appointments pose a paralyzing conflict point in Congress. Senate Republicans blocked dozens of nominees to the federal bench during President Obama’s tenure in office and exploited those vacancies to fill the courts with conservative judges under President Trump. Though constitutional, this practice defies Senate norms and stacks the courts against popular policies, including the Affordable Care Act. Moreover, President Trump and fellow Republicans pressed for Justice Barrett’s confirmation before November 3 in case they need this unelected panel of judges to decide the election. While Republican presidential nominees have won the popular vote only once in the last three decades, Republican presidents have appointed 7 of the last 11 Supreme Court justices confirmed since 1990. Without reform, the Court faces an incoming crisis of democratic legitimacy.
Fortunately, the Constitution only requires federal judges, including Supreme Court justices, to have life tenure on the federal bench. It doesn’t provide justices the right to serve on the Supreme Court for life, and Congress could impose term limits on the Court to regularize the confirmation process. Term limit proposals, most often recommending an 18-year term limit, would cycle justices to the federal appellate courts at the end of their terms and ensure a new justice is appointed every two years.
Regularizing Supreme Court appointments can de-escalate the contention of Court nominations. The current process unequally distributes vacancies by a game of chance, prevents the Court from being democratically informed by voters and forces each nomination into a high-stakes partisan battle. Term limits will assure the Court maintains legitimacy and independence in the long run, but on their own do not protect democracy in the near term. By creating a backlog of judicial vacancies under President Obama, Senate Republicans under President Trump have now confirmed nearly a third of federal judges. Additionally, by refusing to consider Merrick Garland’s nomination in 2016, citing the upcoming election, and then defying their own precedent in confirming Justice Barrett, Republicans have already packed the courts to obstruct democracy. If Democrats win a Senate majority, robust court reform must establish term limits, add two justices to the Court, and implement statutory rule changes to require the Senate to consider judicial nominations within a specified timeframe. Together, these reforms can foster an independent and democratic federal judiciary that neither party can weaponize to strike down popular legislation.
Structural changes in Congress and the courts can empower the federal government to enact policy for a nation in crisis, but these reforms require an electoral system that democratically informs legislation. Presently, the U.S. lacks an equal and representative voting system. Especially since the Supreme Court gutted Section V of the Voting Rights Act in Shelby County v. Holder (2013), voter suppression has risen across the country. Prior to this decision, the Department of Justice or federal courts had to approve new voting laws in states and counties with a history of voter discrimination, termed preclearence. From 2012 to 2018, jurisdictions previously covered by preclearance closed 1,688 polling places. In North Carolina, the U.S. Fourth Circuit Court of Appeals found that newly implemented voting restrictions “target African Americans with almost surgical precision.” Furthermore, across the country, majority-minority communities have fewer polling places and longer lines than majority-white communities.
On top of such voter suppression, the over 4 million Americans living in U.S. territories and the District of Columbia suffer disenfranchisement with no voting representatives in Congress, and citizens in U.S. territories cannot vote in presidential elections. For citizens in the fifty states, the unrepresentative Electoral College decides the president and has nullified the popular vote in two of the last five presidential elections. Returning democratic legitimacy to the American political system requires not only structural reform of government, but it also necessitates rehabilitating our voting system. The U.S. can start by expanding voting access, restoring the Voting Rights Act, neutralizing the Electoral College and extending Congressional representation, and statehood if desired, to DC, Puerto Rico and other territories.
Fortunately, the U.S. has overcome similar political crises in its history. At the turn of the twentieth century, Americans faced a nation plagued by corrupt political machines, extreme inequality and deteriorating democracy. Yet in response, citizens across the country organized into a movement that reshaped the government. Progressives won newfound political reforms that included popular referenda, the direct election of senators and women’s suffrage. Americans can draw inspiration from Progressive-Era activism to resolve the paralysis and inequity of our politics and guarantee democratic legitimacy. But to do so, the public must fight for democracy at the ballot box and organize to achieve structural reform across the federal government.
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