Biden: Should He End Electoral College, Pack Courts to Fix Democracy? - Rolling Stone
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How Do We Fix American Democracy?

Would ending the filibuster, abolishing the Electoral College, and packing the Supreme Court only inflame America’s crippling polarization — or cure it?

WASHINGTON,DC-JAN19:  The Women's March, January 19th, 2019. (Photo by Evelyn Hockstein/For The Washington Post via Getty Images)WASHINGTON,DC-JAN19:  The Women's March, January 19th, 2019. (Photo by Evelyn Hockstein/For The Washington Post via Getty Images)

The Women's March, January 19th, 2019.

Evelyn Hockstein/The Washington Post/Getty Images

In the heady days after the 2016 election, a pair of political scientists, Valerie Bunce and Mark Beissinger, posed an unsettling question: “How might American democracy end?” Until Donald Trump’s ascent to the White House, such a question felt, well, academic. The United States was the longest-running democracy on Earth; its Constitution and system of checks and balances were a model for the world. Yet recent developments in the U.S., Bunce and Beissinger wrote, “bear an uncomfortable resemblance to those that foreshadowed the decline of democracy elsewhere in the world (Poland, Hungary, and Russia, and earlier, Latin America in the 1960s and interwar Europe).” For these two experts in the rise and fall of democracies, Trump’s victory and the conditions that enabled it were “disconcertingly familiar.”

They were right to be alarmed. Trump has been following the strongman playbook to a tee ever since he took office, calling for the imprisonment of his opponent, doling out government jobs to family members and pardons to political allies, lining his pockets with U.S. taxpayer and foreign funds spent at his properties, trying to fire a special counsel appointed by his own Justice Department, intimidating witnesses in criminal trials, and behaving in every way as if the rule of law didn’t apply to him. This year alone, he has attacked the integrity of our electoral process with lies about voter fraud, refused to commit to a peaceful transfer of power if he loses, floated the idea of postponing Election Day, and publicly demanded that his attorney general arrest his election rival for imaginary crimes. With just weeks until the election, the editorial pages of The Washington Post and The New York Times are awash in hand-wringing over the likelihood that Trump will not accept the results if he loses, the violence that might ensue, and the possibility of military force to quell the unrest. In short, the American experiment is teetering above the abyss.

To be clear, Trump accelerated a crisis that was already underway. According to the pro-democracy group Bright Line Watch, American democracy flatlined in the early to mid-2000s after centuries of slow but steady improvement. The signs were plain to see: There was the contested 2000 presidential election, when the popular-vote winner did not win the Electoral College and five unelected Supreme Court justices settled the outcome. The series of court decisions, culminating with the disastrous Citizens United v. FEC, that unleashed a tidal wave of corporate money into our elections and diminished the power and influence of individual voters. There was also the Supreme Court’s 2013 decision in Shelby County v. Holder, which gutted a key provision of the Voting Rights Act of 1965 and opened the door yet again to widespread disenfranchisement of black and brown voters, including the hours-long wait times to cast a ballot that we’re seeing right now. Then there’s the extreme gerrymandering that has allowed legislators to choose their constituents rather than the other way around, diluting the power of black and brown voters and ushering in minority rule by Republicans at both the state and federal levels. And it could get much worse. Consider this: If current demographic and geographic trends continue, by 2040 some 70 percent of the population will be represented by just 30 percent of U.S. senators.

But if American democracy is hanging by a thread, it’s also not too late to pull back from the brink, according to historians, political scientists, and other experts interviewed by Rolling Stone. If elected, Joe Biden would have the chance and maybe even a mandate to make transformative repairs to our democracy. The question is how exactly to go about it. Through moderate reforms and an eye toward bipartisan compromise? Or through dramatic if long overdue changes such as ending the filibuster, abolishing the Electoral College, and expanding the Supreme Court? Should a truth commission be set up to further investigate Trump’s possible crimes? And would such steps further inflame the country’s crippling polarization — or cure it?

The notion that the dark days of the Trump presidency could give way to substantial reform is not without precedent. The rampant corruption of the late 1800s led to the Progressive Era, the direct election of U.S. senators, and the nation’s first campaign-finance laws. Watergate ushered in a wave of young, reform-minded lawmakers (the “Watergate babies”) and a raft of new laws and agencies dedicated to clean elections, fighting corruption, and the impartial rule of law. This country has endured moments of despotism and polarization — the Palmer raids of 1919 and 1920, the Red Scare of the 1950s, and the political violence of the 1960s — and managed to recover. “This is what democracy is all about,” says Sheri Berman, a political science professor at Barnard University. “It’s about your ability to correct course.”

What’s so perilous about the current moment, experts say, is the public’s growing belief that they have little or no say over their government and their future — that we’ve lost faith in that ability to correct course. A 2019 Gallup poll found that just four in 10 Americans had confidence in the honesty of their elections; the U.S. ranked 27th out of 32 nations surveyed, above only Lithuania, Latvia, Turkey, Chile, and Mexico. Twice as many Americans believe our democracy is getting weaker rather than stronger, according to the human-rights group Freedom House. Public trust in the federal government hit a near-historic low of 17 percent last year. And while older Americans say democracy is a system worth preserving, greater numbers of young people are open to non-democracies and governments led by a “strong leader.” “Democracy depends on people believing that it is fair,” says Ian Bassin, co-founder and executive director of Protect Democracy, a nonpartisan group dedicated to stopping authoritarianism in America. “When you reach a tipping point where people think they’re not being represented, democracy cannot survive.”

A failure to act swiftly and rebuild the public’s faith in American democracy could lead us down the path of a nation like Lebanon, where the social-cultural fabric is so tattered that politics and government all but cease to function. “America cannot continue as red versus blue,” says Rachel Kleinfeld, a senior fellow at the Carnegie Endowment for International Peace. “America needs a story that realizes we’re both locked in the same family together and we can only progress together.” That’s the story Biden is telling in his presidential campaign. The former vice president has promised to “lower the temperature” in American politics and restore “the soul” of the nation. But feel-good platitudes alone won’t do much to rebuild the trust in our democracy. “Activities and rhetoric that bring us together for deeper understanding can be great as long as they build that deeper understanding,” Kleinfeld says. “But they won’t change the structural dynamics that deepen the polarization. Ultimately, you need both. The structural can drive the emotional more than the emotional can drive the structural.”

The good news is that there’s no shortage of concrete steps Biden could take to rebuild Americans’ trust in government, including many he could do on his own, regardless of which party controls the House and Senate. And if the Trump years have taught us anything, it is the awesome power of the presidency to set a tone and an example for the country. He could start by disclosing all of his personal finances and divesting from any business that brings with it the faintest whiff of a conflict of interest; his top aides and Cabinet secretaries should all do the same. He could replace every Trump crony serving as an inspector general with a public servant who actually wants to root out waste and fraud. He could institute new nepotism rules to avoid the appearance of family members landing cushy jobs (call it the Hunter rule.) He could disclose all visitors to the White House. He could bar corporate lobbyists from serving in his administration and government employees from taking jobs in the industries they regulated. “After this administration’s dismal record on ethics issues, Biden needs to make extraordinary efforts to try to build back up public confidence — and he needs to do it right away,’” says Meredith McGehee, executive director of the bipartisan group Issue One.

If Democrats win control of both houses of Congress as well as the White House, the range of possible reforms dramatically expands. The Democratic Party already signaled that reform aimed at restoring fairness in our elections would be a priority when, after taking back the House in 2019, the newly elected Democratic majority made passing H.R. 1 their first order of business — a sweeping set of laws to make voter registration automatic, crack down on voter suppression, rein in big-money Super PACs, and drag dark money into the sunlight. (The bill went nowhere in the GOP-led Senate.)

This fall, Democrats unveiled a companion to H.R. 1 called the Protecting Our Democracy Act, though it might as well be named the Cleaning Up Donald Trump’s Mess Act. The bill would improve oversight of presidential pardons; outlaw self-enrichment by a president or vice president from domestic or foreign sources; prevent the abuse of presidential emergency declarations (like when Trump tried to bypass Congress to build his border wall); strengthen election laws to clarify that foreign assistance is illegal for federal candidates to accept; and make it harder to fire inspectors general for political purposes. Some of these policies have bipartisan support, like reining in the president’s increasingly unilateral war powers, and could be passed by Congress in existing legislation.

Biden could also swiftly nominate, and a Democratic Senate confirm, new commissioners to the Federal Election Commission and the National Labor Rights Board, restoring those once-vital agencies to a functioning state after years of partisan gridlock have left them effectively neutered.

Fighting corruption and checking presidential power aren’t smart solely from a trust-in-government standpoint; they’re also smart politics. If the Democratic Party ever decides to reclaim its roots as the party of working people and tries to win back rural voters, rooting out corruption and battling corporate interests may be the surest way to do it. “If you look at the polling that we’ve done, the top messages that resonate are Trump’s anti-corruption messages, like drain the swamp,” says Matt Hildreth, executive director of, a communications hub for progressive organizing in rural America. “People in rural communities really support that anti-corporate message.”

But many argue that the Trump years have laid bare weaknesses in our democratic system that demand bolder structural changes, such as ending the filibuster, reforming the Supreme Court, instituting ranked-choice voting, and abolishing the Electoral College. “Democrats win when they make the argument about making capitalism more moral,” says Michael Kazin, a Georgetown professor and historian. If it takes ending the filibuster — meaning that only a simple majority, rather than 60 votes, would be needed to bring legislation to a vote in the Senate — to ensure universal health care, affordable housing, and aggressive action on climate change, then “Democrats should play hardball politics, but with principle,” Kazin says.

Ending the filibuster is the easiest of these structural reforms, requiring a simple majority vote in a Democratic-controlled Senate if they use the so-called nuclear option to get it done. Whether moderate Senate Democrats would support this remains an open question. Historically, Biden has not supported ending the filibuster but signaled in July that he was open to it: “It’s going to depend how obstreperous [Republicans] become,” he told The New York Times. “But I think you’re just going to have to take a look at it.”

Abolishing the Electoral College, by contrast, would be much harder to accomplish, as it would require a constitutional amendment and thus a two-thirds majority vote of the U.S. House and Senate or the approval of two-thirds of state legislatures, and then the ratification of 38 out of 50 states. Republican-led states would have little incentive to approve such an amendment, as the existence of the Electoral College has twice in the past two decades delivered their party the presidency without winning the popular vote (Trump and George W. Bush). Going into 2020, Republicans hold 60 percent of all state legislatures — so even if Democrats controlled Washington, it is unlikely they would have the muscle to pull two-thirds of the states with them.

Still, there is a long, bipartisan record going back to the 1800s of Democrats and Republicans proposing changes to the way we elect the president. Prominent historians interviewed for this story agreed that the Electoral College is outdated and needs to go, but they split over whether it should take priority in a Biden administration. Michael Kazin, who identifies as a democratic socialist, listed it as his top structural reform to American democracy. By contrast, Julian Zelizer, a Princeton historian, told me that Biden’s would be a “clean-up presidency” dedicated to leading the country out of the coronavirus pandemic and repairing the damage Trump has done to democratic norms. “This is a presidency that will be defined, in my view, by if he succeeds in those efforts,” Zelizer says. “There’s no time for a New Deal or a Great Society.”

The other trendy idea on the left is expanding the Supreme Court to more than nine seats to dilute the influence of the court’s conservative majority, as FDR tried (and failed) to do in the 1930s to make the court more favorable to his New Deal. (Biden has refused to state his position on court packing, saying voters will “know my opinion on court packing when the election is over.”) It could be done through congressional legislation, and as an exercise in raw power, it makes sense as a strategy for neutralizing the pro-corporate and socially conservative tilt of the Roberts court. Here, though, experts in democratic government sound a note of caution. Packing the court, they say, risks damaging public faith in the judiciary — by far the most trusted of the three branches of government — by making it appear more politicized. That trust has already been put at risk as less-qualified and politically connected candidates are nominated for the bench, the American Bar Association’s impartial vetting process gets ignored, and Senate votes on Supreme Court and other federal judicial candidates break along party lines.

“Depoliticizing the judiciary and turning the temperature down on the judiciary is essential,” Carnegie’s Kleinfeld says. And there are solutions that may be less contentious than packing the court. One is instituting term limits for Supreme Court judges, so that it doesn’t feel like the democracy itself hangs in the balance with the death of a single justice. Another idea is rotating federal judges onto the Supreme Court for fixed terms, an idea that both liberal and conservative activists support and relieves some of the pressure on the court without inflicting great damage to the public’s trust in it.

Democratic Presidential candidate and former Vice President Joe Biden delivers remarks at a voter mobilization event in Cincinnati, Ohio, on October 12, 2020, where he will speak to the importance of Ohioans making their voices heard this election. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)

Joe Biden delivering remarks at a voter mobilization event in Cincinnati, Ohio, on October 12, 2020. If elected, Biden could have an opportunity to usher in transformative reforms to our democratic system.


The most contentious question hanging over any democratic-renewal agenda is what to do about the past. Should a President Biden prosecute the alleged crimes of his predecessor? Or should he follow in the footsteps of President Obama, who declined to prosecute members of the George W. Bush administration for possible war crimes and whose Justice Department let Wall Street executives off easy after the 2007-2008 financial meltdown?

John Bonifaz, a constitutional law expert and president of the liberal advocacy group Free Speech for People, says Obama’s failure in 2009 to hold his predecessor’s administration and the bankers accountable sent a clear signal that the rule of law only applies to some. Indeed, Bonifaz argues that you can draw a direct line from Obama’s decision to “look forward and not backwards” to Trump’s rise to the presidency. If Biden were to do the same, he adds, the result would be catastrophic. “If we don’t engage in holding this president accountable for the crimes and the impeachable offenses he’s committed,” Bonifaz says, “then we only feed the idea that the rule of law is being destroyed and therefore those who want to can follow in his footsteps and engage in unconstitutional or abusive behavior in violation of the law.”

But what would accountability look like? Bonifaz says he supports additional impeachment proceedings against Trump even if Trump loses the presidency. (Yes, you can technically impeach someone who no longer holds office.) He also backs Sen. Elizabeth Warren’s plan to create a Justice Department task force to investigate possible crimes by Trump and his associates. Other historians and civil-society scholars fear that such a move would trigger a vicious cycle of the party in power criminalizing its rivals. Ian Bassin of Protect Democracy says his group is studying this very question and exploring what form such accountability might take — a special congressional committee, a truth-and-reconciliation commission, criminal prosecution — that doesn’t deepen the bitter tribalism that has divided the country. Biden, for his part, has told NPR he wouldn’t interfere with the Justice Department but added that prosecuting his predecessor would be “a very, very unusual thing and probably not very … good for democracy, to be talking about prosecuting former presidents.”

History shows us that turning a blind eye to corruption and attacks on democracy makes matters worse. Ruth Ben-Ghiat, an expert in authoritarianism and Italian history at New York University, says Italy should serve as a cautionary tale. In 2001, Silvio Berlusconi, a misogynistic media mogul with a fondness for Russian President Vladimir Putin (sound familiar?), took office as Italian prime minister while he faced charges of accounting fraud, bribery, and more in 10 different ongoing trials. Berlusconi “bent the institutions of Italian democracy to his private needs,” passing dozens of ad personam laws to protect himself from prosecution, Ben-Ghiat writes in her new book Strongmen: Mussolini to the Present. A center-left coalition swept Berlusconi out of power in 2006 (though he never conceded the election), but the new government did little to fix the damage Berlusconi had done. Ben-Ghiat says the left’s failure to fix the corruption laid bare by Berlusconi “gave a catalyst and an audience to the people who were saying ‘Screw you’ to the entire system,” paving the way for far-right populists, neo-fascists and even the return of Berlusconi as prime minister in 2008.

Corruption and autocracy, when left unchecked, can normalize and seep into the politics and culture of a country, Ben-Ghiat says, making it that much harder to reverse the backsliding and restore democratic norms and institutions. But it is not too late here in America, she insists. Our centuries-old democracy is not too far gone. As Alexis de Tocqueville, that keen observer of this country’s early years, once wrote, “the greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults.” But as the arc of the moral universe does not bend toward justice on its own, democracy is not a perpetual motion machine. No, it’s a hands-on project that demands its citizens rise to the challenge of improving upon it or else it won’t be around for much longer.

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