Why Procedure Matters: The Big Issue No Candidate Is Talking About

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This election is all about “the issues.” That’s why we hear so much talk about healthcare and the environment and gun control and how much we need to tax the rich so we can pay for all of this. But, in the lead up to Democratic primary season, the major candidates have paid very little attention to the most important issue of all — democratic proceduralism.

When I say proceduralism, what I mean are the processes and rules in place to enact political change. Requiring 51 Senators to ratify a treaty? That’s a procedural rule. Requiring a candidate to get 270 electoral votes to become President? Another procedural rule. Enacting policies (and restrictions) on when, who, and how citizens can vote? Procedural rules, all of them.

The procedures to carry out political change are different and distinct from the results of political change. Programs like Social Security, the Affordable Care Act, Medicare, and Medicaid represent the latter. They are the substantive policy results that come out of our political processes.

Over the past twelve months, nearly all of our political oxygen has been spent on the substantive visions of the prospective candidates. We’ve heard about Elizabeth’s Warren’s wealth tax, Bernie Sanders’ Medicare for All plan, and Andrew Yang’s Freedom Dividend. But we haven’t heard how these candidates expect to get their ideas passed into law — i.e., how they plan to get something past a divided Congress, executed and implemented at the state and local level, and upheld from legal attack in state and federal courts.

We haven’t, in short, learned what procedural changes or protections these candidates will put forward if and when they are elected. That’s a glaring problem.

It’s also not a new one. The story of the modern Democratic Party is a story of procedural rules handicapping substantive reforms. Over the past two decades, procedural rules have prevented Democrats from assuming office, stopped them from putting in the changes they want when they’re finally there, and stripped their achievements of significant meaning after they’ve left.

The Democratic Party’s Problems with Proceduralism

Consider, first: procedural rules have stopped Democrats from getting into the White House, even when most Americans wanted them there. In four of the past five Presidential elections, the Democratic candidate has received more votes than his or her Republican counterpart. (The only exception was George Bush over John Kerry, in 2004.).

And yet the Democratic candidate was victorious in just two of those five elections — George Bush prevailed against Al Gore in 2000, even though half a million more Americans voted for Gore, and Donald Trump prevailed against Hillary Clinton in 2016, even though three million more Americans voted for Clinton.

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In what democracy can a Party receive the most votes 80% of the time but govern only 40% of the time? How can that result possibly be consistent with the notion of majority rule? These perversions are, of course, a direct result of a procedural rule. That rule states that the President is not to be selected directly by the votes of the American people, but indirectly by the Electoral College.

Moreover, even when Democrats have won office, procedural rules have stopped them from turning their ideas into law. The Senate filibuster is the most notable example of such a roadblock. During the Obama administration, the filibuster significantly weakened a number of financial regulations within the Dodd-Frank Act; prevented passage of the DISCLOSE Act, which would have increased disclosure requirements in elections; and killed the DREAM Act, which would have provided a pathway to citizenship for undocumented immigrants arriving in the United States before 16.

Even President Obama’s signature legislative achievement — the Affordable Care Act — was nearly derailed by the filibuster, and several critical provisions of the Act were saved by a separate procedural rule — reconciliation — which allows the Senate to pass certain legislation with a simple majority vote. Think about how absurd that is. Our government needs to invoke an arcane procedural rule just so a majority of Senators can turn a bill into a law.

Finally, procedural rules have significantly weakened a number of policy initiatives after Democrats have left office. The notable achievements of Obama’s second term, for example, included the Paris Climate Agreement, the Iran Nuclear Deal, and the Deferred Action for Childhood Arrivals (DACA) program. Yet none of these actions became “law” in any formal sense.

A Republican-controlled Senate effectively meant that the Paris Climate Agreement and Iran Nuclear Deal could not become legally binding treaties. And Obama enacted DACA as an executive order only after — as noted above — the DREAM Act fell victim to the filibuster. The Trump administration has since reversed that executive order with the stroke of a pen (the legality of this reversal is now before the Supreme Court).

Many procedural rules are not just bad for Democrats, but bad for our democracy more generally. The entire purpose of the filibuster and the Electoral College, after all, is to prevent majority rule and popular sovereignty — two concepts that are fundamental to any healthy, functioning democracy. These procedures are intentionally counter-majoritarian. They undercut what we as Americans want and what we as Americans voted for.

When Americans today say that our democracy is broken, they aren’t just talking about a government that fails to put forward a sensible climate policy or a set of rigorous financial regulations. They’re also talking about a government that is no longer of the people, by the people, and for the people. When more Americans prefer one Presidential candidate (e.g., Hillary Clinton) to another (e.g., Donald Trump), they don’t expect the less preferred candidate to win — but a procedural rule allowed that to happen. When a majority support a particular policy (e.g., the DREAM Act), they don’t expect a minority of Senators to block that policy from becoming law — but a procedural rule allowed that to happen. When a President spends political capital on foreign affairs, environmental policy, and immigration reform, voters don’t expect those achievements to be undone by the wave of a hand.

A Progressive Approach to Proceduralism

So what is to be done? In my view, a progressive agenda that advances democratic proceduralism must, in the immediate term, encompass at least four planks. These reforms will not put an end to the most glaring procedural rules — some rules, like eliminating the Electoral College or abolishing the Senate, require a change to the Constitution. But these policies can lay the groundwork today for more significant changes tomorrow.

First, the Democratic nominee must promise statehood for Washington, D.C. and Puerto Rico. There is no persuasive reason why Washington, D.C. and Puerto Rico should not be accorded formal statehood — a political measure that residents from both territories support overwhelmingly. American citizens in Puerto Rico and Washington, D.C. are subject to U.S. laws and pay U.S. taxes, but have no say in shaping those laws or how those taxes are spent. That is second-class citizenship, pure and simple. Remedying this wrong would almost certainly provide Democrats with more Senators and Representatives in Congress, and more electoral votes towards any future Presidential election.

Second, the Democratic nominee must end the filibuster. Today, 40 Republican senators, representing one fifth of the U.S. population, can now prevent a bill from becoming a law. That is not a tenable way to govern. No democracy can function if 20% of the people can stop what 80% of the people want.

Third, Democrats should commit to enshrining, protecting, and expanding the right to vote. It is hard to believe that we are, in 2020, still fighting for the right for all American citizens to vote, but here we are. Remarkably, at least twenty states have enacted restrictive voting laws since 2010. The Supreme Court’s decision in Shelby County v. Holder, which effectively gutted Section 5 of the Voting Rights Act, has only paved the way for more states to enact even more restrictive voting measures.

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Any Democrat that seeks the Presidential nomination must, at minimum, restore the protections of the Voting Rights Act. But there is room to do so much more. Democrats should, for instance, push loudly for felon enfranchisement. Preventing an entire class of citizens from participating in the political process — as in places like Iowa and Arizona— robs all of us of a necessary voice on the issues.

Fourth, Democrats must end gerrymandering. The evils of gerrymandering are well known; suffice it to say that no one has anything good to say about gerrymandering. At bottom, it is a cynical tool, wielded every few years like a cudgel by one Party to remind the other that some voters are more valuable than others.

In all likelihood many of the Democratic candidates support some or all of these initiatives. The problem is that none of them have indicated that they would be willing to spend any political capital on these proposals, or even on reforming democratic proceduralism more generally. That is sorely misguided.

In order to build an enduring base to enact substantive change and sustain that change, Democrats must pay close attention to the rules of the game — the processes and procedures in place to wield power in the first instance. Republicans have been paying attention to these rules for years. It should surprise no one that Mitch McConnell has in the past year spoken out loudly against statehood for Puerto Rico and efforts to end the filibuster. Yet, for too long and on far too many occasions, Democrats have chosen to ignore the applicable procedural rules, and have entered a substantive political fight with one hand tied behind their back. Democrats have watched while the other Party, with fewer supporters, accumulates more power.

It does not have to be like this. Giving legislative voice, voting rights, and political power to the previously disenfranchised is an essential strand of our American story. Indeed, it may well be the American story. Think of the Boston Tea Party, the women’s suffrage movement, and the Civil Rights movement. It is time for our generation to carry the torch of these previous movements, and outline a new democratic proceduralism for the years and decades to come.

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