Let’s assume, for a second, that Democrats absolutely crush the Republicans in the 2020 election. President Donald Trump is cast out of office in a wave. Speaker Nancy Pelosi (D-CA) grows her majority in the House, and Democrats even manage to gain control of the Senate. If all of this happens, we have a pretty good idea how Republicans will respond.
We know, for starters, that Senate Republican Leader Mitch McConnell (R-KY) will do everything in his power to sabotage the incoming president. We know this because he’s done it before.
“The single most important thing we want to achieve,” McConnell said in 2010, “is for President Obama to be a one-term president.” Though he failed at this overarching goal, McConnell transformed the filibuster from a rare protest to a routine measure used to thwart anything Obama supported. Then he held a Supreme Court seat open for more than a year — until Trump could fill it.
If a Democrat wins the White House in 2020, Republican state lawmakers will try to prevent a critical mass of that Democrat’s voters from casting a ballot again. We know that because they’ve done so for years.
Texas passed a voter ID law that allowed gun licenses but not student IDs — because Republicans are particularly likely to own guns and Democrats are more likely to be students. Alabama passed a strict voter ID law, then tried to close down DMVs in predominantly black counties (though it eventually backed down due to a federal probe). North Carolina passed an omnibus voter suppression law that, in the words of a federal appeals court, targeted “African Americans with almost surgical precision.” And these are just few examples of Republican voter suppression.
If a Democrat wins in 2020, Republicans on the Supreme Court won’t just invent new doctrines to thwart that Democrat’s policy initiatives, they will work aggressively to make voter suppression easier. We know that because they are already doing it.
Even before Trump judges controlled the balance of power on the Supreme Court, that court struck down much of the Voting Rights Act. It permitted laws that serve no purpose other than to suppress the vote. After Justice Antonin Scalia’s death briefly left an evenly divided court, all four of the court’s Republicans voted to reinstate North Carolina’s racist election law. With two Trump judges now on the Supreme Court, its disdain for voting rights cases is only likely to grow.
And then there’s Trump himself. Trump, who incites violence at his own political rallies. Trump, who lies about “illegal aliens” driving up Democratic vote counts. Trump, who said that a judge of Mexican descent cannot be trusted to remain impartial. Trump, who sets up commissions to justify voter suppression. Trump, who threatened not to accept the results of the 2016 election if he lost. Trump, whose administration is so corrupt it even tries to rig the Census. Trump, who owes his entire presidency to an immoral system that allows the loser of an election to become president.
The Republican Party’s rejection of liberal democracy will not end when Trump leaves office. A recent Gallup poll found that 91% of Republicans approve of Trump’s performance in office. Trump is not an anomaly within the GOP, he is the central figure that defines Republican identity. The Republican Party will not suddenly embrace liberal democracy simply because Donald Trump is no longer in office.
The toughest question facing all Democrats in 2020 isn’t who they nominate to take on Trump. The toughest question is how the eventual nominee will deal with an illiberal opposition party that will certainly control the Supreme Court in 2021, that will most likely control the Senate, that will almost definitely control enough Senate seats to filibuster any legislation under that body’s current rules — and that will use whatever power it has to sabotage Democrats and to sabotage democracy.
There are no obvious answers to this question, but there are two broad frameworks that each candidate can choose from.
The best articulation of one view is Harvard government professors Steven Levitsky and Daniel Ziblatt’s book How Democracies Die, which describes their own research into democratic nations that backslide into something more sinister.
Democracy, they explain, does not simply arise from well-crafted constitutions. They also depend on informal norms. Without such norms, “constitutional checks and balances do not serve as the bulwarks of democracy we imagine them to be.” Rather, “institutions become political weapons, wielded forcefully by those who control them against those who do not.”
Think of the Supreme Court blessing voter suppression laws and tearing down laws intended to protect voting rights. Or of House Republicans forming an entire select committee, ostensibly to investigate the 2012 Benghazi attack, but really to conduct opposition research into Democratic presidential candidate Hillary Clinton. Or of Attorney General William Barr behaving as if he were Trump’s personal lawyer.
Democracy, Levitsky and Ziblatt write, is “a game that we want to keep playing indefinitely.” That is, each party must believe that a loss at the polls will not permanently deny them the ability to lawfully regain power in the future. That’s only possible, however, if each party exercises “forbearance.” The Constitution may permit one party to refuse to confirm any Supreme Court nominee selected by a president of the other party, and it may enable the occupant of that stolen Supreme Court seat to dismantle voting rights that ensure free and fair elections. But if one party deploys such tactics, the other will quickly decide it must respond in kind.
“When parties view one another as moral enemies,” the two political scientists write, “the stakes of political competition heighten dramatically. Losing ceases to be a routine and accepted part of the political process and instead becomes a full-blown catastrophe.” It becomes something that each party must avoid at all costs. The result is a “death spiral,” where one party’s norm breaking inspires retaliation by the other side, which leads to further escalation, until one of the combatants emerges as the authoritarian ruler.
As a descriptive matter, such a death spiral may be inevitable after one of a nation’s major political parties rejects liberal democratic norms. As Ziblatt told the Washington Post’s Matt O’Brien, “no matter how long the other [party] holds out,” that party “will eventually respond tit for tat.” And once that happens, he “can’t think of” any nation that avoided a death spiral.
Nevertheless, their argument does suggest one path that Democrats could take — try to hold out for as long as possible, insist on propping up old norms that the GOP rejects, and hope that someday the Republican Party’s fever breaks. “In our view,” Levitsky and Ziblatt write in their book, “the idea that Democrats should ‘fight like Republicans’ is misguided.”
So that’s one approach. The other is more brazen and it presents far more immediate risk. But it may also be the last best chance to save the United States from single party rule.
In poker, there often comes a point where only two players remain, and one controls significantly more chips than the other. Once this happens, the one player can use their greater wealth to slowly grind down the other by placing bets that cost the richer player very little, but that would force the poorer player to stake a considerable percentage of their remaining fortune.
Often, the only thing the poorer player can do is wait until they draw their first good hand, push all their chips into the center, and pray that the right card comes up for them on the river. It’s a strategy that will wipe them out if they time it wrong, but it’s also their best chance to recover enough chips to stay in the game for the long haul.
Democrats are in the same shoes as the poker player who is down to their last stack of chips.
For one thing, they’ve lost the Supreme Court, which means that a panel of five Republican men now have the power to sabotage any policy initiative supported by Democrats. For another, if current population trends continue, Republicans will soon enjoy a permanent supermajority in the United States Senate.
By 2040, according to a University of Virginia analysis of Census data, half the country will live in just eight states, and nearly 70% will live in only 16 states. Meanwhile, one of the best predictors of whether a particular area will elect Democrats or Republicans is population density. So we are barreling towards a world where the GOP can elect so many senators from depopulated states that it is impossible for Democrats to win a majority.
These two problems, moreover, are mutually reinforcing. If Democrats cannot win the Senate, they cannot confirm a Supreme Court justice in a post-Merrick Garland world. And, while Democrats could conceivably reduce the impact of Senate malapportionment by admitting new states, a GOP monopoly on judicial confirmations means that the courts will only move further and further to the right. That makes it much more likely that a Republican Supreme Court will strike down, probably on spurious grounds, any attempt by Democrats to restore democracy.
Like the poker player holding on to their last stack of chips, Republicans will slowly grind out a victory if Democrats play conservatively. Democrats best chance at survival, should they regain control of the White House and Congress in 2020, is to go all in. Split California into 10 different blue states. Enact sweeping voting rights legislation banning gerrymandering and other common Republican voter suppression tactics. And pack the Supreme Court if its Republican majority shows even the slightest indication that it’s acting to entrench GOP rule.
There is a clear downside to this approach. Republicans will perceive any norm breaking as the very sort of escalation that sets off the death spiral Levitsky and Ziblatt warn about. If Democrats play hardball, and Republicans later gain power, the GOP will retaliate with more court-packing, more Senate packing, and even more aggressive voter suppression laws. And they’ll be able to do so while correctly pointing out that Democrats themselves normalized many of these aggressive tactics.
But what choice do Democrats have? If the alternative is a slow, grinding path to single-party rule, then a death spiral simply gets us to the Bad Place sooner. This handbasket we’re all in has a clear destination. It’s not a solution to slow it down. America needs to reverse course.
And there’s also another reason for Democrats to go all in. It’s hard to bring an adversary to the bargaining table while they are winning, unless your intention is to surrender. But if Democrats can flip the power dynamic — if America’s increasingly diverse center-left majority is able to consistently win elections — then it may be possible to negotiate a peace that preserves American democracy.
The Constitution of the United States is nearly impossible to amend if any meaningful political faction opposes an amendment. But if Republicans were forced to choose between a Supreme Court stacked with Democrats and a constitutional amendment, maybe it would be possible to implement something similar to the Missouri System for selecting judges, which does a far better job of depoliticizing the process than the current method of choosing federal judges.
Similarly, if Republicans were confronted with the absurdity of 10 Californias sending a total of 20 Democratic senators to Congress, maybe they’d realize that the Senate itself — with its rule that each state gets two senators regardless of population — is a vulgarity that should be abolished. (Though it’s worth noting that abolishing the Senate would require two different amendments, since the Constitution currently protects malapportionment.)
The goal should not be permanent one-party Democratic rule. The goal should be a nation where two great parties compete fairly on a playing field that is not slanted to give either one an electoral advantage.
No one should be sanguine about the future. The reality is that, when one of a nation’s two major parties take an illiberal turn, it is very hard to force that party back into the center. The death spiral described in How Democracies Die may be America’s most likely future. Democrats could do everything right — nominate their best candidate, make the right policy decisions, even dominate the 2020 election — and America’s future may still be oligarchical rule by nine Federalist Society justices.
But the fact that there is no certain way to save democracy does not mean that there aren’t some strategies that are more likely to pay off than others. If Democrats truly believe, as former Vice President Joe Biden claimed to believe last Tuesday, that many Republicans will have an “epiphany” once Trump is out of office and abandon anti-democratic tactics that stretch at least as far back as Bush v. Gore, then the right play is to cling to old norms and wait for the fever to break.
But if they believe that Trump is not an anomaly in the same party that gave us Mitch McConnell, then their best play is to go all in.