In 2021, Democrats need to make good trouble

Like many Americans, my heart sank Friday when I learned of Justice Ruth Bader Ginsburg’s death. I wasn’t surprised that before her body went cold Senate Republicans would move on and press a case to replace her as fast as possible. Both Trump and the Republican Party have every incentive to do so. For Republicans, what’s not to like about a 6-3 conservative majority, particularly since they sense they will lose the Senate in the upcoming election? Also, for them, wielding power means forcing people to do what they want. They lust for overturning the ACA, for a court that makes denying coverage for preexisting conditions illegal, and for overturning Roe v. Wade. For Trump, the impetus to get a replacement on the court before the election is vital to his plans to corrupt the upcoming election.

George W. Bush infamously found a path to 270 through the Supreme Court. It’s now a far more partisan institution, so getting a justice Trump considers a loyalist on the court before November 3 means that when his inevitable court cases challenging results come before the court, he is likelier to prevail. It will be 2000 on steroids. Recently Trump opined that he could issue an executive order not allowing Biden to take office. Trump never asks permission; he just goes for it and sees what happens. It’s not even clear that if the Supreme Court ruled against him that he would follow their ruling. In any event, a 6-3 conservative majority makes it less likely that they would.

The only consistent thing about Republicans in Congress is that if they can take an inch, they will take a mile instead. It’s all about maintaining raw political power. They are heedless to the consequences of doing so. A government controlled by a minority cannot be considered legitimate indefinitely.

Which is why if we get through this election, Biden wins the presidency and Democrats control Congress, it’s time for Democratic retribution. I’m dubious we’ll get it, as Biden promises to listen to both sides and stupidly thinks Republicans can be persuaded. But retribution by the majority is long overdue.

As it turns out, it’s not that hard to put Republicans in their place. Democrats though just have to show some spine. They will also have to clean up the messy mountains of trash left by the latest Republican administration. We need functional government again too.

To start, the Senate filibuster needs to end. It’s largely dead already, so it wouldn’t take much to make it die officially. The filibuster is not in the Constitution. It ends with a simple majority vote, presumably at the start of the new Congress when rules are agreed to through a simple majority.

Second: pack the court. The constitution does not specify nine justices. All it takes is a bill passed by both houses of Congress and signed into law, which will be in Democratic hands. With a 6-3 conservative court we will need at least three more, but let’s make it four for a clear liberal majority. It’s been done many times in the past. Republicans invented all sorts of reasoning for their tactics. So can Democrats. Here’s one: we’re a country of 330 million people now and too much power is in the hands of too few justices. This would more evenly distribute power making it harder for a minority to control a majority.

Third: pass a constitutional amendment that allows the Attorney General to be elected. Trump shows exactly what can go wrong when the Justice Department reports to a lawless president. I propose like the president we elect an attorney general to a 4-year term, every four years. Like the president, there would be a maximum of two terms that could be served by one person. To make it more interesting, run the Attorney General race during non-presidential voting years. It would give us a reason to vote. The amendment should provide that the Attorney General will control the budget of the Justice Department and directly submit appropriations to Congress, outside of the Executive.

Fourth: appoint an independent prosecutor to look into and prosecute potential crimes by Trump and his administration. To avoid the appearance of partisanship, he or she should be a diehard Never Trumper with a proven commitment to impartially upholding the rule of law.

Fifth: keep working with the states to pass the National Popular Vote Interstate Compact. When we have states representing more than 270 electoral votes passing laws agreeing to this compact, the Electoral College is effectively dead, because these states will award their electoral votes by law to the winner of the popular vote for President of the United States. Currently states with 196 electoral votes have passed this legislation, and it’s pending in states representing another 64 electoral votes. If those states passed legislation, we’d be just 11 electoral votes from getting rid of it for good. All it does it increasingly make it likely that our president won’t represent the majority of those who voted for him or her. Biden should make this his cause, and personally coax state legislatures to give it impetus.

Sixth: expand Congress. With Democrats in charge and with no filibuster, there’s no reason not to make the District of Columbia and Puerto Rico states. DC would still have more people in it than Montana, which gets two senators. But let’s also expand the House. With 435 seats, one representative represents more than 700,000 people. That’s too many people. We need a House that changes size based on population. This too can be done with legislation: no constitutional amendment required. The number was last raised in 1929. In the first congress, one representative represented about 30,000 people.

In the words of the late Rep. John Lewis, Congress needs to make good trouble. This is all good trouble. We’ve seen a lot of bad trouble these last few decades. We need a Congress that proportionately represents us, not disproportionately conservative states.