The false "trap" of bipartisanship
Fix the Electoral Count Act if you can; worry about the rest later
Republican members of Congress seem to be increasingly interested in reaching a deal on reform of the Electoral Count Act.
This is good news on several fronts.
A bill with Republican Party support can pass the United States Senate, whereas a purely partisan bill will die via filibuster. It’s also good news because ECA reform is good on the merits — it won’t fix American political institutions or “save democracy,” but it will reduce the odds of a collapse, and reducing those odds is important. Passing and signing bipartisan bills also tend to be at least a little bit popular and make the president who’s doing it look good.
So these talks should be welcomed. But instead, Marc Elias — a top Democratic election lawyer and go-to source of information related to voting rights and gerrymandering — has been denouncing it as a “trap.” Given the nature of politics, a little bit of criticism from the left is probably good. It preserves the GOP participants’ credibility and means the Democratic participants get credit for moderation. But too much criticism could actually scuttle the talks, which would be bad because a bipartisan deal on ECA would be good.
Elias is also wrong on the merits. There’s no trap here. But his framing tells an interesting story about the evolution of the progressive coalition and some bad bets it has placed. Because fundamentally, it’s Republicans who have gotten smarter and are refusing to fall into the left’s trap.
The Electoral Count Act and the voting rights fight
Virtually everything in Democrats’ voting rights package reflects a fairly longstanding grievance with some Roberts Court decision: in Citizens United, the court took a view of campaign finance law that Democrats disagree with; in Shelby County, it greatly weakened the Voting Rights Act; and in Rucho v. Common Cause, the court declined to strike down partisan gerrymandering as unconstitutional.
The Electoral Count Act isn’t like that. If you go back to 2019, nobody is talking about this.
But that changed on January 6, 2021, when Donald Trump turned Congress’ pro forma certification of the electoral vote into a violent, high-stakes showdown. As a putsch, the attack on the Capitol was a total failure and had few of the hallmarks of a proper plot. But it worked like a charm to help Trump avoid attracting the “fuck this loser, he brought us all down” backlash that would normally accrue to an incumbent president who lost an election.
A cloud has been hanging over American politics ever since. Congressional Republicans are willing to entertain ECA reform not because they’re ready to buck Trump, but precisely because they don’t want to fight with Trump. If they are in the majority in 2024, which is very likely, they don’t want to be in a position where they need to either openly defy Trump or else help him stage a coup. They would like some kind of reform that keeps them out of the process so no more mobs show up at their workplace.
As it happens, I would also prefer that mobs not show up at the Capitol demanding certification hijinks. So you can see why this is a promising area for bipartisan reform. Republicans and Democrats don’t need to have identical ideas or interests for some positive-sum compromises to work out.
There’s no “trap” here
To believe that there’s a trap, you have to believe that Democrats are super close to both scrapping the filibuster and passing this huge voting rights package and that focusing on ECA reform would derail that. But it’s just not true.
ECA reform is not a “trap” because Democrats are drawing dead on their voting rights package.
What’s bizarre about this is that the very people executing the strategy on Capitol Hill do not believe that it will work.
Maybe it seems like congressional Democrats are out there hustling for democracy while haters like me hate from the sidelines. But Democrats on Capitol Hill know the strategy they are pursuing is doomed, and they knew it even before last week’s embarrassing public collapse. I have received conflicting reports as to why Chuck Schumer has been expressing confidence in this strategy for a year, but the strategy has really never made sense.
Joe Manchin and Kyrsten Sinema are wrong on the merits about the filibuster. In particular, I think they are wrong about the impact of the filibuster on themselves. Thus far, my posts have failed to persuade them that moderates would actually benefit from a post-filibuster Senate. If I were Schumer or Joe Biden and had the opportunity to do one-on-one conversations with pivotal senators, I would try to persuade them of this quietly. The pressure tactics actually just send the opposite message — that filibuster reform is part of an endless progressive policy wish list that they mostly oppose.
Because among other things, going on the internet and calling ECA reform a trap doesn’t make Manchin and Sinema un-see the fact that there are Republicans who are interested in a bipartisan ECA reform.
Republicans have evaded progressives’ trap
Here’s the real trap — after eight years of Barack Obama and four years of Donald Trump, lots of Democrats believed the GOP was totally unreasonable and would block anything Joe Biden tried to do.
The belief that bipartisanship was totally futile and that Republicans would never deal in good faith on any subject was a powerful tool for progressives to quiet moderates’ doubts about aggressive action. And I think it was a 100% plausible reading of the relevant precedents.
That said, several Republicans seem to have gotten smart to the fact that obstructionism was backfiring and have sidestepped this trap by behaving much more reasonably in 2021 than the precedent seemed to suggest.
Republicans came to the table with a $600 billion Covid-19 relief proposal that Democrats rejected in favor of the larger American Rescue Plan.
Bipartisan talks generated a major piece of infrastructure legislation.
I did not love the changes that were made to the Endless Frontier Act as it became the U.S. Innovation and Competition Act, but it’s still a good law, and it passed the Senate.
There’s been no government shutdown, and while the debt ceiling provoked a lot of partisan fighting this time around, there was never any real risk of a breach.
During the lame-duck session, we even got a major bipartisan energy bill that, as inadequate as it was, probably constitutes the most important climate policy measure in American history.
And now we have Electoral Count Act reform.
“Republicans will obstruct everything” is a good talking point, but it’s not actually true. And sitting United States senators are aware that it’s not true, so while you can try to trick your audience on Twitter, you can’t actually trick Manchin and Sinema. Not only is ECA reform a live possibility, but I think that if Democrats are willing to admit defeat on their Freedom to Vote package, there might be a long-term path toward bipartisanship on some of that stuff, too.
The perversity of election reform
The key perversity of the voting rights debate is that it’s based on a delusion shared by Democrats and Republicans that making it inconvenient to vote benefits Republicans.
But as Jeff Maurer writes, this does not actually seem to be true:
Studies of voter ID laws used to find small effects: This study that looked at 2012 found that voter ID laws lowered turnout in two states by two percent, and this somewhat-disputed study found a similar-sized effect (but, strangely, the effect was smallest on Black voters, one of the obvious targets of these laws). Some analyses that claimed to find larger effects were later found to be flawed. When German Lopez reviewed the literature on voter ID laws in 2016, he found that the effect was small to non-existent. Voter turnout among all minority groups rose between 2016 and 2020, and also between the 2014 and 2018 midterms. Voter ID laws are still bad, they’re a “solution” in search of a problem, but at this point, they’re basically Luden’s Wild Cherry Cough Drops: If they’re doing anything at all, it ain’t much.
Meanwhile, the foundational assumption of Republican voter suppression tactics is crumbling. It’s long been thought that high turnout helps Democrats; here’s Trump reflecting that belief, and here’s the same thought coming from Bernie Sanders. But it’s starting to look like the conventional wisdom is wrong. Republicans outperformed fundamentals in a high-turnout election in 2020, and did very well in high-turnout elections in 2021. Voters over 30 who turned out in 2020 after skipping 2016 skewed towards Trump by a five point margin relative to their return-voting counterparts. This study — published in Foreign Affairs this month — says: “Put simply, there is no evidence that turnout is correlated with partisan vote choice.”
Kevin Drum recently looked at this from a different angle, taking advantage of the fact that states have been polarizing on ballot access. Democratic-run states have been steadily making it easier to vote while Republican-run states have been steadily making it harder. But turnout is up across the board, with the voting rules changes having no discernible impact.
Does that mean it’s fine to make it harder for people to vote? No, that’s crazy. The government should pass laws that make life easier and more convenient. Republicans are making life harder and less convenient out of a mistaken belief that this gives them a partisan advantage. But when Democrats say that a federal requirement for more early voting is necessary to “save our democracy,” Republicans hear that making it convenient to vote early helps Democrats and dooms Republicans.
The way forward here is to turn the temperature way down and have some people sit in a quiet room with experts and work out a list of things that everyone can agree are pro-convenience and don’t advantage anyone. It really should be doable since there is no clear advantage here.
By contrast, what you really can’t do in a bipartisan way is raise taxes on rich people and spend the money on useful programs. But conveniently, there’s the reconciliation process for Build Back Better. And I sincerely do not understand why the White House and Joe Manchin cannot reach some deal there that involves a sum that is higher than $0 and lower than $1.7 trillion — there are a lot of numbers between $0 and $1.7 trillion! But on “saving democracy,” there really is bipartisan interest in doing something and we should do it. Even though we’re a long way away from a bipartisan path to addressing the rest, rationally there’s no reason there can’t be bipartisan bills there, too. It just would require an approach that’s the opposite of the kind of apocalypticism currently in the atmosphere.