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GOP's 'Constitutional Hardball' Undermines Democracy

Jonathan Bernstein has a post up at The American Prospect warning of the dangers of the latest Republican ploy to undermine the electoral college by eliminating "winner-take-all" election rules. Bernstein explains how it would work:

The GOP may attempt to rig the Electoral College by changing the electoral vote allocation in GOP-controlled states which voted for Barack Obama. The idea would be to shift from the normal winner-take-all plan to something that would split the votes in those states. Ideally, from the Republican point of view, every Republican state would be winner-take-all while all Democratic states would be split more or less evenly, making it almost impossible for a Democrat to win the White House. All of that, as obviously undemocratic as it is, would be perfectly Constitutional; the Constitution leaves every state in charge of how to choose its electors.

It's a pretty transparent effort to politicize the rules in favor of Republicans. Instead of supporting direct popular election for all states, a genuinely populist reform, it's a sleazy effort to leverage proportional allocation of electoral votes, but only in states where the GOP sees an advantage.

Bernstein cites a litany of GOP schemes to toy with rules, just inside the parameters of the law, including abuse of the filibuster, mid-decade redistricting, the Clinton impeachment, all of which were legal, but violated established "norms" that have helped government function in a bipartisan way for decades. Bernstein continues:

Much of the American political system actually runs on norms, not rules. It may seem strange to people--especially after 20 years of Republican-led Constitutional hardball--but that arrangement actually can work very nicely. Both parties, and beyond them most other politically active citizens, simply work within the de facto rules of the game and work for the best results under those rules.

The problem is that once a party in such a system starts looking for areas to exploit in the gap between written law and the way the law is practiced, they may find all sorts of small, temporary edges. And there's really no particular reason for them to stop once it starts. In each case, the case for moving ahead is the same: why not use the rules to your advantage? For the other party, the incentive to fight fire with fire is overwhelming. Not only is sticking to outdated norms while your opponents don't a sure recipe for losing, but in fact the very norm of following norms rapidly disappears and should be replaced by loophole-exploiting by everyone.

There's a classic collective action problem here: everyone is far better off under a system in which the basic rules of the game are agreed to and respected than under a system in which the rules are constantly altered, but at any particular point in time anyone who figures out a gap to take advantage of can be better off.

Bernstein adds, "...Coalition building and complex bargaining--both of which are absolutely essential for large-policy democracy--only do that work when they are necessary. When the rules are up for grabs, those processes can become unnecessary." He acknowledges that some rules changes are a good idea, when they are measured and fair to both parties. But the latest trend of all-out warfare by finagling the rules is a dangerous way to go.

Bernstein believes that such 'constitutional hardball' invites a new kind of trench warfare, which is counter-productive in terms of serving democracy. Republicans will undoubtedly argue that using the 'nuclear option' to implement the "talking filibuster" is an example of Democratic party abuse of the 'rules,' of course neglecting to mention that their unprecedented abuse of the filibuster makes it one of the few options available to restore balance to the system, given GOP intransigence.

Bernstein concludes that "the best hope is that the present generation of Republicans will maybe be replaced by a group who have a bit more restraint; after all, they do call themselves conservatives. But that's probably just wishful thinking." Bernstein doesn't get into it, but the underlying danger to Democrats is that 'constitutional hardball' will likely end up in the U.S. Supreme Court, which is now dominated by Republican appointees, most of whom have demonstrated their willingness to make highly politicized rulings.