In Politics, Democrats -- and only Democrats -- ask: What’s the Point of Winning?

by Neil H. Buchanan

We no longer see as much of the "Democrats in disarray" trope in U.S. political discussion, and for good reason.  Paul Krugman goes so far as to assert that Democrats are "a party that is far more comfortable in its own skin than it was a dozen years ago."  One might even describe them as -- what word am I searching for? -- confident.
True, the latest media trope (especially in Washington Post headlines) is "Some Democrats worry that ____," where the blank is variously "... their current popularity might not last," or "... the Republicans' attack lines might stick," or whatever; but that is merely because certain reporters and editors are addicted to painting Democrats as perpetually in a defensive posture.  It is an assumption supported by decades of reality, but it is still dreary and lazy in the current environment.

Not entirely, however.  After all, even though Democrats have been remarkably unified so far in pushing through a center-left agenda, they are still pikers when it comes to high-stakes politics.  And nothing captures this fainthearted default better than the commitment among some Democrats to reinforce the supposed virtues of bipartisanship, which in turn has led to a small number of senators continuing to defend the filibuster.

In this column, I am interested in a sub-category of defenses of bipartisanship and the filibuster, the most plausible version of which is captured by the saying, "What goes around comes around."  That is, the hyper-cautious response among some Democrats to any suggestion of bold change becomes: "But if we do that to them now, what will happen to us later?"  Notably, Republicans seem never to think that way, so they bull straight ahead without concern.  I will return to that issue later in this column.

Even if a person is not sold on bipartisanship, it surely makes sense to mouth the right words in polite company in D.C.  This would explain, for example, an odd claim from Senator Chris Coons (D-DE) on Chris Wallace's Fox News show.
Explaining his trial balloon to split the infrastructure bill into two parts, the second of which would be passed by majority vote (through the so-called reconciliation process) only after passing a first bill with at least 10 Republican votes, Coons said this: "If we come together in a bipartisan way to pass [the first bill], then we show our people that we can solve their problems."

Well, yes, but even if senators do not come together in a bipartisan way, Democrats can still show that they can solve people's problems.  If the assumption is that there are categories of public investment spending that Republicans would not support, but which are popular and good policy, Democrats will be forced to (as Coons's strategy concedes) be partisan.  Why give Republicans the opportunity to claim ownership of some of the other aspects of the plan?

Or, to put it more simply, Democrats could win by winning.  They can (as they did with the COVID relief bill) enact extremely popular legislation, leaving Republicans to change the subject and go back to more culture wars nonsense.  Yet Coons wants to give them a lifeline.

Coons, unlike many of his colleagues, is a sharp guy.  He thus might be doing this simply to force Republicans to reject even his watered-down first partial investment bill.  Or he might be doing it to curry favor with Senator Joe Manchin, the man most responsible for the continued existence of the filibuster -- and thus for the need in most areas of legislating to seek bipartisanship, in an era when Republicans are simply not going to play the bipartisanship game.

Recently, I published two columns here on Dorf on Law critiquing Manchin's astonishingly weak defense of the filibuster.  Liberals' attacks on Manchin are a gift to his reelection campaign, as he portrays himself to his constituents as the not-really-Democratic Democrat.  Given that it is better for Democrats to have even a confused Manchin on their side in the Senate than to have him replaced by a West Virginia Republican, I am fine with the idea that attacking him only makes him happy.

To the extent that we want to discuss substance, however, Manchin is an embarrassment.  In those two columns excoriating his defense of the filibuster, I focused on his unrealistic claims about the political process.  He did, however, also offer a policy-based justification as part of the op-ed in which he declared non-independence from the filibuster: Republicans will just change things back.

Manchin, as I noted in my second column, did not merely argue in favor of the filibuster in its current form.  He actually seemed to argue that the reconciliation process -- the limited situations in which the Senate makes an exception to the filibuster, which itself is an exception to majority rule -- should be abandoned or at least used only rarely.  In his words:
"If the filibuster is eliminated or budget reconciliation becomes the norm, a new and dangerous precedent will be set to pass sweeping, partisan legislation that changes the direction of our nation every time there is a change in political control. The consequences will be profound — our nation may never see stable governing again."
Manchin also said that we need to prevent "drastic swings in federal policymaking."  His argument is that things like tax policy, voting rights, and so on should not be changed for the better, even when they can be, because it is worse to have them then changed for the worse when Republicans take back power.

To be sure, there is a decent argument to worry about stability in some areas of policy, and Manchin points out that implementing new laws takes time.  Certainly, we learned from the 2017 Republicans-only tax bill that it can take years to fill in all the gaps in a hastily drafted giveaway to the wealthy and corporations.  That law is a leading example of what I noted above: Republicans ignore warnings that "what goes around comes around."  They instead channel Janis Joplin: "Get it while you can."

Perhaps the argument is that Democrats should not sink to Republicans' level.  Even if the other side insists an being grabby, Manchin might say, we need to be more thoughtful about what we do.  The fact is, however, that Democrats can do all of that on a partisan basis, too.  If, for example, someone proposes a bill that would take time to implement and would impinge on reasonable reliance interests, they can include transition rules.
If a senator thinks that, on the whole, it is better to privilege policy stability over superior if-we-were-starting-from-scratch alternatives, he can vote no on any particular piece of legislation.  He should also explain why stability is so damned important, each time he does so.

But this, I think, gives the Manchin mindset too much credit.  As a longtime Democratic staffer in the Senate recently wrote:
"One thing unites Democrats of every stripe: fear. When Democrats win, they fear what will happen if they use the power that voters give them. When Democrats lose, they fear they’ll never have the opportunity to wield power again. It’s exhausting, but it’s baked into the DNA of most Democratic elected officials and Democratic-leaning voters."
There is no way to quantify or test this assertion, but it certainly lines up with the last forty years of Democratic politics.  The worry is not that "we might be changing policies back and forth too frequently."  It is the crippling belief that, deep down, voters are eager to vote against Democrats, where any excuse will do.  This has never made sense in a world where Democrats' favored policies are -- across the board -- much more popular than Republicans' policies.  (Indeed, Republicans avoid talking about their policy preferences, even when they have any, because doing so turns off voters.)  Even so, that debilitating fear has always been there for Democrats.

Let us give Manchin his due, however, and ask whether the Democrats' favored agenda items would all be reversed.  That is, let us ask whether, as the title of this column suggests, Democrats should not even bother to do anything, because everything will inevitably be undone.

Republicans always understood that this is not true in important areas, for structural reasons.  Justices and judges can only be removed from office by super-majority votes (and for cause), whereas the votes to confirm can be by simple majorities.  Justices Gorsuch, Kavanaugh, and Coney Barrett are going nowhere, to Republicans' delight.
This is especially important because the only alternative, expanding the Court, actually does open up the tit-for-tat possibility of never-ending court expansion that reasonable people might find troubling.  (I happen to think that adding four seats is a good idea right now, but Democrats are not going to try to do so in any case.)  In any event, Republicans have acted with simple majorities, and Democrats are some combination of unable and unwilling to do anything to reverse the results.

Is that true in any other area?  Making the District of Columbia a state is the obvious example.  Creating a state requires only majority votes in both houses.  Once a state exists, however, the state itself must agree to be merged into any other state.  (The Constitution is actually silent on turning a state into a non-state.)  If Manchin wants to increase the odds that his party stays in the majority, he need not worry that Republicans will immediately reverse D.C. statehood.  They could go nuclear on creating more states, but they could do that anyway.

What about voting rights?  Manchin claims, with jaw-dropping cluelessness, that this is an area of bipartisan agreement:
"There is also bipartisan support for voting reform and many of the initiatives outlined in the For the People Act. Our ultimate goal should be to restore bipartisan faith in our voting process by assuring all Americans that their votes will be counted, secured and protected. Efforts to expand voting hours and access, improve our election security and increase transparency in campaign finance and advertisement rules should and do have broad, bipartisan support and would quickly address the needs facing Americans today. Taking bipartisan action on voting reform would go a long way in restoring the American people’s faith in Congress and our ability to deliver results for them."
On what planet?  Republicans are doing everything possible, in nearly every state, to do exactly the opposite of what Manchin claims is a big cuddly puppy of public agreement on voting rights.  This is especially important because Republicans are trying to make it impossible for Democrats ever to win again.  They lock down state legislatures and the U.S. House through gerrymandering; they further lock down all of those bodies and the U.S. Senate and the presidency with voter suppression; and they are also attempting to guarantee that no Democrat will ever win the presidency again, by giving themselves the power to supersede actual voters when awarding electoral votes.

This is not the situation in which one worries about setting a bad precedent for the time when one inevitably loses power.  "Gee, we could lose the next election; but we'll inevitably be back in power someday, and we don't want them to be mean to us while we’re out of power."  Without the For the People Act and the John Lewis Voting Rights Act, Democrats will lose power with no realistic prospect of ever winning again.  (That is different from the claim in the block quote above, which was that Democrats fear that they might never win again because they enacted their agenda and will thus be sent packing by angry center-right voters.)
The correct response is not necessarily to make it impossible for Republicans to win now, although they do seem to have revealed that they no longer believe in representative democracy and the rule of law.  At the very least, Democrats ought to make sure that, if Republicans ever do return to power and end our republic as we know it, they will at least do so with the support of an actual majority of Americans.  We should never lose our democracy, but if we do lose it, the process should at least be ironic: We should require at minimum that a majority of Americans vote to end majority rule.

Even short of that apocalyptic (but highly likely) scenario, where does this fetishization of policy stability come from?  If Democrats expand access today to health care for more Americans, Republicans might (but might not) take it away later.  Even if they do, however, at least some people will have received health care for a few years that they otherwise would not have received.  If Democrats hire more teachers for public schools and give them better benefits, Republicans might fire them all later.  If Democrats make the air cleaner, the water less toxic, workplaces less dangerous, and consumer products safer, Republicans can nuke it all later.
All possible.  But that is not an argument to do nothing.  What is the response from stability hawks?  "Sorry, we could have made your lives better in many ways, but it all might have been taken away later."  A hundred years from now, everyone will be dead.  Why bother doing anything now, or ever?

The point of winning elections is to deliver for the voters, who will then make it possible to keep winning elections.  Yes, there are some situations in which the side-effects of change are so big that they might argue for caution, but there are certainly plenty of times when positive change is simply positive -- even if it is later taken away.
Republicans understand that elections have consequences.  There are still, however, too many Democrats who fear that doing anything with their power will backfire.  All of which only guarantees that they will definitely lose power, perhaps permanently.