This ambitious bill should be the first thing Biden does as president

Tim Mullaney
·5 min read
US Democratic presidential nominee Joe Biden (REUTERS)
US Democratic presidential nominee Joe Biden (REUTERS)

The first bill a new president signs sends a message. For Bill Clinton, it was a family leave law George H W Bush had opposed. For Barack Obama, it was the Lilly Ledbetter Fair Pay Act, undoing a Supreme Court decision that imposed artificial time limits on workplace discrimination cases.

For Joe Biden, following, as he is likely to, a president who is a daily threat to democracy itself, it has to be the Democracy Protection Act of 2021.

That bill doesn’t actually exist yet: It would be a wrapper for different ideas Democrats are considering, even if they don’t openly promote them during the campaign. Taken together, they would make government better reflect the increasing hold Democrats have on the support of the population, extend basic liberties of voting and holding representatives accountable, and undo damage the Trump administration and a Supreme Court (and lower courts) packed by Republican abuses and accidents of the electoral college have done.

It can do all of this without amending the Constitution to abolish the electoral college or, as more wild-eyed advocates have demanded, the US Senate. And it can be done in one vote, right at the beginning of the new Congress before a president is even inaugurated.

So, what should be in a Democracy Protection Act?

First, it should protect the vote by rolling back the Supreme Court’s decision in Shelby County v. Holder. That case struck down the Voting Rights Act provision requiring states to get Justice Department clearance before changing voting laws to limit ballot access. In 2019, the House of Representatives passed an election bill as its first order of business. That bill would have eased voter registration, made campaign finance more transparent, limited states’ ability to purge voting rolls and required presidential candidates to disclose their tax returns. Since the right to vote is the right that makes all others viable, it should do this again, with a Democratic Senate and president lined up to support it this time.

Second, the DPA should admit the District of Columbia as the Union’s 51st state — and sponsors should consider Puerto Rico for statehood, too.

Much has been made of how the Constitution, 200-plus years later, accidentally favors a smaller faction that has outsized power specifically in small states. Since the most important Federalist essays go on about the need to control small, fanatical factions, it’s fair to say today’s reality where Montana and the Dakotas rule the Union wasn’t their intent. Wyoming voters get 70 times more influence in the Senate than Californians, and three times more in the electoral college. That’s silly.

Today’s small, fanatical factions are the right wing, whether genuine criminals plotting to kidnap governors or less obviously crazy people who simply are still with Donald Trump, and whose fanaticism in GOP primaries produces dozens of Congress members like Louie Gohmert and Jim Jordan while making more sensible Republicans cater to the so-called base.

The solution, short of constitutional amendments, is to admit more states, including small ones that right now lean Democratic. DC, which has campaigned for statehood for decades, has more residents than Wyoming or Vermont and higher incomes than any state, is the most obvious candidate. Slightly less obvious is Puerto Rico — home to six times more US citizens than Wyoming, but it’s not in the Continental US, its residents don’t currently pay US income taxes and its household incomes are far lower than even Mississippi’s.

Third, it should expand the Supreme Court.

Let’s not be children about this: Republicans have organized for a generation to stack the court, by means legal (recruiting promising lawyers as early as law school) and extralegal (the Senate’s refusal to even vote on Barack Obama’s nomination of Merrick Garland to the Court in 2016). They’ve also tried to pack 11 different state Supreme Courts in recent years, according to a study by a Duke Law School professor, and refused to consider more than 100 of Obama’s lower-court nominations. Republicans come to the protest of abusing Senate process with unclean hands.

And they’ve appointed six justices, assuming the confirmation of Judge Amy Coney Barrett, despite losing the popular vote in seven of the last eight presidential elections (counting Biden), barring an improbable comeback by Trump in the next three weeks. No Republican president has won the popular vote for a first term since 1988. This is a relic of luck — like when Justice Ruth Bader Ginsburg died — but mostly of appointments being made by presidents the people rejected but the electoral college chose.

Next to that, expanding the Supreme Court to 13 is a trifling offense against tradition, and none at all against democracy. The 9th Circuit Court of Appeals has 29 authorized judges.

While we’re at it, amend the law to make the Senate vote on nominations in a reasonable time. Say what you want about the Garland nomination, but it wasn’t democratic.

To do all this, a newly Democratic Senate must do away with the filibuster. As Republicans have said for four years, elections have consequences. Moving to a more majoritarian view of what’s possible under the Constitution will let them be felt.

Democrats shouldn’t fear the next election will resemble 2010’s wipeout, making their aggressiveness short-sighted. The party only has to defend a dozen Senate seats (plus seats in Arizona and Georgia if Democrats win special elections next month), with a half-dozen fat GOP targets highlighted by seats in Pennsylvania and North Carolina where incumbents are retiring. Democrats will defend safe seats in Hawaii, Illinois, California, Maryland and New York.

Win this election, and Democrats will likely have power for six years or more. They should use it without apology.