Politicians of both major parties should embrace a lesson briefly limned in a Jan. 18 column by A.B. Stoddard of RealClearPolitics — lawmakers have every incentive to accomplish procedural reforms in a way that “leaves neither party an advantage.”
Stoddard specifically was advocating a rewrite of the Electoral Count Act that governs how presidential electoral votes are certified. Her main arguments on the ECA are right on target, but some insights she offered should be applied to procedural reforms more broadly. From filibuster rules to how judicial nominations are handled, from civil service laws to the Administrative Procedure Act, a host of procedural rules and laws beg for bipartisan reform.
If both parties work together to improve the “rules of the game,” as it were, and if the fixes are slated to take effect only at a specific future date, before which it is not known which party will benefit more, then it is in all parties’ interests to make the rules studiously neutral.
This should be common sense: If nobody knows who will be in a position to exploit loopholes or an unlevel playing field, then everybody should want to ensure a level field with no loopholes. That’s the only way to know that one’s own side won’t be found helpless on the wrong end of tilted political terrain.
On the Electoral Count Act, which both I and the Washington Examiner institutionally have called for reforming, Stoddard makes great points. It was the ECA’s grossly convoluted language that gave rise to the dubious theories about how Republicans could overturn the presidential election results. This led rioters at the U.S. Capitol to try to stop the vote count.
“In unambiguous language,” she writes, “an amended ECA must clarify a process for the appointment of electors and any resolution of disputes in the states and the timelines under which both must conclude.” Democrats should want such reforms so as to avoid a repeat performance of Jan. 6, 2021. Republicans should be equally insistent on reforms because, with Democrats in the Oval Office leading into the next presidential election, the Democrats conceivably could do to Republicans what the Trump team tried to do to the Democrats in 2020-21. Stoddard lists by name numerous Republican and Democratic senators who could spearhead these ECA reforms.
Stoddard doesn’t stop there. Although the two parties aren’t likely to agree on big-picture voting laws across the board, for example, she outlines a series of smaller voting-law reforms that might pass with bipartisan support and thus, at least incrementally, improve public faith in election fairness.
Meanwhile, the past 20 years have seen members of both parties so repeatedly switch positions on the Senate filibuster that observers could get whiplash watching the completely unprincipled jockeying for power. Former President Donald Trump has been both for ending the filibuster, which effectively requires 60 Senate votes out of 100 to pass most legislation, and for keeping it. President Joe Biden has been both for keeping it and ending it.
Earnest reformers, however, note that if both sides think the filibuster is onerous when they are in the majority but use (or abuse) it so readily when in the minority, then maybe it merits a tweak or two. Couldn’t the Senate appoint a bipartisan group to study proposed tweaks to take effect years from now so that both sides will accept the modified filibuster as a reasonable tool, no matter which party happens to enjoy a (temporary) Senate majority when the changes take effect?
Likewise with what almost everybody agrees is the broken process of judicial and executive-branch confirmations. Especially for Supreme Court nominations, the background checks and hearings have become a blood-sport in which nominees are routinely slandered. (No, now-Justice Brett Kavanaugh did not engage in “train rapes” at high school beach parties.) Surely there must be some way both parties can agree to regularize and sanitize the Senate’s role of “advice and consent.”
On a much bigger scale, one that at some point directly affects most U.S. residents in all walks of life, almost every federal bureaucracy has become unwieldy and often abusive for ordinary citizens. What’s needed are complete rewrites of the Administrative Procedures Act of 1946 and of the main civil service acts, some provisions of which date way back to 1883.
Again, as with other reforms of process rather than of policy substance, there’s no reason bipartisan consensus can’t coalesce to make rules simpler and fairer, with all parties wanting to “get it right” in a neutral fashion so their own side can receive fair play in the long run.
And here’s the wonderful irony: The party that takes a public lead in advocating neutral, fair-minded procedural reforms might just be politically rewarded by voters who would like to see their elected officials abjure short-term political advantage in order to do the right thing.
