The Messaging Secret Weapon Democrats Aren't Using

Proposing constitutional amendments is the last refuge of the damned. Let's do it anyway.

At 38, I’m just old enough to feel nostalgic for the America of my childhood. I find this distressing, in the way I find gray hairs and not knowing what a “Benson Boone” is distressing. (For those wondering, I googled it, and it’s a Freddie Mercury who’s also David Bowie, only alive and with 8.7 million TikTok followers.)

That said, as romanticized eras go, you could do worse than the 1990s. We’d just won the Cold War, which was nice. Also, the economy was growing for everyone, most Americans agreed we were on the right track, and Friends was on the air.

Which is perhaps why the only change to the Constitution I can recall being suggested during those years was a proposed Amendment to ban flag burning.

I hadn’t done much thinking about politics or government at the time. But I remember that even back then, the whole flag-burning amendment thing felt silly. There’s the free speech part - I wouldn’t personally burn a flag, but I’m happy to live in a country self-assured and principled enough that it’s not a crime. More than that, it seemed so small-bore and desperate, like suggesting an Amendment to prohibit students coming back from study abroad in Spain from pronouncing it “Barthelona.”

Most of all, it was never going to happen. Amending the Constitution is really, really hard, which is why suggesting new amendments is a pointless political stunt.

Or at least, it used to be.

The Party of Lawlessness Vs. The Party of Helplessness

Yesterday, President Trump issued a new batch of 25 pardons and clemency grants. The pardon list was a sampler platter of MAGA criminality: corrupt GOP Congressman; reality-show couple convicted of massive fraud (whose daughter just happened to speak at last year’s Republican convention); former army officer who refused to follow COVID protocols; and so much more.

In case anyone was confused about the president’s intention, Ed Martin, who’s now the main pardon guy at DOJ, posted on Twitter: “No MAGA left behind.”

Handing out pardons to cronies isn’t the only thing Trump is doing to subvert the rule of law. But unlike many other things Trump wants to do (suspending habeas corpus, for example, or shipping American citizens to gulags in El Salvador), he doesn’t need to defy the Courts in order to place his loyalists above federal law. The Constitution explicitly gives him that power.

That seems like a kind of a huge mistake. And people who care about democracy should want to fix it.

The problem is that - because abusing pardons is unquestionably a presidential power - Democrats are yet again reduced to the party of complainers.

The best synopsis of the party’s recent woes comes, I think, from the Canadian comedian Sophie Buddle. I’m not going to describe the analogy she uses - there could be children reading this. Let’s just say that while Democratic Party appeals to her at first, it ultimately leaves her unsatisfied.

It’s easy to see why. After yesterday’s pardon announcement, we saw a replay of a familiar scene.

DEM LEADERS (shouting from rooftops): “Trump’s corruption is destroying the country!”

VOTERS: “That sounds really bad. Are you going to do anything about it?”

DEM LEADERS: "Gee, we sure wish we could.”

On issue after issue - abortion, campaign finance, voting rights, guns - Democrats have become the party of regretfully informing us that their hands are tied. On some of the biggest policy questions, a clear majority of the American people agrees with us. But in the last election, many voters were persuaded to ditch the party that stands limply on the right side of history, and instead choose the one full of maniacs who at least seem likely to get things done.

This isn’t entirely Democrats’ fault. It’s what happens when you get the most politicized, right-wing Supreme Court in a century. Over the last two decades, the Court has taken more and more issues out of the hands of voters and Congress.

The conservative justices have also - coincidentally I’m sure - decided that the Constitution happens to line up with the policy preferences of the Republican Party, regardless of what voters or their representatives would like. Want to ban assault weapons? Want campaign-finance reform? Want to stop partisan gerrymandering? Thanks to the Roberts Court, these are questions beyond We, the People no longer get to decide.

And while we can hope that the Supreme Court stands up to the absolute worst of Trump’s lawlessness, it seems all but certain than they’ll keep rewriting the constitution to make sure that we have a right-wing country, regardless of how people vote.

Not ideal.

Democrats are left with two options. One is to give up on democracy and try to engage in Trump-style lawlessness, only for our side instead of theirs. For obvious reasons, I’m not a fan of that idea.

The second idea is to be honest with voters, and offer a big, bold solution. The Framers expressly entrusted us with the power to change our Constitution when we need to.

Right now, we need to.

“The Anti-Corruption Amendments”

It would be easy to go overboard with proposed amendments. I’d suggest just three:

• Curb the pardon power. I’m sure smart people have spent time thinking about how to do this - but my best guess is that we could give Congress some sort of veto over pardons. (Maybe three-fifths of each House, for example.) We could ban secret or preemptive pardons. We could also say that if you get pardoned for a certain set of crimes related to violence or political corruption, the pardon can’t kick in while the president who issued the pardon remains in office - which would make it harder for presidents to use pardon system to rig elections.

• Get money out of politics. Again, lots people have devoted big portions of their lives to this topic. But at the very least, it seems to me that we could overturn Citizens United by formally make clear that political donations aren’t speech as defined by the First Amendment, and giving Congress the power to regulate campaign finance.

• Term Limits for the Supreme Court. There are some ways to do Supreme Court term limits through legislation. (I’ll spare you the technical details.) But if you want to require judges to retire after an 18-year term, you need an amendment. That’s more important than it used to be. At a time when Supreme Court justices are nominated with the expectation that they’ll only retire when a president of their own party can replace them, without term limits we’ll be stuck with a wildly right-wing court for basically forever.

If you wanted to throw in a bonus amendment, I might guarantee the right to vote for all U.S. Citizens over the age of 18. But the value of the three anti-corruption amendments is that they’re good ideas, they’re popular ideas, and they’re straightforward ideas. They probably won’t pass. But at least Democrats could have something more interesting to say then, “Our hands are tied.”

We’d be fighting for something.

Not only that, we’d be fighting for something big. Right now, Democrats have a messaging problem: voters agree the system isn’t working and want bold ideas. But the boldest ideas you hear from Democrats - like switching to single-payer healthcare or (back in the day) defunding the police - are unpopular, unworkable, or both. So Democrats either have to abandon good governance or become the party of tweaks. As a policy matter, you can achieve a lot by tweaking. But it’s not very inspiring. Rally behind a set of Anti-Corruption Amendments would help voters know what Democrats stand for.

Finally, this is a fight Democrats can win by losing. Right now, voters who don’t pay close attention to our political system - which is most of them - blame Democrats for not producing big, flashy results. Even if the Anti-Corruption Amendments don’t pass, which is the most likely outcome, it will become much more clear who’s truly benefiting from a broken system, and who’s standing in the way of reform.