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THE FIX

North Carolina tells a story that the Left needs to take seriously. It was supposed to be the future, with progressive forces in ascendance and the imminent collapse of the Far Right. In 2008, Barack Obama defeated John McCain. It was a historic election nationally, but it was particularly so in North Carolina, which seemed to be trending blue after a turbulent, racist past. But the vote was close, and ever since then North Carolina has been a partisan battleground, with Republicans increasingly winning the upper hand. The momentary rise of the Left, buoyed by a charismatic candidate, masked how conservative forces had been plotting to hold power for the long term. In 2010, Republicans recaptured both houses of the state legislature as part of a focused effort led by Karl Rove to flip key statehouses in advance of redistricting. With a 20 percent increase in overall spending on North Carolina races from 2008 to 2010, mostly benefiting Republican campaigns, Rove’s efforts were successful. Much of that additional money came from multimillionaire North Carolinian Art Pope and his family, and groups they controlled.¹ In a profile of Pope, Washington Post reporter Matea Gold observed that “Pope’s family foundation has put more than $55 million into a robust network of conservative think tanks and advocacy groups, building a state version of what his friends Charles and David Koch have helped create on a national level.”² Pope was also one of the largest funders behind the efforts in North Carolina to flip enough seats in the statehouse in 2010 to allow the Republican Party to control the redistricting that would follow the 2010 census.³

In 2012, when Republicans captured the governorship as well, conservatives in North Carolina took full advantage of one-party control of government, going on a drunken bender of right-wing legislating to implement the policy ideas generated by Art Pope’s empire. They went wild on social issues, restricting abortion and attacking gay rights. For their corporate partners, they allowed fracking, curbed lawsuits against hog farms, and—despite their claim to support local control—preempted local jurisdictions’ right to pass ordinances affecting their own residents, from raising the minimum wage to anti-discrimination measures. Pope, whose wealth supported the groups driving the anti-gay and procorporate agenda, was put in charge of the state budget by GOP governor Pat McCrory.

Most significantly, Republicans focused on locking in their power. They started by reversing years of expanding the franchise, rigging election rules in their favor in one piece of legislation, dubbed the “monster law,” that changed the board of elections; redrew district lines to benefit the GOP; and made it harder to vote by limiting early voting, requiring photo IDs, and adding hurdles to the registration process, all with an eye to limiting access to the polls for people of color, who tend to vote Democratic.⁴ The Republicans even altered historically nonpartisan judicial elections to add party affiliation and gerrymandered those districts as well. Other states rig districts, acknowledged House Minority Leader Darren Jackson, a Democrat who saw his party locked out of power. But, he bemoaned, “we remain the top dog in gerrymandering. Nobody does it like North Carolina, we’re No. 1.”⁵

Federal courts have put a stop, for the moment, to North Carolina’s restrictions on the franchise. In her ruling in NAACP v. McCrory, Judge Diana Gribbon Motz of the Fourth Circuit described the disproportionate impact the bill had on minority voters; the provisions, she wrote, seemed to “target African Americans with almost surgical precision.”⁶ Lawsuits also derailed the legislature’s 2011 partisan gerrymander, which was found unconstitutional. A couple of court decisions, however, should not lead us to believe that the Right’s plan has failed. Conservatives have a plan—control the infrastructure of government and control the state for a long, long time. North Carolina is just a snapshot of what has been happening nationwide for decades.

Voter suppression and gerrymandering have given the Right the upper hand across the country. After the 2016 elections, Democrats hit a low in state legislatures they haven’t seen since Warren Harding was president in 1921. Republicans control 56 percent of state legislative seats, having made significant gains during the presidency of Barack Obama. Over the course of Obama’s two terms, the Republicans added almost 1,000 state legislative seats, gaining control of 67 of the 98 partisan legislative chambers. In addition, in 24 states, in 2017 Republicans had the governorship in addition to both legislative chambers, while Democrats held total control in only five states—Hawaii, California, Oregon, Connecticut, and Rhode Island. While the 2017 and 2018 off-year and special elections offered a glimmer of hope that the one-party nation has not yet arrived, a visceral and possibly transient anti–Donald Trump reaction is not going to fix our problems.

The GOP takeover of state governments was no accident. In 2010, Republicans dumped $30 million into state races—triple the amount invested by Democrats—to wrest control of the once-in-a-decade process of congressional redistricting and, with their new statehouse majorities, to draw maps that favored Republicans and pass laws that disenfranchised Democrats and people of color. In 2012, Democrats received 1.4 million more votes nationwide for House races, yet Republicans won control of the House by a 234 to 201 margin. And the GOP’s state successes played a key role in defeating Hillary Clinton in 2016. Those same states that had been transformed from purple to crimson red in 2010 and 2012 adopted voter suppression laws that helped put crucial battleground states on Donald Trump’s tally. This combination of dark money, voter suppression, and gerrymandering makes future gains in either state or federal elections a challenge for progressives and moderates.

But rigging elections was only one part of the plan. Just as it developed strategies to flip statehouses, the Right also had a plan to take over the courts. Dubbed “the least dangerous branch” by Alexander Hamilton because they have neither purse nor sword, the courts are nonetheless key players in policy decisions, and right-leaning oligarchs know that the courts are a necessary piece of the infrastructure to protect and augment their enormous wealth. The Chamber of Commerce, the Judicial Crisis Network, the Republican State Leadership Committee, and others spent millions campaigning against President Obama’s Supreme Court nominee Merrick Garland and for Trump’s right-wing nominees Neil Gorsuch and Brett Kavanaugh, as well as toward electing judges in the states, including, in 2016, a new state chief justice in Arkansas who rules by “prayer, not politics.” The Left invested almost nothing to support Garland and shudders at the impropriety of taking part in judicial elections. The result: far-right dominance of the judiciary with all that entails—rulings against campaign finance reform, voting rights, unions, and transparent government. Anthony Kennedy’s retirement from the Supreme Court gave the Republican Party an even more right-wing five-person majority, with four of those five justices nominated by presidents who lost the popular vote.

With the help of the Chamber of Commerce and right-wing think tanks, conservative judges and legislatures have adopted rules that keep defrauded consumers, victims of sexual harassment, misclassified workers, and children harmed by lead out of the courtroom, while the U.S. Supreme Court has given a broad understanding to arbitration clauses, allowing corporations to move cases from the public and precedent-setting court system to a private, company-funded arbitration system. And corporate interests have worked to control the courts’ secretive rulemaking committees to push further restrictions, including to the discovery process that was designed to help plaintiffs get the necessary documents and other materials to be able to succeed in meritorious lawsuits. Senator Sheldon Whitehouse dubbed this “May it please the corp.”⁷ Dry and boring as it seems, these back rooms are where decisions get made that can thwart enforcement of fundamental rights and progressive policies.

The Right has learned that power precedes policy and not the other way around. Chief Justice John Roberts in his nomination hearing solemnly stated that “judges are like umpires. Umpires don’t make the rules; they apply them.”⁸ He was given great credit for claiming for judges a position of complete neutrality, but in fact—just like in baseball—“calling balls and strikes” depends on where the judge sets the strike zone. Republicans have long understood the fact that when one team helps draft and apply the rules of the game, it is more likely to win. Thus, in elections, rather than just presenting platforms to win votes, they stack the deck by stripping certain voters of access to the ballot box, watering down election laws so they can fill the airwaves with dark-money-funded attack ads, and shaping congressional and state legislative districts to give their party an unfair advantage. They cut down on access to the courts, closing the courthouse doors to deny victims remedies for violations of core rights without having to go to the trouble to repeal statutes. And they go after control of the court system itself by investing huge sums in efforts to promote or oppose judicial nominees at the federal and state levels. Conveniently, the resulting judiciary is much more amenable to pro-corporate and anti–civil rights arguments.

This book does not claim to be a comprehensive overview of each of these topics. There are fine books by experts far better versed in each topic than I—on voting rights, gerrymandering, procedural justice, court packing, constitutional interpretation, and fake news—but I aim to show how these elements fit together as part of a plan for permanent ascendancy by the Right, as a sort of ecosystem where each element reinforces the others, strengthening the grip on power. More importantly, I will address what the Left must do to unrig this system. Scholars Jacob Hacker and Paul Pierson recognize the challenge, saying, “As hard as it may be to direct public attention and enthusiasm toward procedural and institutional reforms, fixing the playing field of American politics remains the essential task.”⁹ Like the Right, we must learn that the process requires two steps: first, we need to capture power, and second, we must craft fair and equitable rules that will endure beyond the next election cycle.

Some key provisions on our unrigging to-do list include fighting for the right to vote for all citizens, fair districts, and limits on money in politics. In the short term, making progress will require a tactical partnership with Democrats by getting them elected and funding their campaigns. But once we have legislatures that are amenable to major reform, we will have to pressure the elected officials to make changes that endure and aren’t subject to easy repeal with a change in party in the statehouse. Dependent on the votes of people of color, Democrats are less likely to engage in voter suppression, but we need rules that enshrine the right to vote for when the GOP comes back into power. And certainly,with respect to partisan gerrymandering, Democrats do not have clean hands and will need to be pushed and prodded to adopt a system they can’t manipulate—if they were strategic, partisans would realize that nonpartisan redistricting actually provides more protections for democrats and Democrats because it is harder for the Right to undo. For that same reason, activists also need to push for clean-money campaigns; progressives want to attack wealth inequality, but we won’t be successful if we have to depend on plutocrats to fund our work. Similarly, progressives need to advance strong anti-corruption laws and a revitalized government ethics system to ensure that lobbyists and wealthy donors aren’t pulling the strings behind our lawmakers. Those who believe that government exists to help people must fight against conservative efforts to drive cynicism and distrust of public sector solutions. And we need to revitalize our First Amendment jurisprudence so it reflects an understanding that the Constitution is meant to support democracy, not inhibit it. Money and votes are not equivalent.

Our courts must be fair and representative, with evenhanded rules. This goal too, though idealistic, supports progressive outcomes—to have judges who are not biased against victims of corporate or government wrongdoing, we need judges who are not picked and coached by conservative interests. While many rightly favor doing away with election of judges, until that happens, we cannot cede the battlefield. So step one is to fight like hell to advance, elect, and support good judges, including by engaging progressive donors to lobby senators (and using pressure tactics if necessary), building a pipeline of talented lawyers for the bench, and providing judges and nominees with well-crafted legal policy to guide them.

To accomplish these goals, the Left needs a strong media hub to generate the content to engage and mobilize the progressive base. The Russians and the Right have outplayed us on Facebook, Twitter, and other social media, not to mention Fox News and Breitbart, affecting votes and mobilizing mobs. We need a response that offers viral content to attack the Right and rebut their charges as well as to goose our base to vote. Unlike the Right, however, the Left should not use lies and distortions; just as we defend government, we need to defend truth and accurate reporting. Our strength is that we have artists and entertainers on our side who can create engaging tools that will empower and unify the diverse progressive constituency. Because the Left benefits more from an independent media and “truthiness,” we also must support good journalism. Ultimately, through technological solutions and education, Americans must be given the tools to identify fake news.

While progressives may not want to sink to the depths of Karl Rove or Steve Bannon (or Ann Coulter or Roger Ailes …) that doesn’t mean we can’t fight fiercely for what matters and understand that the fight for the policies we want has to follow, not precede, the fight to obtain power. To unrig the system, we need power—then we can write our own playbook, with rules that advance and protect a vibrant democracy. This book aims to distill the rigged strategies that have allowed the Right to get a stranglehold on American politics and to offer a progressive playbook for taking power back.

I have been a Capitol Hill staffer, from junior legislative aide to Senate chief of staff, and worked in the White House and as a lobbyist for progressive causes, all of which has allowed me to observe just how much more the Right understands that power’s main use is … to lock in power. Unless the Left grasps that truth, our mantra as Americans will remain “Power to the plutocrats” rather than “Power to the people.”