Institutional Reform That Can Be Done With a Simple Majority in Congress

This article was previously published as part of The Reconstruction Papers. The entire book is available in print and as a PDF.

Democrats have controlled the House, Senate, and White House twice this century, and both times focused on policy. In Obama’s first two years (2009–10), they quickly moved to address the financial crisis, then turned to healthcare. In Biden’s first two years (2021–22), they passed COVID relief, then concentrated on infrastructure and climate. If Democrats manage a trifecta in 2029—a live possibility given Trump’s and the Republicans’ unpopularity—they need to prioritize democracy and power, not policy.

Power makes policy possible, and it is necessary to make policy last. Cynically grabbing power for its own sake or breaking the law to get it is undemocratic, but using the power granted by laws and elections is necessary to make democracy work. The 2010 Affordable Care Act (commonly known as Obamacare) and the 2022 Inflation Reduction Act (which focused on climate and green energy) were impactful, but the second Trump presidency has undermined both, in some cases illegally. Yet Democrats can’t do much about that because they lack institutional control.

Whenever Democrats do gain control of government, ideally in 2029, they should first set policy aside—and the protracted debates that come with it—and instead make a few emergency measures their top concern. In particular, they should pass a new Voting Rights Act, tackle the corruption within the Supreme Court, and prosecute Trump administration lawbreakers.

Everything must be within constitutional bounds and enacted by legal means. A rule-of-law society cannot be (re)built with lawbreaking. As Gandhi argued, the nature of the seed shapes the nature of the tree.

Follow constitutional processes, but don’t get hamstrung by adhering to norms that are already shattered. The priority is liberal democracy, not being “fair” to Republicans, especially not when “fairness” is defined as granting Republicans special advantages.

Use the power the Constitution bestows on the congressional majority. That will likely require reforming the filibuster in the Senate, but this is a perfect example of a shattered norm Democrats shouldn’t feel obligated to honor. It’s not a law; it’s a Senate-invented rule that takes a simple majority to change and only became a de facto sixty-vote threshold in the late 20th century. Even then, the sixty-vote supermajority is only for passing things, and it takes fifty votes to stop things via defunding, so the standard benefits the party that wants to destroy at the expense of the party that wants to build. And Republicans have changed the rule to fifty votes whenever they really want to do something, such as confirm Supreme Court Justices. One Senate-invented rule says you need sixty votes; another Senate-invented rule says a simple majority can get around that. There’s no reason to treat the former as sacrosanct. Prioritizing an outdated proceduralism has undermined efforts to correct democratic backsliding in other countries.¹

This is about the institutions of government and national power, not the “permanent campaign” or “winning the news cycle.” Dismiss complaints from Republicans, who forfeited all benefit of the doubt by facilitating Trump’s lawbreaking. Ignore pearl-clutching by media figures who treat pro-democracy reforms as equivalent to authoritarian attacks. Move quickly and do multiple things at once, getting these reforms in place to leave time in the first two years to enact policy, and to ensure there’s enough time for states to implement them for the next election.

All of the following can be done with control of the presidency and simple majorities in the House and Senate.

DC and Puerto Rico statehood

Washington, DC, has a higher population than Vermont and Wyoming. Puerto Rico has a higher population than eighteen U.S. states. Both are full of American citizens subject to federal taxation but denied representation in Congress. Of the thirty-six U.S. senators from the eighteen states smaller than Puerto Rico, twenty-three are Republicans, giving the party a disproportionate advantage.

The main argument against statehood, especially for DC, is that voters there would likely elect Democrats, which would be unfair to Republicans since there’s no potential state likely to vote GOP. It makes sense why Republicans want to keep these citizens disenfranchised, but why would Democrats go against basic principles of democracy and give Republicans unwarranted power at the same time?

Hold a statehood referendum in Puerto Rico and honor the people’s choice. Change the size of the federal district to encompass the area immediately around the National Mall and make the rest of DC an independent state. That would also give the DC governor, not the president, control of the DC National Guard, insulating it from Trumpist exploitation.

If Democrats had passed DC and Puerto Rico statehood in 2021, America could have had four additional Democratic senators and up to five more Democratic representatives (though it’s always possible Republicans would win some of the four House seats from Puerto Rico). Democrats would control the Senate, and Republicans’ margin in the House would be just two, leading to at least some check on Trump’s second-term abuses.

Voting rights

The U.S. needs a new Voting Rights Act, in part because the Supreme Court gutted the existing one (more on that below). It should honor basic principles of democracy, guaranteeing citizens an inalienable right to vote for their representatives in government with minimal burdens.

Guarantee access

Require all states to allow at least two weeks of early voting, provide mail-in ballots, and use other methods to make voting easily accessible. Ensure a sufficient number of polling locations, based on both population and distance.

Also, require states to begin processing ballots as soon as they receive them, which speeds up reporting. That’s modeled after Florida’s successful reforms following the Bush-Gore problems in 2000. Early processing also counteracts the “red mirage” trick Trump tried to pull in 2020, wherein less densely populated areas reported vote counts first and cities took a while, creating the illusion that the Republican was winning before the Democrat “somehow” came from behind, which Trumpists used to make up false accusations of fraud.

Outlaw gerrymandering

The process of partisan state legislatures redrawing voting districts to give themselves a disproportionate number of seats is corrosive to democracy, and Trump is openly trying to use it to rig the 2026 midterms. Racial gerrymandering is illegal under the Voting Rights Act, but Republicans in Texas and other states have gotten around that by calling their schemes partisan gerrymandering, even though they have an evident racial component. Update the law to outlaw partisan gerrymandering as well. And reinstall preclearance for states with a history of discrimination, which the Supreme Court ended in Shelby County v. Holder (2013). If any state violates the new Voting Rights Act, hand its districting process over to a nonpartisan commission that emphasizes geography rather than expected electoral outcome.

For example, in 2022, Republicans in Tennessee divvied up Nashville—which has a much higher percentage of nonwhite voters and Democrats than rural parts of the state—into parts of other districts with enough Republican-heavy areas to effectively leave hundreds of thousands of Nashville voters without anyone representing their interests in Congress.²

Expand the House of Representatives

The number has been set at 435 for more than a hundred years, though it changed multiple times before then to account for population adjustments. It was 30,000 per representative at the start and is now up to 760,000 each. The House is supposed to be closer to the people. Splitting every current congressional district into multiple parts would make each representative more responsive and would be easier than trying to reverse gerrymandering while keeping the same number.

These Voting Rights reforms may not inherently benefit Democrats—Republicans won the 2024 House popular vote by more than 3.8 million—but they unquestionably benefit democracy and representation. And that undermines the Republican Party’s current effort to lock in authoritarian rule supported by a numerical minority.

Districts drawn to be “safe seats” leave Republicans in blue states and Democrats in red states insufficiently represented, and strengthen the inaccurate impression that various states are uniform. An expanded House will make Congress look more like the mostly purple country it’s supposed to represent. Since each state’s Electoral College votes come from the total House and Senate seats, which gives low-population states disproportionate advantage, expanding the House will make presidential elections more representative too, and better representation will make various types of voters less likely to become disillusioned with democracy.

Judicial reform

None of those reforms are possible with a Supreme Court dominated by hyperpartisan ideologues who put Republican Party power above the plain text of the law.

We need a new Voting Rights Act because the Roberts Court gutted the last one without a constitutional basis. Congress renewed the Voting Rights Act multiple times, including in 2006, but the Supreme Court undid parts of it on the grounds that a majority of Justices thought the provisions against racist restrictions on voting weren’t needed anymore.

That’s the legislature’s job, not the judiciary’s, but the Court made up something with no basis in law called the “major questions doctrine.” Formalized in West Virginia v. EPA (2022), the doctrine says that an issue of “vast economic and political significance” requires more explicit language from Congress and restricts Congress’s ability to delegate power to executive-branch agencies. Except there’s no legal or objective basis to determine “vast economic and political significance”; it’s entirely up to the Justices. The result has been more racist restrictions on voting, but that hasn’t caused the Roberts Court to revisit its stance, presumably because the majority likes racist restrictions on voting that benefit the Republican Party.

In December 2025, the Supreme Court majority relied on the “shadow docket”—through which they issue a ruling pending further litigation—to let Texas use a gerrymandered congressional map that a district court struck down as racially motivated. The unsigned decision said the lower court erred by not assuming Texas enacted this unusual off-year redistricting in good faith, pretending that court’s extensive fact-finding otherwise did not count.

A big reason America needs a new reconstruction is that the Roberts Court changed the Constitution to allow Trump to become president again. The Fourteenth Amendment states that anyone who “engaged in insurrection” is barred from federal office “but Congress may by a vote of two-thirds of each House, remove such disability.” The Supreme Court decided that an insurrectionist can hold office unless Congress directly votes to bar them. It also ruled that a majority of the House impeaching Trump for “incitement to insurrection,” with a fifty-seven-senator majority in agreement, doesn’t count as Congress identifying him as someone who engaged in insurrection. (It takes sixty-seven senators to convict for impeachment, but the Fourteenth Amendment says nothing about impeachment or conviction.)

Then when Trump faced criminal prosecutions for crimes relating to his 2020-21 coup attempt, and for mishandling classified documents afterward, the Supreme Court made up a concept of “official acts” and said the president cannot be prosecuted for them, upending more than 200 years of legal text, precedent, and common sense.

The Roberts Court majority has violated every reasonable legal philosophy, liberal or conservative. The institution must be brought back into the constitutional fold or it will undo pro-democracy reforms, along with any policy the majority personally dislikes.

Congress should expand the court and require Supreme Court Justices to accept a judicial code of ethics. Currently, the standard is that ethics apply only to lower courts, and public evidence³ that Justices accepted expensive gifts⁴ from rich people with business before the Court doesn’t count.⁵ Conflicts of interest should legally require judges to recuse themselves from a given case, and the laws should state that impeachment is called for if they don’t.

To ensure this isn’t blocked by corrupt Justices, expand the Supreme Court from nine seats to thirteen. Thirteen Justices would match the current number of Courts of Appeals, realigning those totals as they were from 1869 to 1911 (when the Supreme Court was first set at nine Justices). Underlining that this is a pro-democracy reform, not a primarily partisan plan, reform could include staggered eighteen-year term limits, so that control of the Court is less a contest of who lives the longest.⁶

Republicans and pearl-clutchers will denounce this as court packing, but that’s another good example of an already shattered norm it would be a mistake to follow. Under the law, the size of the Supreme Court is determined by Congress, and Congress has changed it multiple times in U.S. history. Republicans artificially changed its size to eight seats in 2016 after Antonin Scalia died, with the GOP-controlled Senate refusing to consider any nominee from Democratic president Barack Obama, claiming in bad faith that the Senate doesn’t take up nominations in a presidential-election year. (The Senate unanimously confirmed Anthony Kennedy in 1988, a presidential-election year.) Then in October 2020, much closer to a presidential election, Senate Republicans quickly confirmed Amy Coney Barrett after Ruth Bader Ginsburg died, setting the current 6-3 majority.

Republicans have also executed court-packing schemes in various states,⁷ changing state supreme court sizes in Arizona, Georgia, and, in 2026, Utah.⁸ It is stupidly self-defeating and harmful to the country for Democrats to accept a standard that Republicans can change the size of courts but they cannot, especially when they have a stronger argument to do so based on democratic and rule-of-law principles.

Accountability

Special Counsel Jack Smith was appointed to investigate Trump at the end of 2022, which gave him less than two years to do his job. If Democrats win a trifecta in 2029, they should not wait to seek accountability for what the second Trump administration has done. They should quickly create panels dedicated to these investigations, with the dual mandate of bringing the full truth to light and making referrals to a reformed Department of Justice for criminal prosecution.

They should not even wait until 2029. Any chamber that the Democrats control in 2027 should start building the case against Trump officials, and Trump himself, using the subpoena and investigative powers of Congress.

If Democrats hold the House, they should seek impeachment for both Trump and most of his Cabinet. MAGA loyalists will likely block removal—which takes only thirty-four senators—no matter how egregiously Trump officials violated the Constitution and law, but impeachment is still worth it to facilitate more information gathering and provide a public process for making accusations.

If Democrats hold the Senate, they should set the trial rules as a secret ballot. Though they cannot stop a future Senate majority from publicizing the votes, voting by secret ballot may get some Republicans to act out of patriotism and principle rather than party loyalty.

Perhaps the most legally difficult impediment to accountability is the pardon power, which Trump has demonstrated willingness to use corruptly. And one potential risk to early investigative action by Congress would be telegraphing prosecutorial intent, effectively creating a public list of potential targets for accountability, some of whom Trump may have otherwise overlooked when issuing pardons at the end of this term.

The DOJ should take a narrow interpretation of the presidential pardon power and rely on the reconstituted Court to support this view. At minimum, it should declare that presidents cannot pardon themselves and that perjury in subpoenaed testimony about pardoned crimes is a separate crime not covered by the pardon.

Conclusion

Functioning democratic institutions are necessary for everything else. A corrupt, hyperpartisan Supreme Court can undo any policy achievement. An unrepresentative Congress can defund anything, or enable rather than check an authoritarian executive egregiously breaking the law. An executive branch that can commit crimes with impunity without facing accountability afterward is unlikely to remain lawful for very long.

Do these reforms first, do them fast, in the most straightforward way possible. It’s good for the country, in both the short and longer term. And it’ll be good for the Democratic Party against the Republican Party, yes. But that’s only because Democrats stand for liberal democracy and Republicans currently oppose it.