The Donkey in the Room by Ben Lipson and Max Pushkin

The Donkey in the Room

How the DSCC is undermining the democratic process

by Ben Lipson ’22.5, a Political Science concentrator and Max Pushkin ’22.5, an International and Public Affairs concentrator

illustration by Nadia Kossman-Newcomb ’22

On a cloudy June morning in the state of Kentucky, voters lined up across the state to cast their ballots in the 2020 Democratic Primary. While voters sought to make their voices heard, the outcome of the day’s most important race was already a foregone conclusion. Former Marine fighter pilot Amy McGrath and State Representative Charles Booker were competing to become Kentucky’s Democratic nominee for the United States Senate. Weeks before the election, polling showed momentum favoring Booker. The idea of electing a young progressive speaking out against rampant societal injustices appealed to many, but not to the Democratic Senatorial Campaign Committee (DSCC). In response to Booker’s surge, the DSCC endorsed Amy McGrath and pumped tens of millions of dollars into her campaign, figures that dwarfed Booker’s grassroots fundraising totals. After Booker lost by fewer than three percentage points, progressives decried the DSCC’s actions as an unfair intervention into the race.

The dynamics of Booker’s race were not anomalous. For decades, the DSCC has hijacked primary races to boost their handpicked candidates and used large donations to impede anyone seeking to challenge its stranglehold on the primary process. The DSCC is a comprehensive national political action committee (PAC) run by Senate Democrats with the sole purpose of electing Democrats to the Senate. While this stated mission is a noble goal and a necessary one, the DSCC’s involvement in primaries is undemocratic and eliminates choice for voters by endowing establishment candidates with millions of dollars’ worth of Super PAC campaign contributions.

In the 2020 Senate primaries, the DSCC made 18 endorsements; 17 of these candidates won their primary races. The DSCC wields its power by spending hundreds of millions of dollars in primaries, using its considerable resources to control which candidates voters are exposed to. The DSCC strongly favors moderate, establishment politicians, as evidenced by its centrist leadership: The DSCC is currently chaired by Senator Catherine Cortez Masto of Nevada and has previously been chaired by other establishment Democrats such as Chuck Schumer. Thus, establishment Democrats, rather than the electorate, are allocating millions to determine the Senate’s newest members. In the words of Charles Booker, “The Democratic Party shouldn’t be in the business of interfering in primaries before voters have had a chance to make their voices heard.”

Booker is right. The DSCC’s actions are undemocratic. The DSCC’s complement on the House side, the Democratic Congressional Campaign Committee, does not endorse in open primaries and allows voters to choose who will represent the party before putting money into the race. The DSCC, however, does not grant voters that luxury.

A prime example of the DSCC’s corrosive approach to Democratic politics is the 2020 North Carolina Senate primary. Progressive Erica Smith announced her candidacy for the United States Senate in January 2019, over a year before the primary date. If elected, she would have become the state’s first ever person of color to serve in the Senate. The DSCC, however, had other plans. Smith met with the DSCC in June and again in August, but Democratic party leadership remained noncommittal. Democratic strategists even reportedly attempted to persuade other candidates to enter the race for months. Weeks before Cal Cunningham announced his run for Senate, Smith saw the writing on the wall, saying, “I know the DSCC was

“If political power is supposed to be derived from the people, campaigns need to be centered on local issues and struggles within communities. A top-down approach from the DSCC damages the fabric of our democracy and contorts this mission.”

“Politics functions on the notion that anyone seeking to improve their community can run for public office. This ideal means nothing if the DSCC continues to engage in inherently undemocratic practices that manipulate primary results.”

looking for someone with a bigger name or bigger pockets, and my response is: The DSCC needs to look at someone with a big heart and a big record of service.” Finally, in June 2019, Cunningham announced his run for Senate. Ultimately, like Amy McGrath in Kentucky, Cunningham lost in the general election, conceding the race to incumbent Republican Senator Thom Tillis in November 2020.

While the DSCC waited until October 2019 to endorse Cunningham, the endorsement was all but guaranteed from the start. In July 2019, three months prior to the DSCC endorsement, DSCC Deputy Executive Director Devan Barber was hired to be Cunningham’s campaign manager. In the second quarter of 2019, Chuck Schumer directed over 50 of his donors to max out their donations to Cal Cunningham’s campaign. Due to her statewide grassroots efforts, Erica Smith ended up securing 35 percent of the vote to Cunningham’s 57 percent—a remarkable feat, considering Cunningham’s massive fundraising advantage.

This election cycle, the DSCC has spent over $200 million in Senate races. Another subversion of the democratic process is the fact that most of this money is completely untraceable, due to the DSCC’s status as an independent expenditure committee, or Super PAC. Since the 2010 landmark Supreme Court case Citizens United v. Federal Election Commission (FEC), Super PACs have held a vice-like grip over our political system. On both sides of the aisle, money is everything. Super PACs are antithetical to the concept of free and fair elections. They allow special interest groups, corporations, and parties to spend unlimited funds on elections without requiring reports on individual donors. The only caveat is that the committees must operate “independently” of the campaigns they are supporting, but in our political system, the independence clause means next to nothing. Coordination between Super PACs and campaigns runs rampant, and there is no stopping it. Organizations like the DSCC use loopholes in our campaign finance system to spend millions of dollars in primary races without disclosing any data. As a result, these Super PACs can be funded by large corporations, Wall Street executives, and any other special interest group imaginable without the public knowing anything at all. While the DSCC spends the bulk of their millions on consultants and media companies that inundate Senate races with ads supporting their handpicked primary candidates, candidates that embrace grassroots fundraising do not have the access or funds to do the same.

If political power is supposed to be derived from the people, campaigns need to be centered on local issues and struggles within communities. A top-down approach from the DSCC damages the fabric of our democracy and contorts this mission. Politics functions on the notion that anyone seeking to improve their community can run for public office. This ideal means nothing if the DSCC continues to engage in inherently undemocratic practices that manipulate primary results. For the sake of our democracy, the DSCC must stop endorsing and bankrolling candidates in open primaries, and opt instead to fund candidates only in the general election. Our politicians should stand for their constituents, not for an endorsement from the DSCC.

Max Pushkin ’22.5 and Ben Lipson ’22.5 are two of the co-founders of Make Room, a grassroots political action committee.

“...the DSCC’s involvement in primaries is undemocratic and eliminates choice for voters by endowing establishment candidates with millions of dollars’ worth of Super PAC campaign contributions.”

Edwin Meese III served as the US Attorney General under Ronald Reagan (1985-1988) and is one of the contemporary founders of originalism. In 2019, President Trump awarded Meese the Presidential Medal of Freedom.

by Alex Fasseas ’23 and Ryan Frant ’23 illustration by Nicholas Edwards ’23

Alex Fasseas and Ryan Frant: Is originalism a relatively new theory in Constitutional interpretation?

Edwin Meese: Originalism actually goes all the way back to the time of the Founders. They expected that the language of the Constitution would be interpreted as written and that judges would remain within the Constitution in the decision of cases.

Could you briefly explain your philosophy of “original intent”?

Yes, although it is probably better expressed as original understanding. In other words, the theory interprets the Constitution by asking how the society at the time of ratification reasonably understood what the provision meant. Critics have misinterpreted my theory by claiming that it requires knowledge of the writers’ intentions, but when I use the phrase original intent, I am looking at the actual words in the Constitution— not whatever the Founders had in their minds. Therefore, I encourage judges to interpret the Constitution as they would interpret any other legal document, like a will or a contract. By sticking to the Constitution, the theory prevents judges from having their own personal biases or policy preferences.

Does democracy require an originalist understanding of the Constitution?

Yes, it does. Under our democratic system, the laws have the democratic consent of the people through the legislative process. Thus, the resulting laws—as they are written—are the outcome of the democratic will. Think of the alternative: if judges could go beyond what the text permits, then the third branch, which is not directly responsible to the people, would make new laws that were not approved by the people. Originalism, then, protects democracy by ensuring that the government is held accountable by the public.

In your mind, what is a prominent Supreme Court case that was decided wrongly?

Roe v. Wade. It was wrong on two counts. On one hand, the majority fabricated things that were not in the Constitution; on the other, the Court took a topic—namely matters pertaining to family and marriage—which had never before been within the province of federal law. The issue was already being solved by the different states in their different ways, but the Court gave the federal government this power instead. Opinions Court are separate from politics; hence, their decisions should be nonpolitical. That is why they have lifetime tenure.

If you go back before Bork, most confirmation processes centered around the qualifications of the candidates, and it was, for the most part, a nonpartisan proceeding. In the 1930s, William O. Douglas, who was probably the most liberal judge ever nominated to the Supreme Court at the time, wasn’t even asked to appear before the Senate Judiciary Committee during his confirmation hearing. And actually, in most cases, they didn’t ask questions at all. Even Ronald Reagan’s appointment of Justice Scalia, right before Bork, was approved unanimously.

on local matters, such as family life and reproductive rights, were never meant to be handled by the federal government. Roe v. Wade was a serious violation of this concept.

Given the either-or nature of the abortion debate, should there be a general national consensus or moral agreement on the issue before deciding the legality of abortion?

There are a lot of moral issues that do not have national consensus. For example, some states allow for capital punishment; other states don’t. If you disagree with your state’s laws, you have two remedies at your disposal: You can either move to another state or you can organize with other people who share your views to try to change your state’s law. In contrast, it’s much harder to change laws at a national level, particularly when people from different states have dissimilar views. Thus, a state’s freedom to choose is actually a strength of democracy.

Are there any contemporary issues (e.g., the development of complex artificial intelligence) that the Constitution does not give any guidance for dealing with? What should originalism do when there is no text at hand?

The Constitution is meant to set forth basic principles that are then adapted to specific situations by legislative bodies. When you have developments like artificial intelligence, something unimaginable to the Founders, the Constitution still has principles for the legislative bodies to abide by. The best example of this is wiretapping. Obviously, the telephone was unknown to the Founders, but when the Court had to decide whether wiretapping without a warrant is a legitimate act of law enforcement, the Court applied the Fourth Amendment, which deals with improper searches and seizures. This principle applies to telephone conversations with the same ease that it had applied to more direct individual situations in the 1700s.

Ever since the failed appointment of Judge Robert Bork, the confirmation process has become increasingly partisan. Because this is a lifetime position with immense political consequences, do you think this politicization is justified as a democratic check on the Court?

No, I don’t think it’s justified because the judicial was the one branch of government that was deemed not to be democratic. Justices on the

Was it Judge Bork’s originalist philosophy that made him so controversial, or were there other political factors* at play?

Well it was a combination of factors. The Senate had just changed hands from Republican to Democratic leadership, which created some pretty strong tensions between the two parties. In addition, many left-wing legal groups, like People For the American Way and Alliance For Justice, sought to politicize the appointment process in order to forestall the confirmation of originalist judges. All of these elements converged on Bork’s nomination, leading to his unfortunate rejection.

In recent months the idea of expanding the Court has entered the national spotlight. Indeed, many Americans see the Court as an undemocratic institution in need of reform. What would you say to these Americans?

I would say that the Court is not a democratic institution by the design of the Founders. They wanted a nonpolitical group of people to interpret the Constitution as written and to render a nonpolitical judgment. The Court is not undemocratic but nondemocratic, in other words, nonpartisan. If we decide to change the size of the Court every time a different party gains power it will manipulate the size and composition of the Court to render a political judgment. We would lose a fair and nonpartisan judiciary.

This interview has been edited for length and clarity.

*Political factors widely accepted to have influenced Bork’s confirmation process include Senate Democrats’ efforts to condemn Bork for his personal political views and Bork’s firing of Special Prosecutor Archibald Cox fifteen years prior at the behest of then-President Richard Nixon.

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