TRUMP IS NOT THE PROBLEM

On January 31, 2020, I published Everything is Working (Im)perfectly.  Nearly four and a half years have passed since I wrote that post, which explored what I think is the principal reason the U.S. is politically dysfunctional and what, if anything, can be done to fix that dysfunction.  

I recently finished reading Tyranny of the Minority, published late last year by Steven Levitsky and Daniel Ziblatt, co-authors of How Democracies Die.  It gives me no joy to say that their book confirms my amateur’s analysis and conclusions.   I am indebted to them for their description of the historical context within which the Constitution was written, and that context enabled me to put some historical flesh onto the analytical bones of my prior post and update my thinking.

Although there are multiple reasons for America’s political dysfunction, my analysis of the “why” focused on the inherently anti-majoritarian structure of the American foundational document, the U.S. Constitution.  As Levitsky and Ziblatt point out, the document the Founding Fathers wrote was the product of compromise and improvisation designed to address two issues threatening to prevent  consensus:  the issue of slavery and the role of small states vs large ones.  The compromises achieved were blatantly anti-majoritarian.

The first critical compromise, without which the Constitution would not have been agreed, was the “three-fifths clause,” found in Article I, Section 2.  The Framers' foundational concept for determining the number of congressional districts to which a state would be entitled in the House of Representatives, as well as the allocation of its tax burden, was that only free persons would be counted.  This idea of counting only free persons, however, created a difficult problem of arithmetic.  

The five southern slave states had about the same population as the eight northern free states, but since almost 40% of those living in the South were enslaved, the Founders from those states feared they would always be outvoted in the House, especially on the divisive issue of slavery.  The Founders solved the problem with the three-fifths clause, whereby each slave was counted as three-fifths of a free person.  The southern states liked the arithmetic because it increased their weight in the House, and the northern states liked it because it increased the southern states' tax obligation. 

To achieve something close to equality in representation for the South and fairness in taxation for the North, Section 2 of Article I provided (emphasis added in bold):

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. … The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative;…

If the real numbers of free persons weren't there, the Founders would agree to make them up, simply to get the deal done.  Unfortunately, this magic math resulted in an anti-majoritarian House.

The three-fifths clause, in green in the above text was implicitly revoked by the Emancipation Proclamation and explicitly modified by Section 2 of the 14th Amendment.  So, is the anti-majoritarian character of the House moot?  I would argue no.  The House has maintained its historical anti-majoritarian structure through the modern practice of partisan gerrymandering by state legislatures, which have the ability to construct congressional districts that dilute the votes of the minority party in that state's legislature.  So, while the absolute number of congressional districts and therefore the number of Representatives in the House is determined by a state's population and is not affected by gerrymandering, the party dominance of those Representatives is directly affected, yielding an anti-majoritarian result.  

An egregious example of this is found in the State of North Carolina, which has a Democratic governor, although the state leans slightly Republican, and yet--as a result of gerrymandering--has a Republican super-majority in its legislature.  That legislature gerrymandered its congressional map in 2023 to give ten of the state's 14 congressional districts to Republicans, three to Democrats, and create one that is competitive.  Reminiscent of what happened at the drafting of the Constitution, North Carolina Republicans simply didn't have the numbers, so they made them up.  Gerrymandering, unfortunately, is not limited to the Republican Party and is always anti-majoritarian.   

The second critical compromise, without which the Constitution would not have been agreed, limited to two the number of Senators from each state, regardless of its population, and is found in Section 3 of Article I.  As Levitsky and Ziblatt explain, this clause was demanded by small states like Delaware, which feared that their interests would always be outvoted in the Senate by larger states, were representation proportional.  To mollify these states with small populations and get them to sign onto the Constitution, statehood, rather than population, became the basis for representation in the Senate.  This feature is clearly anti-majoritarian:  today, states with large populations such as California and Texas have no greater voice in the Senate than states with small populations such as New Hampshire and Wyoming.

Majoritarianism, however, can be perverted.  The Senate’s rule requiring a super-majority of 60 votes to bring debate on legislation to a close and force a floor vote is a prime example.  Known as cloture, this rule has been hijacked by Senate minorities to prevent legislation from even being debated.   Senate.gov explains how this works:

The Senate tradition of unlimited debate has allowed for the use of the filibuster, a loosely defined term for action designed to prolong debate and delay or prevent a vote on a bill, resolution, amendment, or other debatable question. Prior to 1917 the Senate rules did not provide for a way to end debate and force a vote on a measure. That year, the Senate adopted a rule to allow a two-thirds majority to end a filibuster, a procedure known as "cloture." In 1975 the Senate reduced the number of votes required for cloture from two-thirds of senators voting to three-fifths of all senators duly chosen and sworn, or 60 of the 100-member Senate.

So, if the Senate Majority Leader knows he has 41 Senators, a minority, who will not vote for cloture to end debate, the Leader will not even bother to bring the legislation to the floor for discussion.  There is no point:  59 Senators cannot end a filibuster and force a vote, so the bill never sees the light of day.  Note that this super-majority rule functions in an anti-majoritarian way.  Note, too, that it can be used by Senators to avoid discussing issues their constituencies might support but their donors do not. 

The privilege given to southern and small states when the Constitution was inked was tattooed onto the Electoral College, where the number of electoral votes for each state is equal to the number of its Senators plus the number of votes equal to the number of its congressional districts.  Because the number of Senators is fixed at two and not proportional to population, the number of Electoral College votes is as a result anti-majoritarian.  In addition, and making democratic matters worse, the “winner take all” rules of the Electoral College can and have resulted in the election of Presidents who have not received a majority of the votes cast. 

The anti-majoritarian structure of the Electoral College and the Senate in turn colors the Supreme Court, whose Justices are nominated by a potentially minority-vote President and confirmed by a non-proportional Senate.  This structure seats Supreme Court Justices whose tenure may not reflect the will of a majority of voters at the time of their confirmation—much less over the course of their lifetimes.  In actuality, and against the wishes of a majority of American voters, it has sanctioned partisan gerrymandering, vote suppression, and dark money in electoral campaigns, while refusing to allow sensible firearms regulations and retracting a federal right to abortion. 

Another example of majoritarianism being perverted is the Senate rule that requires only a simple majority to confirm Supreme Court Justices.  Called the nuclear option, Wikipedia discusses how it has been used:

In the United States Senate, the nuclear option is a parliamentary procedure that allows the Senate to override a standing rule by a simple majority, avoiding the two-thirds supermajority normally required to invoke cloture on a measure amending the Standing Rules.

The nuclear option was notably invoked on November 21, 2013, when a Democratic majority led by Harry Reid used the procedure to reduce the cloture threshold for nominations, other than nominations to the Supreme Court, to a simple majority. On April 6, 2017, the nuclear option was used again, this time by a Republican majority led by Mitch McConnell, to extend that precedent to Supreme Court nominations, in order to enable cloture to be invoked on the nomination of Neil Gorsuch by a simple majority.

Because the Senate is disproportional, a majority of voters can be (and in recent Senate elections have been) represented by a minority of Senators, and a minority of voters can be represented by a majority of Senators.  Thus, with the nuclear option, 51 Senators representing less than a majority of voters can confirm Supreme Court nominees.  Given the importance of the Court and the lifetime terms of its Justices, this is a case where a super-majority of 60 Senators would be more likely to reflect the will of a majority of voters. 

So much for the "why."  My analysis of the “fix” for the political dysfunction created by America’s most important foundational document, was that structural problems require structural solutions.  That is, only amendments to the Constitution can establish a proportional rather than fixed number of Senators for each state, abolish the Electoral College, and re-balance the Supreme Court.  That analysis led me to conclude four and a half years ago that, in the then-current political environment, such amendments had little or no chance of being passed, much less ratified, given that Article V of the Constitution requires that amendments be approved by a super-majority of 2/3 of each House of Congress and a super-duper majority of 3/4 of state legislatures.  Nothing in the last four and a half years has occurred that would change my mind.  The approval hurdles are just too high, and the morass of legislative stasis in Congress has become just too deep.  Sadly, Levitsky and Ziblatt agree.  

The term “democracy” derives from the Greek dēmokratia, from dēmos (“people”) and kratos (“rule”).  While who the “people” are is nowhere defined in the Constitution, over the years its meaning has evolved to include the extension of voting rights to the formerly enslaved, as witnessed by Section 1 of the 15^th Amendment, which states:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

and to women, as witnessed by the 19^th  Amendment, which states:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

But as integral to the definition of democracy as who the people are is, so is the mechanism of who rules.   Whether a direct democracy like ancient Greece or a representative democracy like the United States, it has always been the voting majority who rule in a democracy.   The right to vote is eviscerated, if not pointless, unless an electoral majority becomes a governing majority.   Put another way, the majority of votes cast must be outcome-determinative.  A democracy that does not produce a governing majority is not a real democracy.  It is a tyranny.

In their book, Tyranny of the Minority, Levitsky and Ziblatt maintain that it is the weaknesses in America’s institutions that yield an electoral majority that at times cannot govern.  They contend these weaknesses have been exploited to the extent that the majority often no longer rules and Americans risk a tyranny of the minority.  Does that mean that American democracy is dead?  I’d say it’s on life support and I think the authors would agree. 

Consider this from Levitsky and Ziblatt:

Freedom House’s Global Freedom Index gives countries a score between 0 and 100 each year, with 100 being the most democratic.  In 2015, the United States received a score of 90, which was roughly in line with countries like Canada, Italy, France, Germany, Spain, and the U.K.  But after that, America’s score declined steadily, reaching 83 in 2021.  Not only was that score lower than every established democracy in western Europe, but it was lower than new or historically troubled democracies like Argentina, the Czech Republic, Lithuania, and Taiwan.

Levitsky and Ziblatt explore many possible reasons for this backsliding, including Donald Trump.  They conclude, as I do, that Trump is not the problem (although they and I agree he is a problem):

The threat facing American democracy was never simply a strongman with a cultlike following.

Nor do they attribute America’s democratic slide to reactionary voters, noting that:

Reactionary voters are a minority in the United States, just as they are in Europe.  This is an important—and often neglected—point.  

Which point brings them to attribute America’s anti-democratic slide squarely to “flaws in our Constitution [that] imperil our democracy,” contending that “the U.S. Constitution allows partisan minorities to routinely thwart majorities, and sometimes even govern them.”  The authors conclude that:

we must confront an uncomfortable fact:  Societal diversity, cultural backlash, and extreme right parties are ubiquitous across established Western democracies.  But only in America did such extremists actually win control of the national government and assault democratic institutions.

(I infer from Hungary's omission that Levitsky and Ziblatt  no longer consider it a Western democracy.  Who's next?)

A principal task of their book is to understand how America got to this point, and Levitsky and Ziblatt present a fascinating history of the origins of the Constitution and how immigration, Christian Evangelicalism, the rise of political parties (not envisioned by the Founders), and election strategies have shaped American politics.  But they agree, as do I:

The more urgent question, however, is how to get out.  One thing is clear:  Our institutions will not save our democracy.  We will have to save it ourselves.

To save democracy-- or what I think is better and more accurately termed governing majority rule with constitutional protections of the minority, the authors argue:

we must democratize our democracy, undertaking long overdue constitutional and electoral reforms that would, at a minimum, bring America in line with other established democracies.

Those reforms require three big fixes:  (1) upholding the right to vote, (2) making sure elections reflect majority will, and (3) making sure majorities actually govern.  Within these big fixes are smaller fixes that seem to me to be at least theoretically achievable through federal or state legislative or rule changes, such as:

·       automatic voter registration,

·       making Election Day a Sunday or a national holiday,

·       putting electoral administration in the hands of nonpartisan professionals,

·       replacing “winner take all” electoral rules,

·       increasing the number of Congressional Representatives to reflect population increases, and

·       abolishing the Senate filibuster.

But these small fixes that tinker around the edges won’t resolve the anti-majoritarian problem, which Levitsky and Ziblatt argue exists at the constitutional level.  To achieve governing majority rule with constitutional protections of the minority one must go to the heart of the anti-democratic nature of the Constitution itself.   

These are the big fixes that Levitsky and Ziblatt say are needed, all of which they admit would face “the unparalleled difficulty of amending the Constitution”:

·       Pass a constitutional amendment establishing a right to vote for all citizens, which would provide a solid basis to litigate voting restrictions.

·       Abolish the Electoral College and replace it with a national popular vote. 

·       Reform the Senate so that the number of senators elected per state is more proportional to the population of each state (as in Germany).

·       Establish term limits (perhaps twelve or eighteen years) for Supreme Court justices to regularize the Supreme Court appointment process so that every president has the same number of appointments per term.

·       Make it easier to amend the Constitution by eliminating the requirement that three-quarters of state legislatures ratify any proposed amendment.

Levitsky and Ziblatt fear these big fixes may seem so “pie in the sky” that there will be a strong temptation to set them aside “in pursuit of more immediate goals, like winning the next election or crafting achievable legislation.”  They warn, however, that the small fixes are not enough.  They urge:

Even if many of our proposals are unlikely to be adopted in the near term, it is essential that ideas for constitutional reform become part of a larger national political debate.

Democratic reform will remain impossible …unless we rethink our attitude toward constitutional change….There is nothing sacred about these institutions.  And even the best-designed constitutions require occasional revision because the world in which they operate changes—often dramatically.

To which I would answer, “Tell that to the originalists on the Supreme Court,” some of whom will sit in judgment on any such attempted legislative or constitutional reforms for another 20 to 40 years.

Still, amending the Constitution is not impossible.  As part of their historical survey of how America got where it is and how it can find its way out, Levitsky and Ziblatt discuss “rare but meaningful moments of democratic progress” when the Constitution was amended.  Indeed, the Constitution has been amended 27 times.  Interestingly, if one looks at the "rare but meaningful moments" when amendments that pushed democracy forward were ratified, those moments were preceded by intense conflict or crisis.   

The 13^th through 15th Amendments, which abolished slavery, established equal protection of the law, and prohibited the denial of voting rights to those formerly enslaved, respectively, were passed during Reconstruction following the Civil War. 

The 17^th and 19th Amendments, which established the direct election of Senators and prohibited the denial of the right to vote on the basis of sex, respectively, were passed shortly after World War I.  

The 24th Amendment, which eliminated the poll tax, was passed during the Civil Rights Era.  The 25^th Amendment, which provided for the succession of the Vice President in the event of the President’s death or incapacity, was passed after the assassination of President John F. Kennedy.  And the 26^th Amendment, which reduced the voting age to 18, not coincidentally the draft age, was passed during the Vietnam War.

If history is any guide then, it may take intense conflict or a crisis to bring about amendments to the Constitution that push democracy forward by reforming our core institutions:  the House, the Senate, the Electoral College, and the Supreme Court.  Yet if Americans don’t do the hard work of reforming the anti-majoritarian structure of the Constitution, then the rights which are supported by and dependent upon this structure--freedom of religion, speech, assembly and association; freedom from unreasonable searches and seizures, and the right to have one's life, liberty, and property taken only through due process ---will collapse.  Without a strong democracy based on governing majority rule with constitutional protections for the minority, it won't really matter who is elected President in 2024 or thereafter.  Because Trump is not the problem.  The Constitution is.

Keep it real!

Marilyn