On our own failed democratic state (and what’s at stake on January 17)
This is a slightly extended version of an essay first published in the New York Review of Books during the State Department’s “Democracy Summit” last month. I am republishing this version of it here (along with a podcast about it) one week before the Senate takes up changes to its rule to allow the Freedom to Vote Act to pass.
There’s been a predictable spate of attention to diversions from passing this bill. Yes, the Electoral Count Act must be amended — but there’s no urgency to do that now. Maybe gerrymandering won’t be as bad as some have predicted—“don’t worry, we’ll cheat only a little.” Efforts to suppress the vote don’t, on average, in the aggregate, work—says the academics, not the people spending real political capital to make them happen. Partisan reform undermines public trust—did anyone bother to tell the partisans in the states that?
But the bit that is most frustrating to me is how the money-in-politics part of the bill has become completely invisible. David Brooks spends 900 words poo-pooing the bill, without even mentioning its inclusion of public funding for congressional elections for the first time in history, or the hugely significant transparency changes that the bill would effect.
Everything now turns on Senators Manchin and Sinema — which means everything now turns on President Biden’s ability to rally them.
This is Joe Biden’s LBJ moment. Like Johnson, Biden knows the Senate. Like Johnson, Biden has defended what now blocks reform. And so like Johnson, President Biden needs to use his influence to get these Senators to do the right thing.
Remember: When Johnson was advised not to take up civil rights upon assuming the presidency — because he was certain to lose, and such a loss would guarantee defeat in the 1964 election—he famously replied, “What the Hell is the Presidency for?”
Exactly.
10 December 2021
The State Department is hosting a democracy summit this week. Representatives from around the world will assemble (virtually) “to set forth an affirmative agenda for democratic renewal.” For the United States, the webpage declares, “the summit will offer an opportunity to listen, learn, and engage with a diverse range of” democratic actors. America “will also,” the page continues, in what is certainly the money quote of the whole conference, “showcase one of democracy’s unique strengths: the ability to acknowledge its imperfections and confront them openly and transparently, so that we may, as the United States Constitution puts it, ‘form a more perfect union.’”
I’m not certain who precisely is going to be “showcas[ing]” our own “imperfections.” The agenda online is incomplete. But it is right that we “confront” these “imperfections” “openly and transparently.” Because what’s most striking about America’s understanding of our own democracy is our ability to see what’s just not there. We are not a model for the world to copy. The United States is instead a failed democratic state. At every level, the institutions that we have evolved for implementing our democracy betray the basic commitment of a representative democracy: that it be, at its core, fair and majoritarian. Instead, that commitment is now corrupted in America. And every aspiring democracy around the world should understand the specifics of that corruption — if only to avoid the same in its own land.
The corruption of our majoritarian representative democracy begins at the state legislatures. Because the Supreme Court has declared that partisan gerrymandering is beyond the ken of our Constitution, states have radically gerrymandered legislative districts. As Miriam Seifter summarized the data in a recent article for the Columbia Law Review, “[a]cross the nation, the vast majority of states in recent memory have had legislatures controlled by either a clear or probable minority party.” Her work was based in part upon an extraordinary analysis published by the USC Schwarzenegger Institute, which found that after the 2018 election, close to 60 million Americans “live under minority rule in their U.S. state legislatures.” The most egregious states in this mix are also among the most important in presidential elections. In Wisconsin, for example, the popular vote for Republicans in 2018 was 44.7%; but Republicans controlled 64.6% of the seats in the statehouse. Likewise, Republicans in Virginia won just 44.5% of the vote but received 51% of House seats. State legislatures, as Seifter characterizes them, are “the least majoritarian branch” of our representative democracy. Yet this fact is all but invisible to most Americans — including, as she evinces, Justices on the Supreme Court. We are all outraged when the Electoral College selects a president who hasn’t won even a plurality of the votes — which it has 5 times in its history. Why are we so sanguine about legislatures that are regularly controlled by the party that won fewer votes across the state?
These gerrymandered states then spread their minoritarian poison in two distinctive ways. First, they have taken up the most ambitious program of vote suppression since Jim Crow. Through a wide range of techniques, Republican state legislatures are making it selectively more difficult for presumptively Democratic voters to vote, by reducing the number of polling places in Democratic districts, by ending early voting or voting outside of ordinary working hours, by deploying biased ID requirements that selectively enable IDs likely held by Republicans (gun club registration cards) while disabling IDs held by likely Democrats (student IDs), by understaffing polling places so voters must queue for hours to vote, and by many other creative techniques as well. In Georgia, the legislature has even made it a crime to give water to people waiting in line to vote. What possible legitimate state interest could that law serve?
Such acts are often framed by their opponents in racial terms. That framing is a strategic mistake. I’m happy to stipulate that many who push these techniques of suppression are motivated by race. But every single person pushing these techniques of suppression is certainly motivated by politics. It is raw partisan power, driven to destroy the party not in power, that explains what is happening here. And rather than forcing that corruption into the box of racism, we should be asking a more fundamental question: Why is it permitted for the party in power to rig the system against their opponents? No doubt, racism is America’s original sin. But we should see this as a sin too. And unlike racism, this sin is now openly and self-consciously embraced by those who would destroy the ideal of representative democracy. Before the United States Supreme Court, Justice Amy Coney Barrett asked lawyers from the Republican National Committee why they were opposing provisions enabling more to vote. Because it “puts us at a competitive disadvantage,” the lawyer was untroubled to reply.
The second way that minoritarian state legislatures spread their poison is by gerrymandering the United States House of Representatives as well. First perfected in its modern, “big data” form by Republicans in 2010 — see Dave Daley’s magnificent book, Ratf**ked—the Democrats then spent the decade trying to get the Supreme Court to stop partisan gerrymandering completely. When the Court announced it would not, there was little left for the Democrats except good government initiatives, aiming at moving the redistricting process away from the most egregiously partisan influences. That did some good until 2020 signaled to Republicans that their party faces virtual annihilation if the majority gets its say. The efforts to gerrymander in 2022 and 2024 are therefore more sophisticated than any, ever. Barring a legislative miracle, Republicans will have secured through gerrymandering the control of the House of Representatives, whether or not they succeed in winning more votes than Democrats. And if the plans of some extremists come to fruition, then key state legislatures will also have passed laws that give the legislatures the power to overturn the results of a popular presidential election in their state.
These two techniques of minoritarian rule (gerrymandering and partisan vote suppression) could have been resisted by the courts. Yet what’s striking about the United States Supreme Court is not only that it has done nothing to resist minoritarianism, but that its most significant recent interventions have only ratified perhaps the most egregious aspects of our minoritarian democracy — the role of money in politics. While most mature democracies have various techniques for minimizing the corrupting role of money in politics, the United States Supreme Court has embraced the most radical conception of campaign money free speech of any comparable democracy anywhere. While the court has upheld limitations on direct contributions to political campaigns, it has simultaneously held, in its infamous Citizens United v. FEC (2010), that any limitation on independent spending violates the First Amendment. Lower courts have then read Citizens United to mean that any limitations on contributions would violate the First Amendment as well. These rulings together gave rise to “SuperPACs,” which now dominate political spending in America. In 2020, for example, the 10 top SuperPACs accounted for 54% of outside spending.
What’s critical to recognize is that the real power of this money comes not from its effect in persuading voters. Its power comes instead from the dependence it creates within our political system. Candidates know they need the support of SuperPACs, either to make the case for them or to defend them from others who would attack. That dependence produces enormous power in the SuperPACs. That power is thus concentrated in the hands of a tiny number of (presumptively but not necessarily) Americans. In a nation of hundreds of millions, a few hundred families now dominate political spending.
Here again, there is no shame. In June 2021, the political action committee No Labels had a call with Senator Joe Manchin (D-WV) about legislative priorities in the balance of the year. On the call, the founders of No Labels emphasized the power their group had in Washington — not because of their ideas, but because of their money. The ultra-wealthy donors supporting the No Labels PAC were able to “hand out $50,000 checks,” its co-founder, Andrew Burskey, bragged. And those checks, he explained, represented the most valuable money in any political campaign. This was “hard” money, money that FEC rules allow the candidates to spend themselves. And then to prove just why that money was so valuable, Burskey offered the incredibly revealing picture of just why the economy of influence in Washington gave the ultra-wealthy so much power in Congress. As he explained,
[Most House members] are spending four hours on the telephone, dialing for dollars. And so what [the large contributions from donors such as you] does — aside from sending the very strong message that there are folks who will have your back if you take tough votes that by partisan nature that may not be popular within your party [sic] — it also in real life frees them to do more work, because it’s spending less time raising those funds.
Burskey is remarking upon the obvious dependence that exists with our current system for campaign finance: the dependence of representatives on fundraising. Because of that dependence, particular kinds of funders — namely large funders — are especially valuable. Large contributors give members two things at the same time — first, and obviously, money. But second, and even more critically, large funders give Members time. A $50,000 contribution gives members the chance to breathe, even as it naturally obliges that Member to the interest or the person who enabled that chance to breathe.
The legislative branch, of course, is not the only minoritarian institution within our republic. Because of the way states allocate Electoral College votes, the presidency is effectively minoritarian too. Not just in the most egregious way, when the candidate who wins fewer votes nonetheless becomes President. But also, and more significantly, in the most regular way: Because of the way states allocate their Electoral College votes, it is only a tiny fraction of American voters that actually matter to the ultimate result. All but two states give the winner of the popular vote in their state all of the electors from that state. This means that the only states that are actually contested in any presidential election are the at most a dozen or so “swing states.” Those swing states represent a minority of America—less than 40% depending on the election. That minority is in turn radically unrepresentative of America itself. The voters in the swing states are older and whiter. Their industry is more traditional. There is 7.5 times the number of people working in solar energy in America as mine coal. Yet we never hear anything about solar energy in a presidential campaign because those people live in states like Texas and California. Coal miners live in battleground states, so they become the central focus of the candidates running for president.
It is thus this tiny unrepresentative minority that effectively selects our President — making the President, as political scientists have evinced, especially responsive to this unrepresentative few. Spending is higher, all things being equal, in swing states over non-swing states. Regulators are particularly responsive to regulatory concerns in swing states over non-swing states. Does America flirt with steel tariffs or ethanol subsidies because either policy makes any sense? No. We live with these policy mistakes because the beneficiaries of these mistakes live in swing states.
And so too with the courts: If any institution within a representative democracy is supposed to be minoritarian, courts, it is said, are. But that is true substantively; it is not supposed to be true politically. Substantively, of course, courts are meant to uphold constitutional rights, regardless of popular majorities. My First Amendment right to speak should not depend upon whether my views are liked by a majority. But the institution of the judiciary is also populated through political action. And to the extent that those actors have power because of a minoritarian corruption of representative democracy, the courts they populate are likewise tainted by minoritarianism.
Consider the United States Supreme Court: The current Court is divided 6–3, with the majority dominated by extremely conservative justices. That division is in no sense representative of America. Two-thirds of America is certainly not “conservative.” And while the random nature of Supreme Court turnover can sometimes produce such unrepresentativeness, this Court was expressly constructed by Senate leaders who changed the norms of confirmation to effectively steal a Supreme Court seat. In February 2016, then-Majority Leader Mitch McConnell declared, after Justice Scalia’s death, that it was “inappropriate” to confirm a nominee of President Barack Obama’s because it was an election year. But when Justice Ginsburg died just six weeks before an election, McConnell declared that it was perfectly appropriate to rush a nominee through the Senate before the 2020 election. In record time (for a modern appointment), Justice Amy Coney Barrett — certainly among the most conservative of the Justices now seated on the Supreme Court — was confirmed by a Republican Senate.
Yet without doubt the most extreme institution of minoritarian democracy in America today is the United States Senate. Of course, that flaw was in a sense intended: the only way small states were going to agree to the new Constitution in 1787 was if the Constitution gave them extra power. That compromise enraged James Madison, but he could read the political writing on the wall and eventually defended this compromise of majoritarianism at the heart of our Republic.
Even then, though, the minoritarianism of the United States Senate was muted. It was muted first because the differences in population were much smaller then than they are today. The most populous state in 1790 (Virginia) was 13x the size of the smallest (Deleware). Today, the most populous state (California) is 68x the size of the smallest (Wyoming). But it was muted more fundamentally because, until this century, the Senate did not regularly block the will of the majority of senators. The original Senate rules expressly protected the power of the majority, a simple majority, to vote on any bill whenever it wanted. It was only when Senator John C. Calhoun, the proslavery Democrat of South Carolina, began to muck about with those rules fifty years after the Constitution was ratified that the will of the majority was placed in jeopardy.
We miss this fact because the technique of this blocking has a name that has long been part of Senate lore — the “filibuster.” And given the tactics long pedigree, it is easy to imagine that what we are talking about today is the same as has existed in the Senate for most of the Senate’s history.
The reality, however, is radically different.
The “filibuster” that existed for most of the Senate’s history was a device that simply slowed the consideration of legislation. It didn’t kill it. The one exception to that characterization was civil rights legislation: The only examples of laws being blocked by the filibuster all the way through 1965 were anti-lynching laws, and laws to improve civil rights. For the rest, the filibuster simply slowed the consideration of legislation. And for that slowing to happen, the Senators supporting the filibuster had to do real work: If a Senator was going to filibuster a bill, he (and it was almost always he) would have to stand on the floor of the Senate and speak. Strom Thurman (then-D-SC) held the floor for 24 hours to slow the consideration of the 1957 Civil Rights Bill. That was not mere showmanship as House Minority Leader Kevin McCarthy’s recent 8-hour filibuster was. It was the only way that a filibuster could work.
Today, however, the mechanism of the filibuster is radically different. All a Senator must do to assure that a bill is filibustered is make a request to their party leader. That request — literally, it could be a simple email or text — then shifts the bill from being one that will pass if a simple majority supports it, to one that can not even be debated unless a super-majority (60 senators) supports it.
The effect of the old filibuster was to keep a bill on the floor of the Senate, as the filibusterers were debating. That allowed their dissent to be better understood, if not in the Senate, then at least by the public. The effect of the new filibuster is exactly the opposite: Its effect is to block any debate until a supermajority allows it. Thus, the For the People Act has been blocked from debate on the floor of the Senate now twice, even though a majority would vote to allow that debate to occur. This modern filibuster thus doesn’t enable debate or understanding. The modern filibuster is just a gag rule on any legislation a minority does not like.
Yet even this description masks the real corruption in the current system. Because the norms that limited the filibuster to only “important” issues — you know, like blocking anti-lynching legislation—are gone. Instead, today, the filibuster is now a routine hurdle that any significant legislation must clear. What that means is that we have now introduced a procedural requirement into the passage of legislation that renders the legislative process more extremely minoritarian than any other legislature in any comparable representative democracy.
You can see this point with a simple accounting. If it takes 60 votes to even debate a bill, that means 41 Senators have the power to block the United States Congress from enacting practically any legislation. (Budget reconciliation and certain nominations are exempted from the filibuster; everything else is subject to it.) So take the smallest 21 states that supported Donald Trump by at least 10 points. Those 21 states would give to the minority leader 42 votes — enough to block any legislation subject to the filibuster. Yet those 21 states would represent just 21% of America’s population. Which means we have evolved a so-called representative democracy in which just over 1/5th of the nation has a veto over any non-budget legislation that Congress might pass.
It is hard to overstate just how extreme this supermajority requirement is. The President (presumptively elected by all of the people) gets a veto. But that veto can be overridden with a vote of 2/3d of Congress. The Constitution can only be amended if 3/4ths of states affirm that amendment — 75%, not 80%. No nation, anywhere, has a supermajority requirement for ordinary legislation that’s that high. None ever in the history of representative democracy has set it at 80% of the nation’s population.
Actually, that’s close to not quite true. There is one important counterexample, historically: The failed United States of America under the Articles of Confederation. That failed constitution effectively required 70% to support any important legislative act. The modern filibuster is comparable. Yet it is hard to see how different that failed system is from one that hands to the most extreme minority in America the right to decide what the rest of us can enact through Congress. What we’ve done in our democracy is to recreate precisely the failed democracy that our Founder had to rally America to discard. Not through an Amendment, not through any law passed by Congress. But simply because of the innovation of America’s modern-day Calhoun — Mitch McConnell.
This filibuster lock alone — ignoring gerrymandering in the states, the gerrymandering of Congress, the suppression of the vote in elections, the Electoral College, the corrupting dependence of money — would be enough to categorize America as a “minoritarian democracy.” Like South African under apartheid, or Liberia with African American nationals, or Baathist Iraq with the power of the Sunni’s, or Syria with the Alawite, or Rwanda with the Tutsi, the American republic, originally designed to be a majoritarian representative democracy, has become minoritarian. Or more precisely, at every level of the current institutions of our representative democracy, we have rendered those institutions unrepresentative. This fact alone should be enough to lead aspiring democracies around the world to look elsewhere for models for how democracy might be made to work. Our only lesson for these democracies is the consequence of our own failure.
In 1997, after he had surprised the world by winning reelection decisively, Bill Clinton convened a small dinner with the top donors to the Democratic Party at the Mayflower Hotel in Washington, D.C. What should he do in his second term? What did they think he could achieve? It was a moment of great hope and possibility — nine months before the revelations of a White House intern would deflect the administration from achieving anything of significance.
As the story is told, about thirty of America’s superwealthy sat around a table. The president asked each in turn to give him their views. One by one, they rose to speak. The last to rise was a businessman, the founder of Stride Rite Shoes, and the second-largest contributor to the Democrats in 1996. As he stood up, few had any sense of what he would say. When he sat down, few could believe he’d actually said what he did say.
“Mr. President,” Arnold Hiatt began, “I know you’re an admirer of Franklin Delano Roosevelt. So I want you to put yourself in FDR’s shoes in 1940 — the year when Roosevelt realized that he was going to have to convince a reluctant nation to wage a war to save democracy. Because that, Mr. President, is precisely what you need to do now — to convince a reluctant nation to wage a war to save democracy.” That would not, of course, be a war against fascists. It would be a fight against fat cats — people like Hiatt, rich people, and people who believed (unlike Hiatt) that just because they are rich, they’re entitled to dinner with the president at the Mayflower. Hiatt was challenging the president to recognize that “current campaign finance practices are threatening this nation in a different, but no less serious way,” he said. “Only your leadership and your office can turn this around.”
There was silence when Hiatt finished. No doubt, some were uncomfortable. Hiatt remembers the President being “gracious.” The only published account reports him as being less than gracious: “Clinton’s response effectively slashed Hiatt to pieces,” according to Peter Buttenwieser, “humiliating him in front of the group.”
At the time Hiatt spoke, Citizens United was still more than a dozen years in the future. We had not yet seen the pathological gerrymandering of 2010. Few could have imagined the open efforts by partisans in state legislatures to suppress the votes of their political opponents. Not a single Republican in any state legislature was then considering legislation to allow state legislatures to override the popular vote for president. And though the filibuster had been deployed beyond the domain of civil rights by then, it would be nine years before the architect of the modern filibuster, Mitch McConnell, would be elected to lead his party in the United States Senate. And no one — literally, no one — could have imagined an event like January 6 taking place in the United States of America. From our perspective today, Hiatt spoke at a time of relative health in the American democracy. And yet to him, and to many others then — including an eighty-eight-year-old woman who, nine months later, would begin a 3,000-mile walk across the country with the words “campaign finance reform” emblazoned across her chest — the corruption of money was already reason enough to “wage a war to save democracy.”
Today, we confront a Republican Party that has effectively declared war on majoritarian democracy. At every level, the leadership of that party challenges the fundamental idea of majority rule. Rather than adjust their policies to appeal to a true majority of Americans, Republicans have embraced the minoritarian strategy of entrenching what has become, in effect, a partisan, quasi-ethnic group against any possible democratic challenge. They rig the system so the majority cannot rule.
In the face of this threat, what America needs is what Hiatt said FDR had been: a leader who could “convince a reluctant nation to wage a war to save democracy.” Or maybe better, what America needs is a Winston Churchill: someone who could convince a distracted nation that there is a fundamental threat to our democracy that we must now wage war to save.
Yet we don’t have Churchill leading this fight. We have Chamberlain. Rather than name the threat, and rally America against it, President Biden has been keen to negotiate the differences in conciliatory fashion — as if the modern filibuster were not a fundamental threat to democracy and as if the fight against majoritarianism were not a threat either. Biden has been eager to engage in a bizarre nostalgia, recalling a golden age when white men from different parties somehow got along, rather than recognizing that American democracy has never faced a threat like this one — even if this is precisely the political reality that Black Americans have known for all of the country’s history.
There was real hope this year for effective action to address this corruption of democracy. Every single major candidate for president in the Democratic Party in 2020 (with the exception of Kamala Harris) had committed to making the For the People Act a top priority in the first hundred days; some had promised even more. Speaker Nancy Pelosi maintained that momentum and passed the act in the House. And after she succeeded in the House, Majority Leader Chuck Schumer committed to getting the Senate to do the same.
Standing in the way, however, was the filibuster.
For most of this year, President Biden defended the filibuster and stood practically silent on this critical reform. He has focused not on the crumbling critical infrastructure of American democracy, but on the benefits of better bridges and faster Internet. Democratic progressives in Congress were little better on this question. Although Alexandria Ocasio-Cortez, Bernie Sanders, and Elizabeth Warren all supported the For the People Act, in the public eye the issues they’ve championed have overlooked the country’s broken democratic machinery: forgive student debt, raise the minimum wage, give us a Green New Deal…. As a progressive myself, I love all these ideas, but none of them are possible unless we end the corruption that has destroyed this democracy. None of them will happen until we fix democracy first.
It may well be that nothing could have been done. It may well be true that nothing Biden could say or do would move the Senators who are blocking reform just now. Yet that fact is not an excuse for this appeasement. Even if we can’t win on this round, we have to frame the stakes accurately and clearly. In the words of the State Department, we have to “confront” these “imperfections” in our democracy, “openly and transparently” — recognizing that they are not mere “imperfections,” but instead go to the very core of the ideal of representative democracy, and reveal our representative democracy as failed.
Someone should at least acknowledge this at the “Summit for Democracy” this week. I am not holding my breath.
Postscript: After more than 20 students staged a 15-day hunger strike in front of the White House, President Biden finally agreed that if the Senate couldn’t pass voting rights legislation, then changes to the filibuster must be taken up. Senator Schumer has obliged. On January 17th, the Senate will take up debate on changing the Senate rules.
We’ll see how far they get. In the meantime, please look up.
