Good morning,
As is lost on no one, our democracy is at risk. One threat is, of course, the relentless effort to delegitimize elections, disenfranchise large swathes of the electorate, and manipulate the process of certifying elections. Then there is the delegitimization of our democracy, claiming election fraud when none has been proven, and various conspiracy theories about some sort of “deep state.” Add to that the endless railing about law enforcement “out to get” Mr. Trump, including the calls to “defund the FBI,” claiming judges are biased and agenda-driven, and other such malarkey.
MAJORITY RULE IS A FANTASY
There is, however, an additional dilemma that feeds much of this. This is that our system, originally created to constrain the excesses of the majority, has created a permanent state of minority rule. This is caused by the disproportionate allocation of Senators, the small-state bias of the electoral college, the filibuster, and the gerrymandering of a defined maximum number of House districts. Some would argue that our system is broken; however, I think it’s just in the need of some tough love to bring things into greater balance.
It is unrealistic to believe we will ever be able to pass an amendment to the Constitution in our lifetimes to correct any of these inequities (or, in fact, an amendment about anything). Supermajorities are required in both houses of Congress, as is ratification by three-quarters of the states. That’s just not going to happen.
CHANGING THE GAME WITHOUT BENDING THE RULES OR AMENDING THE CONSTITUTION
So let’s assume the Constitution is untouchable. Is there anything we can do to right the failings of our democratic institutions? There are many proposals out there. Here are a few that can go a long way to creating a system more equitable and more reflective of the majority of America. They can be achieved through legislation. And all of these ideas have already been proposed. Of course, this goes out the window if/when the Republicans gain control of the House, as seems likely:
1. Make DC a state. Maybe Puerto Rico too. All that is required is a majority vote in both houses of Congress (oh, wait! The filibuster—I forgot!). Frankly, let the Republicans filibuster and then have to defend a position that would smack as racism for a largely Black potential state (in an election year). Seriously, there is no rational basis for not making the District of Columbia a state. It would have a greater population than some existing states. It would enfranchise disenfranchised voters, primarily minorities. It is contemplated by the Constitution. Arguments that it would “throw off the balance” of the States by adding one that would lean left are disingenuous, as the system already is off balance through the bias toward small, less populous states, benefiting the Republicans.
2. Increase the number of House members. 435 is an arbitrary number—one that can be (and has been) changed. This is an argument propounded now and then but rarely getting the attention of the other proposals. But this is simple. Previously, the number of House seats increased every time a new state came into the Union. That was the case until Congress adopted the Apportionment Act, freezing the number of House seats at 435. The ostensible reason for limiting the number of seats was to limit the size to make the chamber more wieldy. But since then, the nation’s population has grown to over three times the size it was a hundred years ago. As a result of the arbitrary limit on the size of the House, representation in that chamber is skewed such that the larger states are shortchanged (because each state is guaranteed at least one House seat—including those with small populations). As such, the “remaining” seats are apportioned among an ever-increasing number of citizens.
The Wyoming rule has been floating around out there, providing that the districts be sized more in line with the standard district size being comparable to that of the smallest state by population (currently Wyoming). Were this the case, then the House would have 547 seats according to the 2010 census and 573 seats based on estimates of today’s ratio. Doing this would also make the House, the “people’s” chamber, more accountable to districts of more manageable size. There is no “magic” to the 435 number at which the House is currently fixed. And it is hard to make the argument that there is some magic threshold that is crossed by adopting the Wyoming rule (e.g., is it really unwieldy at 573 seats, but a model of efficiency at 435 seats?). I would favor going even further by doubling the number of seats, to improve representation and reduce the disparity in population from the largest districts and the “single district states.” An added benefit would be that the effect of gerrymandering would be reduced under this plan.
3. Get rid of (or at least modify) the filibuster. I’ve mentioned this before. The Senate was designed to move slowly and deliberately. But it also was designed TO MOVE. Its six-year staggered terms were intended to remove it from the day-to-day politics. It’s not working now. A mere minority can jam nearly any possible policy initiative, to the detriment of the nation. The filibuster is a Senate rule and Senate rules can be changed. It was originally a means of ensuring that the slave states (and later the Southern Jim Crow states) could stop any legislation, particularly on civil rights. Its effect these days is to cause everything to go strictly along party lines and ensure deadlock. Even if the filibuster isn’t done away with, here are two options proposed that I like:
a. Reinstitute the “standing filibuster.” Originally, if one were to filibuster, one had to be speaking in the chamber. Instead, there is just some vote counting of those supporting the minimum number of 40 to prevent cloture (which is the legislative vote to end a filibuster). Let’s make there be a cost to delay. While it might be that someone can stage a Mr. Smith Goes to Washington heroism by standing (literally) against the bad guys, more often it shows the country what it means to push the Senate to a complete stop while reading the phone book.
b. After, say, 30 days of gridlock, lower the number from 60 to 55. After another 30 days, lower it to 52. After 30 days more, it’s simple majority. By instituting these reducing numbers, there is pressure on the minority to try to negotiate and get a better deal, before their power to prevent legislation wanes.
4. Establish terms for Supreme Court Justices. I’d support 20 years or age 80, whichever comes first. It is absurd to have people hanging on for so long. The Court benefits from fresh blood and different perspectives. It benefits from people who haven’t served much of their productive lives solely as jurists on the nation’s highest court. Plus, when the life term was established, life expectancy was considerably lower than it is today. And Justices are being nominated younger and younger, so they hang around for 40 years. I would actually prefer increasing the Court by two seats (to eleven), to adjust for the McConnell court-packing scheme. Had Mr. Obama been able to nominate a Justice in his last year in office (or had the ridiculous standard been applied equally to Mr. Trump), the Court would have a 5-4 conservative majority and we wouldn’t be in the pickle we’re in. That said, the protestations from the right that this would be court-packing and a dangerous precedent refuse to acknowledge McConnell’s actions to do such that.
Have a great day,
Glenn.
From the archives:
Whenever I hear filibuster, I think of Mr. Smith Goes to Washington.👍