The Electoral College: An Internet Age Dinosaur (Part 3)

THE ELECTORAL COLLEGE:  AN INTERNET AGE DINOSAUR (Part 3)

Earlier posts in this series showed that the Electoral College is not only anti-democratic; it is also potentially dangerous to America’s future.  This post discusses another reason to abolish the Electoral College that will appeal to many citizens:  it artificially protects the dominant political position of the two major political parties.  Many people believe that as coalitions of strange bedfellows, those parties have lacked coherent ideas for decades.  An important reason they still survive is the strong protection against competition they receive from the Electoral College.  It permanently prevents the rise of serious national third-party candidacies.  This protection is so obvious that some political scientists have even described it as one of the benefits that justifies the College’s continued use.[1]  Here is how that protection works.

Throughout America’s history, presidential candidates with strong regional appeal have periodically arisen, such as South Carolina Senator Strom Thurmond in 1948 or Alabama Governor George C. Wallace in 1968.  There have also been a smaller number of truly national third-party candidacies such as that of Theodore Roosevelt in 1912.  The Electoral College affects these regional and national third-party insurgencies in distinctly different ways.   As two political scientists who studied the system extensively conclude:  “The Electoral College system is quite clear in its bias:  it favors third parties with a sectional orientation, and it discriminates against those with a national orientation.”[2] As a result, strong sectional third party candidacies such as the Wallace candidacy might sometimes be able to throw presidential elections into the House of Representatives by denying either major party candidate a majority of the Electoral College vote.[3]  In that event, there will be some bargaining for the votes of Congressmen from states supporting the third party candidacy which may in turn influence national policy, but the third party candidate is highly unlikely to win the election and become president.  And national third-party candidates are unlikely to ever win either.

National third-party candidacies are seriously impaired by the effects of the “unit rule” (statewide winner-take-all voting for the Electoral College electors) and the need to compete in party stronghold states where the dominant major party is protected by that rule.[4]  The unit rule helps Republicans who are in control in some states boost the chances of Republican candidates there, and it helps Democrats who control other states to do the same thing for Democratic candidates.   But in both cases it leaves minority voters in those states without any voice.  In 1992, for example, businessman Ross Perot received more than 19.7 million votes—18.9 percent of the total vote cast—and did not receive a single vote in the Electoral College.[5] In the 1992 presidential election, George H.W. Bush won all twenty-five of the electoral votes of Florida even though he received only 41 percent of the vote there, as opposed to the 59 percent of the vote received by Bill Clinton and Ross Perot.  On the other hand, Bill Clinton won all fifty-four of the electoral votes of California, though he received only 46 percent of the votes there.

Third-party candidates with national popular appeal—such as Ross Perot or Theodore Roosevelt—can draw votes away from the major parties across the country.  In those parts of the country where one major party is politically dominant (so-called “Red” or “Blue” states), even the votes lost to a nationally significant third-party candidate are likely to leave the dominant major party with a plurality, so it will still receive all of the Electoral College votes.   It is possible, though, that a third-party candidacy will change the outcome that would otherwise occur between the two major parties by drawing votes away from the leading major party candidate (as an example, Ralph Nader’s 97,000-plus votes in Florida vs. the state’s loss by Vice-President Albert Gore to George W. Bush in the 2000 election by 537 votes).[6]

But the national third-party candidacy would need to be exceptionally strong before it would change the outcome so much that the third-party would win.  Under the Electoral College, the third-party candidate will normally be shut out entirely or receive an electoral vote far smaller than its popular vote.  This is what happened to Theodore Roosevelt, probably the most popular third-party candidate of the twentieth century, when he ran in 1912. Roosevelt won 27 percent of the popular vote, or nearly 70 percent of Woodrow Wilson’s popular vote total.  Roosevelt received only 20 percent as many Electoral College votes as Wilson, however.

In the presidential elections from 1992 through 2012, more than half of all states have been won consistently by one major party or the other, and these states have a total of more than 344 electoral votes (more than sixty percent of the Electoral College total vote).[7]  This means that to win, a third-party candidacy must be strong enough either to seriously challenge one of the two major parties in its stronghold states by winning a plurality of votes in some or all of those states, and that it must also win a plurality in all of the states that shift allegiances from election to election.  This level of electoral success is a tall order, a heavy burden imposed entirely by the Electoral College, since a strong national third-party candidacy like Theodore Roosevelt’s might well survive in a system that used a national runoff.  Roosevelt, after all, came in second to Wilson in 1912 in the popular vote.  So the College serves as a formidable barrier to third-party candidacies.

The long and short of it is this:  if you like one or both of the the two major parties, and think that they’re just the right folks to lead America into the future, you should want to keep the Electoral College.  If, on the other hand, you think that they’re both pretty much bankrupt and would like to see some real political competition for a change, you should favor getting rid of it for this reason as well.

Notes

[1] Larry Sabato, A More Perfect Constitution (New York:  Walker & Company, 2008), 138-39.

[2] Lawrence D. Longley and Alan G. Braun, The Politics of Electoral College Reform, 2d ed. (New Haven: Yale University Press, 1975), 9.

[3] In 1968, Wallace carried five states and received 46 electoral votes.  By May, 1972, he had already won three state primaries, including Florida, and was favored to win two additional primaries and expected to have at least ten percent of the total votes at the Democratic convention when an assassination attempt left him permanently paralyzed.  See William Greider, “Wallace Is Shot, Legs Paralyzed; Suspect Seized at Laurel Rally”. Washington Post, May 16, 1972 (accessed 12/28/2014).

[4] Although the use of the “unit rule” is not required in allocating state electoral votes, at present it is used in forty-eight states.  In 1800, when Thomas Jefferson was elected, it was used in two states.  In any two-party system where the unit rule is a permissible option, there are strong incentives to adopt it, so it’s fair to think of the unit rule as part of our Electoral College system.

[5] Joseph A. Pika and John Anthony Maltese, The Politics of the Presidency, 6th ed. (Washington, D.C.: CQ Press, 2004), 68.

[6] Ralph Nader denied that his candidacy had had a “spoiler” effect, but it is clear that there will be elections where a third-party candidate will actually change the election result.  This is an important reason why major parties periodically engage in surreptitious support for third-party candidates, hoping to draw votes from an opponent.

[[7] Dan Balz, “The Republican Party’s uphill path to 270 electoral votes in 2016 elections,” Washington Post, January 18, 2014, http://www.washingtonpost.com/politics/the-gops-uphill-path-to-270-in-2016/2014/01/18/9404eb06-7fcf-11e3-93c1-0e888170b723_story.html (accessed 12/28/2014).

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THE ELECTORAL COLLEGE—AN INTERNET AGE DINOSAUR (PART 2)

THE ELECTORAL COLLEGE—AN INTERNET AGE DINOSAUR (PART 2)

This post discusses two important political costs that the Electoral College imposes on America’s political system.  The first is that it periodically elects “minority” Presidents; that is, candidates who have lost the popular vote can become President.  The second is that it confers great political influence on strategically located special interest voting blocs—influence that is often grossly disproportionate to their actual size.  Our increasingly strained system can no longer afford these costs.[1]

The Electoral College has elected Presidents who lost the popular vote several times during our history, most recently President George W. Bush in 2000.  Some would dismiss this “minority president” problem as being the result of a small series of unpredictable flukes.  But political scientists believe that it is precisely when Presidential elections are closest—i.e., most competitive—that the chances are greatest that using the Electoral College system will result in the election of a Presidential candidate who receives a popular vote minority.  Of the eleven presidential elections in our history through 2008 in which the leading candidate had a margin of less than three points over his closest competitor, the Electoral College (assisted by the Supreme Court in at least one case) has chosen a candidate who did not receive a popular vote majority in at least three (some would say four), elections. [2]  In other words, we overrule the popular will and elect a minority President between one out of every three and one out of every four times in close elections.  Yet those are precisely the elections when voters think that the outcome matters most and when the violation of democratic principles is most harmful.

Electing minority presidents is also dangerous, because it can lead to the election of a President who is viewed as illegitimate by a large part of the American people.[3]   As the events of September 11, 2001 proved, America cannot afford to have a President who is seen as illegitimate.  When the United States came under terrorist attack, President Bush needed to be able to perform his role as Commander-in-Chief without facing any questions about his legitimacy whatsoever.  But Bush had lost the popular vote in the 2000 election to Albert Gore, Jr.  That fact, together with the Supreme Court’s extraordinary intervention in the 2000 election through its Bush v. Gore decision, had brought Bush’s legitimacy as President into question for many people.[4]  More than two years after the election and well after the 2001 attacks, 38 percent of the American population still did not consider George Bush the legitimate president of the United States.[5] We need Presidents who can exercise the full powers of that  office with unquestioned public support for his or her right to exercise them.  Minority presidents lack the needed legitimacy to gain that support.  And there is another large cost imposed by the Electoral College on our political system—it unfairly gives disproportionately large influence to special interest voting blocs in strategic states. Here’s how.

Under the Electoral College structure (combined with the “winner take all” unit rule for choosing electors), small blocs of interest group voters located in strategic states who will all vote the same way based on an issue of overriding concern to them can “swing” the outcome of Presidential elections.  The result is that satisfying the political interests of those bloc voters becomes far more important to candidates than it would be otherwise.  The nature of the membership of such strategically placed blocs has changed over time as our population has grown and the concentration of various demographic and political groups has shifted from one part of the country to another through migration. For example, during the 1990s, it appears that rural voters were disadvantaged by the Electoral College because their vote was concentrated in electorally less important smaller states, while Hispanic voters were given a significant voting advantage by it because their vote was concentrated in electorally influential large states.[6] During some earlier time periods, it appears that the Electoral College may have given a significant advantage to Jewish voters, who tended to be concentrated in states that had large numbers of electoral votes.[7]

In some states where the major parties are very competitive, these strategic blocs may consist of as few as 100,000 voters.  By comparison, in the 2012 election, more than 129 million votes were cast, and Barack Obama was elected president by a nationwide margin of about 5 million votes, so the loss of 100,000 votes would be of little consequence in a popular vote system.  If the Electoral College did not exist, therefore, these same bloc voters would have no more influence on Presidential politics than any other similarly-sized group of voters.  The possibility of presidential “rewards” to favored blocs is especially troublesome in the context of national security and foreign affairs, when policies not in the national interest may be adopted to curry favor with a particular bloc of voters, such as an ethnic group whose members are concentrated in a few strategically important states.[8]

The temptation to pander to bloc voters in order to win close elections can be very great.[9]  In 2016, for example, it is quite likely that enormous attention will be paid to the political demands of relatively small voter blocs in fewer than ten contested swing states with roughly 100 electoral votes (out of a total of 538 votes), since they may well decide the election outcome. To allow the special interests of such small groups of voters to control presidential election outcomes cannot be good for the country, and would occur far less often in a popular vote system.

That the Electoral College elects minority-vote presidents and also gives vastly disproportionate influence to strategically located special interest groups are only two of several very good reasons to abolish it.

.

[1] The Electoral College also prevents the rise of national third-party presidential candidates, a large cost that will be discussed in a later post.

[2] These three elections are 1876, 1888, and 2000.  Lawrence D. Longley and Neal R. Pierce, The Electoral College Primer (New Haven: Yale University Press, 1996), 135; George C. Edwards III, Why the Electoral College is Bad for America (New Haven: Yale University Press, 2004), 45.  Some political historians would add a fourth, based on the fact that the House of Representatives chose John Quincy Adams as President in 1824 over Andrew Jackson, although Jackson led the Electoral College voting by a large margin (but failed to achieve a majority) and quite probably would have been the popular vote winner (had popular votes been cast).  If 1824 is included, the rate of Electoral College failure to choose a popular vote majority candidate correctly in close elections would be greater than 35 percent.  Some might see Abraham Lincoln’s election with less than 40 percent of the popular vote as a counterexample, though.

[3] Joseph A. Pika and John Anthony Maltese, The Politics of the Presidency, 6th ed. (Washington, D.C.: CQ Press, 2004), 52, 67-70.

[4] Justice Stephen Breyer’s dissent in Bush v. Gore persuasively argued that the 2000 election should have been decided by the House of Representatives.  Doing so would very probably not have changed the election outcome.  Thus, the argument that the Court’s decision was both legally wrong and misguided is not “sour grapes.”  Bush et al. v. Gore et al., 531 U.S. 98 (2000), at 144 (Breyer, J., dissenting).  The decision’s greatest political vice was the damage it did to Bush’s political legitimacy, which would have been greatly strengthened by winning a contested House election, just as Jefferson’s was strengthened by the hotly contested 1800 House election he won.

[5] George C. Edwards III, Why the Electoral College is Bad for America (New Haven: Yale University Press, 2004), xvi.

[6] Lawrence D. Longley and Neal R. Pierce, The Electoral College Primer (New Haven: Yale University Press, 1996), Table 21, 148.

[7] Id..

[8] For a good recent example of these potential election dynamics, see Nate Cohn, “Why the Cuba Issue No Longer Cuts Against Democrats in Florida,” New York Times, December 17, 2014, http://www.nytimes.com/2014/12/18/upshot/why-the-cuba-issue-no-longer-cuts-against-democrats-in-florida.html?_r=0&abt=0002&abg=0 (accessed 12/19/2014).  Note that the merits of President Obama’s decision are irrelevant to the political analysis here.

[9] For a classic example of the political calculations that result from the existence of strategic bloc voting in an Electoral College system, see the memorandum to President Truman from his senior adviser Clark M. Clifford, “Memorandum for the President,” November 19, 1947, available at http://www.trumanlibrary.org/whistlestop/study_collections/1948campaign/large/docs/documents/pdfs/1-1.pdf. (accessed 12/19/2014). Though it was written in 1947, this memorandum is still entirely relevant to today’s presidential politics.

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The Electoral College: An Internet Age Dinosaur (Part 1)

The Electoral College:  An Internet Age Dinosaur (Part 1)

For 225 years, the Electoral College has elected the American President, not the American people.  In fact, it was created to prevent Presidents from being elected by popular majorities.  Constitutional scholar Akhil Amar called it “a constitutional accident waiting to happen” in 1998.  Shortly afterwards, it caused bitter political controversy.[1]  In 2000, George W. Bush, who lost the popular vote, was still elected president by winning Florida’s electoral votes–at least according to five unelected Supreme Court justices.  This post explains how the Electoral College works, why the Founders created it, and why it is a dinosaur in the Internet Age.[2]

The Electoral College may seem mysterious, but it is based on a few simple rules.[3]  All actual votes for President are cast by individuals called “electors,” not by ordinary voters. [4]   Electors are chosen  by states.  Each state receives one elector for each Senator and Congressional seat it has.[5]  State legislatures are free to decide how to choose electors.[6]  Individual Americans have no constitutional right to vote even for Presidential electors, let alone directly for President.[7]  All fifty state legislatures could decide to choose the Presidential electors themselves, and negate the results of a popular vote for electors, even after the popular vote had all been cast.  If no candidate for president receives a majority of the Electoral College vote, the House of Representatives decides who will become President, a process commonly called “contingent” election.  Why did we create such a system?

*******************

The Electoral College grew out of a compromise by the 1787 Philadelphia Constitutional Convention.  The Founders argued throughout their four month-long meeting about how the President should be elected.  That issue was among the last major ones resolved.  The College was a solution to a tug-of-war not only over who would elect the President but, just as importantly, how powerful the office of President would be.

Some delegates, such as Roger Sherman of Connecticut, favored election of the President by Congress because it would make the President far weaker than a king. They wanted the President to “exist primarily as an agent for carrying out Congress’s will.”[8]  Sherman said that he wanted the President to be “absolutely dependent” on Congress, as it was Congress’ will “which was to be executed.”[9] Making the president independent of Congress would be “the very essence of tyranny.”[10] Some delegates, including Elbridge Gerry of Massachusetts and Gunning Bedford of Delaware, went so far as to propose that the President be chosen directly by the state legislatures.[11]  Other delegates, such as William Paterson of New Jersey and  his small state coalition, wanted to make the presidency so weak that they proposed that the President be removeable from office by a majority of state governors.[12]

Other prominent delegates, including Alexander Hamilton of New York, James Wilson of Pennsylvania, and James Madison of Virginia wanted a stronger President.  They envisioned a leader who could be independent of a “state-dominated” Congress and instead represent the broad national interest.[13]  Wilson argued that the President should be elected directly by the people, which would avoid problems such as undue Congressional influence.  James Madison described popular election as the best way to choose an able President, at least in principle.  But others such as Elbridge Gerry described popular election as a “radically vicious” idea, pointing to the “ignorance of the people.”  Gerry believed that if the people were allowed to elect the president, they could be dominated by groups of “respectable, united and influential men.”[14]  Charles Pinckney of South Carolina thought that the people could be duped by “a few active and designing men.”  George Mason of Virginia added that popular election of the President would be “the equivalent of ‘refer[ring] a trial of colors to a blind man.”[15]  Ultimately, even most delegates who wanted a stronger president were unwilling to support direct popular election.   Wilson’s proposal for direct election was defeated by a vote of nine states to one.

Caught between significant opposition to popular election of the President and many delegates’ continued opposition to Congressional election, the Philadelphia delegates compromised by inventing the Electoral College.  Under this convoluted system, states could decide how to choose electors, who would then in turn actually choose the President.  But the advocates of strong state authority and a weak presidency extracted vitally important concessions in return.  Most relevant here, small states were assured a large “bonus” vote, by giving each state, no matter how small, a minimum of three electors in the Electoral College.[16]

By the early nineteenth century if not before, informed observers had concluded that at least parts of the Electoral College system violated republican principles of proportionality and voter equality.   As Sanford Levinson points out, James Madison acknowledged as much.  In 1823, Madison wrote:

The present rule of voting for President by the House of Representatives is so great a departure from the Republican principle of numerical equality…and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate and best friends.[17]

Today, the anti-democratic rationale underlying the Electoral College has been rendered obsolete by changes in American social conditions.[18]  In the Internet age, an overwhelming majority of voters can readily obtain necessary information about presidential candidates and discuss issues widely online, so there is a nearly level “information playing field.”  There would be no relative disadvantage to states from allowing popular elections due to differing voter eligibility rules.  And there is no longer any plausible justification for giving voters in different states votes of greatly unequal weight in Presidential elections.   It will strengthen our democracy to give the people the right to elect the President directly by majority vote.  The Electoral College is an Internet Age dinosaur, and it should be abolished.[19]

Notes

[1] Akil Reed Ahmar, “An Accident Waiting to Happen,” in Constitutional Stupidities, Constitutional Tragedies, ed. William N. Eskridge Jr. and Sanford Levinson (New York: New York University Press, 1998), 15-17.

[2] Future posts will explain other very unfortunate side effects of continuing to use it to elect Presidents.

[3] Article II, Section 1 of the Constitution established the Electoral College system.  A good general overview of its history and of the issues it raises is Lawrence D. Longley and Neal R. Pierce, The Electoral College Primer (New Haven: Yale University Press, 1996).  Also informative is Lawrence D. Longley and Alan G. Braun, The Politics of Electoral College Reform, 2d ed. (New Haven: Yale University Press, 1975).   For incisive analyses of problems with the Electoral College see Amar, “An Accident” (see note 1); Sanford Levinson, Our Undemocratic Constitution:  Where the Constitution Goes Wrong (and How We the People Can Correct It), 81-97, and  George C. Edwards III, Why the Electoral College is Bad for America (New Haven: Yale University Press, 2004).  Earlier scholarly analysis of various biases in voting created by the Electoral College is found in John H. Yunker and Lawrence D. Longley, eds., The Electoral College:  Its Biases Newly Measured for the 1960s and 1970s, vol. 3: 04-031, Sage Professional Papers in American Politics (Beverly Hills: Sage Publications, 1976).

[4] Though there is debate on the issue, electors do not appear to be constitutionally required to vote for any particular candidate for President.  Longley and Pierce, Primer, 102-109; Edwards, Electoral College, 17-27.  This leads to the problem of the so-called “faithless elector,” who decides to vote for a presidential candidate different than the one supported by the voters who elected the elector.

[5] Under the Twenty-Third Amendment to the Constitution, the District of Columbia also receives three electors, though it has no voting Senators or Congressman.

[6] Methods that legislatures have employed during our history (or could employ) include:  choosing electors directly; allowing them to be elected by plurality statewide vote in a “winner take all” system, the system most commonly used today, which is called the “unit rule”; allowing them to be determined by Congressional district majority vote, a system called the “district rule;” or even proportionally awarding them based on the statewide vote for different candidates.

[7] Alexander Keyssar, The Right to Vote:  The Contested History of Democracy in the United States, Rev. ed. (New York: Basic Books, 2009), 262.

[8]  Richard R. Beeman, Plain, Honest Men (New York: Random House, 2009)(“PHM”), 231.

[9] The Records of the Federal Convention, Max Farrand, ed., 4 vols. (New Haven:  Yale University Press, 1966)(“Farrand”), 1: 68.

[10] Id. At the Convention, Sherman also had a strong hand in making sure that under the Constitution, Congress in turn was strongly dependent on decisions made by the states’ legislatures.  At the time, state legislatures could exert powerful influence on Congress because the legislatures directly elected Senators and also strongly influenced the election of federal House of Representatives members by setting their district boundaries. The district boundaries drawn by state legislatures could be so politically arbitrary that the process of creating them became known as the “gerry-mander” after a district was drawn in an odd lizard-like shape specifically designed to protect an ally of Massachusetts governor Elbridge Gerry.

[11] Beeman, PHM, 135.

[12] New Jersey plan, Farrand, 1: 244.

[13] A majority of members at the Convention wanted the President to be able to serve more than one term, and they were concerned, among other things, that Congressional election of the President would lead him to curry favor with Congress in order to be re-elected.

[14] Beeman,  PHM, 252.

[15] Id (emphasis added).

[16] In a second key concession, the Convention accepted Roger Sherman’s contingent election proposal.  Under it, the House of Representatives would vote for President in certain cases.  But it would vote under special rules that gave small states far more power than they would otherwise have had, because each state would cast only one vote, no matter how large it was. A contingent election occurred in 1800, and resulted in the election of Thomas Jefferson by the House of Representatives.  Some historians conclude that it was commonly expected that under the Constitution, the House of Representatives would often choose the President, because the Electoral College would frequently not produce a majority for any candidate.  The contingent system should have been used to decide the 2000 election.  See the dissent of Justice Breyer in Bush v. Gore, 531 U.S. 98 (2000).

[17] James Madison to George Hay, August 3, 1823, quoted in Levinson, Our Undemocratic Constitution, 95.

[18] Ahmar, “An Accident” (note 1).

[19] And it has become obvious in recent years that the Electoral College system has other serious political costs to be discussed in future posts.

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IS AMERICA REALLY A DEMOCRACY?

Is America Really a Democracy?

Many Americans think of the United States as one of the world’s leading democracies.  In theory, here the people rule.  But in reality, the American constitution was designed in part to prevent majority rule from trampling minority rights.  So the Founders added to the Constitution a series of checks on the popular will, including the Supreme Court, the Senate, the presidential veto, and the Electoral College.  But today, these same institutions prevent the majority will from operating far more often than was originally intended.

The Supreme Court’s tenure is a good example.  Justices are appointed for life.   The longer justices live, the fewer opportunities presidents have to choose new justices, who might alter the Court’s direction.  In 1787, there were competing ideas about justices’ tenure.  Some people thought that justices should serve for twenty-five years, others that they should serve for life.  But there wasn’t much difference then, because life expectancies were far shorter than today.  If a justice was appointed in 1789 in his mid-40s, and had a twenty-five year term, the odds were relatively good that he would die before it ended, so it didn’t make much difference whether his term was twenty-five years or life.  Today, differing terms would have far different effects.  If a justice is appointed in his early 40s, it is reasonable to expect that he or she might well serve at least 40 years.   So the Supreme Court today is far less amenable to popular input than many citizens probably wanted in 1787 or now.  At the same time, in cases such as Bush v. Gore (which decided the 2000 presidential election), the Supreme Court has arrogated to itself decisions the Constitution intended Congress to make.[1]

Another example is the presidential veto.  When it was created, it would typically have taken the votes of congressmen and Senators representing about two-thirds of the American population to override a veto.  Today, political scientists think that there may be times when it would require the votes of Senators representing seventy-five percent, or even a considerably higher percentage, of the population to override a veto. Only a very small fraction of vetoes are successfully overridden.  This means that the presidential veto is now far closer to the monarchical absolute veto advocated by a few Founders rather than a substantial check on the popular will.  Yet we still elect these more powerful presidents even when they fail to receive a popular vote majority because we elect them using the Electoral College.  It becomes more anti-democratic and dangerous with every passing day (for reasons to be explored in a series of subsequent posts).[2]

Congress’ broad lawmaking powers were originally seen as the principal means of expressing the popular will.  Other government branches were given their powers primarily as a means of restraining it.   But since the mid-twentieth century, at least, Congress has increasingly abdicated its authority on issues such as military intervention abroad and control of national defense and foreign policy.  In addition, since World War II, Congress has repeatedly delegated what practically amounts to lawmaking authority to the executive branch without agreeing on clear guidelines for its use.  These developments have substantially decreased Congress’ ability to represent the popular will.  Presidential power has been expanding for decades through regulatory action to fill the vacuum left by Congress’ chronic inability to reach meaningful agreements on legislation. We have moved from congressional government toward government through an imperial presidency.

There is one Congressional institution that is more responsible than any other for Congress’ failure to govern–the Senate “filibuster rule.”  Without getting into details, the effect of the filibuster rule is that ordinary legislation cannot pass the Senate unless at least sixty Senators agree to it.  This means that legislation cannot pass unless it is watered down to make it acceptable to a significant number of Senators in the minority on a legislative issue.  On any issue where the major parties are sharply divided, this means that legislation will not move forward unless the majority permits the minority to exercise a veto on its content.  The filibuster rule can only be defended on the grounds that it is necessary to ensure that minorities are reasonably consulted on legislation.  But why should minorities be able to hamstring progress when the issue is one of legislative policy rather than one that affects fundamental rights (which can be protected in court)?  Isn’t the purpose of electing majorities to give them the authority to govern?  If they choose to do so without addressing minority interests and voters are unhappy about this, they can retaliate at the polls by making a minority into a majority. [3]

The fact that neither Democrats nor Republicans are willing to end the filibuster rule–even though both have at times had the power to do so–shows that it is more important to both parties to continue to have a stranglehold on the entire Congressional legislative process than it is to them to actually govern by passing legislation.   This means that ensuring that they have the ability to protect the status quo–to prevent change–is actually their paramount objective. This means that needless gridlock will persist.  It also means that presidents become more powerful, and so presidential elections become the focus of politics.

America was not intended to be a pure democracy, or even a pure republic.  But it was surely intended by the Founders to be more republican than it is today.  Today, on many important issues, where sixty–or seventy–or even eighty percent of the population clearly wants change to occur, the government does not respond, or responds only when a crisis forces action.  It should come as no surprise that as a result popular support for government institutions has sharply declined over the past several decades.  It is high time for our antiquated constitution to change.[4]

[1] On this, see the brilliant dissent of Mr. Justice Breyer in Bush v. Gore, 531 U.S. 98 (2000).

[2]  A very small percentage of presidential vetos have historically been overridden (about 7 percent as of 2004).  Of course, the coalitions that would sustain a veto will depend on the nature of the issue, and on whether the president is willing to trade votes for support or opposition on other legislation.  But today the Senate consists of states so disproportionate in size that if Senators from the top fifteen or so states in population, which together have about two-thirds of the nation’s population, all voted to override a veto, they would not have nearly enough votes to override it, even if their only opponents were the Senators from the seventeen smallest states, which have much less than twenty percent of the population.  Similarly, the populous states would also lose whenever they were opposed by Senators representing only twenty-five percent of the population.  For more information and background on veto procedure, see http://www.archives.gov/legislative/resources/education/veto/background.pdf (accessed 11/30/2014) and Elizabeth Rybicki, “Veto Override Procedure in the House  Senate,” Congressional Research Service report, July 19, 2010.

[3] For the history of the filibuster rule and details of its operation, see Charles Tiefer, Congressional Practice and Procedure:  A Reference, Research and Legislative Guide (Greenwood, 1989).

[4] A number of the points made in this post are discussed in broader context in Sanford Levinson’s perceptive book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (Oxford University Press, 2006), which also considers various reforms.  For another thought-provoking analysis of various possible constitutional changes, see Larry J. Sabato, A More Perfect Constitution: Why the Constitution must be revised:  Ideas to inspire a new generation  (Walker Publishing, New York, 2008).  Note:  Reference here to these books is not intended as an endorsement of their proposed reforms.