Government of the Minority
It is three days after Election Day and the results have yet to be firmly established. Joe Biden is closing in on the necessary 270 Electoral Vote majority, but we will not know for certain if he has ousted Donald Trump as President until later today. Republicans appear to have retained their majority in the Senate while Democrats will see their House majority shrink. It is notable that this is the largest turnout for a Presidential election in the nation’s history and that, when the final tally is calculated, Joe Biden will have garnered more votes than any previous candidate. Yet, we are looking at a national government which will effectively be subject to rule by a minority.
Why is that?
The reasons are both simple and complex. Regarding the former, consider the unique structure of the republican form of government tendered to us by the drafters of the Constitution: In dividing power between three branches, they specified a bicameral legislature in which both houses must jointly pass legislation to be sent to the President to be signed into law. On the surface, this is a straight-forward process. Except the Constitution is a statement of principles, a framework for government, not a detailed plan. This is the point at which things get complicated.
In creating the legislative branch in Article I, the Constitution gave each House of Congress the power to “determine the Rules of its Proceedings”. As a consequence, much of what the average citizen believes is done pursuant to law is instead a practice established by a rule of that body or tradition. The Senate’s filibuster is the good example: According to Senate rules, a vote of three-fifths of the Senators (60 of the current 100 members) is required to end debate on a bill and send it to the floor for a vote. If the majority cannot muster sixty votes, the bill dies. The filibuster allows the minority to stop a bill before the Senate can vote on it. (Political scientists refer to this as a “veto point”, one of several in the legislative system.) During the first six years of Barack Obama’s administration when the Democrats held the Senate majority, the Republican minority led by Mitch McConnell repeatedly obstructed the President’s agenda, employing the filibuster an unprecedented number of times.
In 2013, frustrated by the Republican minority blocking President Obama’s nominees to the Federal courts, Majority Leader Harry Reid engineered a change to Senate rules which allowed judicial nominees (except Supreme Court Justices) to be confirmed by a simple majority. Subsequent to Donald Trump’s election, current Majority Leader McConnell extended the simple majority rule to Supreme Court nominees. The filibuster remains in place for the bulk of the bills introduced in the Senate. Which brings us to the probability of President Joe Biden and a Democratic House having to shepherd a legislative agenda through a Senate controlled by the GOP. Democratic Senators would be unable to muster the sixty votes necessary to invoke cloture and end a filibuster and bills passed in the House would die in the Senate.
It may be argued that, since the Republicans are in fact the majority in the Senate, this reflects the intent of the Constitution. Consider again the awkward structure the Founders presented us: They devised the Congress so the House of Representatives would represent the "people", with its members being elected on the basis of the population in each state. The Senate, however, consists of two senators per state regardless of population. This grants a disproportionate amount of power to the states with smaller populations. The current 53 Republican Senators in the majority represent 153 million Americans while the 47 Senators in the minority (45 Democrats and 2 Independents) represent 168 million. In the 2018 Senatorial elections, Democrats garnered 54 percent of the total votes cast in Senatorial contests and lost 2 seats. The Senate majority represents a minority of the population.
The near-term implication is that a Biden Administration, even given the immediate imperative to deal with the pandemic and its economic consequences, will face opposition from the Republican Senate in enacting a governing agenda (think budget and appointments, for starters). There are pressing needs for reform: voting rights, the Supreme Court, and gerrymandering, to name a few. There is the exigent necessity to address climate change. Systemic racism must be addressed. These all will be formidable challenges when dealing with an obstinate Senate.
What is at stake is power- who holds it and how they wield it. We cling to the misconception that our government is of, by, and for the people. It would be more apt to say we have a government of, by, and for the few. Who are the few? As prosecutors like to say in corruption cases, “follow the money”. There is a plutocratic class in our country whose political goal is simple, to ensure government does not hinder their ability to accrue wealth and maintain their power and status. Using their wealth in strategic ways, they have realized a long-term plan to get a grip on the levers of power. The role of money in elections and in shaping policy has given the wealthiest Americans near-unhindered access to the political system. Like an iceberg, the mass of this plutocracy remains under the surface and what we see is the tip in the form of our elected officials.
If the basic tenet of representative democracy is majority rule, it is apparent that the 240-year old Constitution needs updating if it is to prevail against these counter-majoritarian forces. The power of the ballot remains, but, in our binary, two-party system, the voting public is subject to manipulation via mass media, social networks and other forms of propaganda, resulting in a polarized electorate whose power is diluted. “Divide and conquer” is a stratagem as old as conflict itself. If necessary reform is to be achieved, a long-term project to remove the grip of the few on power one finger at a time is required.
This must be an ongoing discussion.