The next two years might be America’s last chance to protect the basic democratic principle of majority rule.
Adam Jentleson in The Atlantic
President joe biden came into office facing four “converging crises”: COVID-19, climate change, racial justice, and the economy. But after a few weeks of fast action on a pandemic relief plan, a fifth crisis will determine the fate of the rest of his administration, and perhaps that of American democracy itself: the minority-rule doom loop, by which predominantly white conservatives gain more and more power, even as they represent fewer Americans.
The doom loop consists of four interlocking components. Candidates who represent white conservatives—Republicans, in our ideologically sorted era—begin every election cycle buoyed by a sluice of voter suppression and gerrymandering (what I call electoral welfare), which makes it easier for them to win. Then antidemocratic features of the American system that have always existed but never benefited one party over the other in any systematic way help those same candidates take control of institutions such as the White House and the Senate, despite winning fewer votes and representing fewer people than their opponents. Once in control of these institutions, these newly elected officials use them to entrench their power beyond the reach of voters. If they are eventually voted out of power, they retain a veto over the agenda of the majority, which they use to block change and feed the conservative case that the government is “broken.” This hastens their return to power—along the very path they greased with voter suppression.
The net effect of this doom loop is a growing divergence between the agenda of the government and the will of the governed, an untenable dynamic in any democracy. With Democratic control of Congress hanging by a handful of seats, the next two years might be the country’s last chance to stop this cycle.
Kenneth Owen: Minority rule cannot last in America
The loop starts at the ballot box, where Republicans are making it harder than at any time in recent history for those who are unlikely to vote for them to vote at all. According to Michael McDonald, a professor at the University of Florida and one of the nation’s foremost experts on voting laws, “We are witnessing the greatest rollback of voting rights in this country since the Jim Crow era.” The Supreme Court’s 2013 decision in Shelby County v. Holder unleashed a new wave of voter suppression targeted at reliably Democratic constituencies such as nonwhite voters and young people. The pace of suppression has only increased since the November election. According to the Brennan Center for Justice, which tracks voter-suppression efforts across the country, 47 states have seen 361 bills aimed at restricting voting rights since the beginning of the year.
Republicans don’t just have an easier time winning elections; they have an easier time piecing together individual election wins to gain control of the institutions that govern American life. Here, too, the doom loop gives a big boost to candidates who represent predominantly white conservatives. Over the past half century, demographic shifts have rendered the antidemocratic features of American government newly vulnerable to exploitation, but especially by candidates who represent white conservatives.
The clearest—and most powerful—demonstration of this is the role of the Electoral College in American politics. Throughout the 20th century, the antidemocratic potential of the Electoral College remained dormant. After 1888 until 2000, every president who won the White House won both the popular vote and the Electoral College. Even when the popular vote was close, the Electoral College only accentuated the margin of the victor. In 1960, it augmented John F. Kennedy’s narrow popular victory with a 303–219 Electoral College win. Eight years later, it converted Richard Nixon’s .7 percent popular-vote win over Hubert Humphrey into a 301–191 electoral-vote victory. A swing of thousands of votes in either election could have caused the popular vote and Electoral College results to diverge. But it didn’t happen, and so for the entire 20th century, America never had to contend with a president who had won fewer votes than his opponent.
Indeed, the fear that the Electoral College could have produced an antidemocratic result in 1968 inspired a bipartisan and nearly successful effort to eliminate it. As the journalist Jesse Wegman documents in his book, Let the People Pick the President, the strong showing of Alabama Governor George Wallace, who ran as an independent, came close to denying Nixon an Electoral College victory, which would have thrown the election to the House and taken it out of the hands of voters. In response, in 1969, an amendment to repeal the Electoral College passed the House 338 to 70. By the time the amendment passed the House, 30 states were already poised to ratify it, with more leaning toward joining them to reach the necessary threshold of 38. In the Senate, the repeal effort came within a few votes of succeeding but was scuttled by a filibuster. Reflecting the consensus at the time, the historian James MacGregor Burns warned that by keeping the college in place, America was playing “a game of Russian roulette, and one of these days we are going to blow our brains out.”
He was right. Today, the antidemocratic force of the Electoral College is the dominant feature of American politics. Since 2000, both Republican presidents who won the White House came to power without winning the popular vote. The consequences of these presidencies for America and the world are hard to overstate.
Republicans owe their newfound Electoral College advantage to a recent shift in white voters’ preferences. As the analyst David Shor has found, that advantage exists “because white voters without a college degree *in large midwestern states* switched their votes en-masse from Obama to Trump in 2016.” According to FiveThirtyEight, the effect of this shift is that a Democratic presidential candidate now has to run at least 3.5 percentage points ahead of their Republican opponent in the popular vote to win the White House—the largest advantage either party has held in more than 70 years, and the first time any advantage has helped a party overcome a popular-vote deficit.
Republicans enjoy the same kind of structural welfare when it comes to the Senate, where they have to win fewer votes than Democrats to control the chamber. Although it was always theoretically possible for a party to control a majority in the Senate despite representing a minority of the population, it did not happen with any frequency in the 20th century. By contrast, in the 21st century, every time Republicans have controlled the Senate, they have represented a minority of the population.
Like the Electoral College, the antidemocratic nature of the Senate has always existed, but it did not favor one party over the other in any systematic way until recently. The decision to award each state the same number of senators regardless of population was one of the most controversial of the Constitutional Convention, where James Madison decried it as a source of “injustice.” Back then, the largest state by population, Virginia, was about 10 times more populous than the smallest state, Delaware. Today, the most populous state, California, is roughly 70 times larger than the smallest state, Wyoming, rendering the injustice Madison condemned exponentially worse.
As with the Electoral College, Republicans owe their ability to wield minority rule in the Senate to white voters. Democrats and Republicans used to win Senate seats in big and small states at comparable rates because both parties used to be competitive with white working-class voters. But since the 1960s, the shift of these voters toward the GOP has turned the Senate’s overrepresentation of rural areas into an entrenched Republican advantage. As the political scientist Lee Drutman has found, where there was once little correlation between the size of a state’s population and the party that represented it, “there is now a clear and pronounced partisan small-state bias in the Senate thanks to mostly rural, less populated states voting increasingly Republican.” Such states are, of course, overwhelmingly white. A 2018 analysis by Civis Analytics found that nonwhite voters are more underrepresented in the Senate than at any time since 1870. In today’s Senate, evenly split at 50 seats a party, that bias toward predominantly white, small states means that Democrats represent 41 million more people than Republicans.
As white conservatives shrink into a minority bloc, the doom loop provides them a pathway to gain power anyway. Once in power, they use it to accelerate the loop.
Control of the White House and Senate allows Republicans who came to power on the backs of a white, conservative minority to appoint judges who make it even easier for Republicans to win elections. Although conservative and liberal justices sided against former President Donald Trump’s outlandish claims of election fraud, conservative judges are waging a steady, if quieter, campaign against voting rights. A recent study shows that 79 percent of decisions by Republican-appointed judges restrict access to the ballot, versus 37 percent for Democratic-appointed judges. This has proved true at the Supreme Court, where Chief Justice John Roberts authored the majority opinion in the Shelby case, gutting the 1965 Voting Rights Act and capping off the career-long crusade against voting rights that he began as a political appointee in the Reagan Justice Department. Overall, judges appointed by Bush and Trump make up 48 percent of the judiciary. Judges appointed by Trump alone make up 28 percent. When these judges hear antidemocratic claims that are less absurd than Trump’s, they are likely to be sympathetic.
Gerrymandering at the state level also plays a crucial role in the doom loop, allowing Republicans to maintain control of state legislatures, which then pass restrictive voting laws in key swing states and inflate Republicans’ numbers in Congress, despite representing a minority of the populations in those states. A bipartisan panel of judges found that in North Carolina’s 2018 midterm elections, Democratic candidates for the state legislature won a majority of the statewide vote, but Republicans won 54 percent of state House seats and 58 percent of state Senate seats. A University of Southern California study found that Michigan, Wisconsin, Virginia, Ohio, and Pennsylvania all suffer from minority rule in one or both chambers of their state legislatures. These state legislatures draw the congressional-district maps every 10 years, and will do so in the coming months, following the results of the 2020 census. As Dave Wasserman of The Cook Political Report has shown, Republicans can use this upcoming round of redistricting to gerrymander away Democrats’ majority in the House of Representatives before a single vote is cast in the 2022 midterm elections.
The loop makes it harder and harder for Democrats to win elections, despite representing more and more people. But when Democrats do fight that uphill battle and win, the last leg of the loop lets politicians who represent white conservatives wield a veto over the majority’s agenda. These representatives use any means available to them to manufacture gridlock and sow discontent among voters—which, in addition to frustrating any possibility of a strong governmental response to the various crises America is dealing with, feeds the conservative case that the government is broken and helps them regain power. This effort largely takes place in the U.S. Senate.
The Senate was designed to give minority factions a voice, but senators committed to maintaining white supremacy expanded the limited minority protections designed by the Framers into full-bore veto power. Even Madison, who went out of his way to design protections for minority factions, believed that after the minority had its say, issues should be decided by majority-rule votes. In “Federalist No. 10,” often cited by conservatives for Madison’s eloquent defense of minority rights, he makes clear that the principle of majority rule superseded the minority’s right to block and delay. “If a faction consists of less than a majority,” Madison wrote, “relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.”
Indeed, the Senate functioned as a majority-rule institution for the first 200 years of its existence. In 1964, for instance, President Lyndon B. Johnson was informed by an aide that he was certain Medicare would pass because his whip count pegged support at 55 votes, enough to pass. In today’s Senate, that would mean certain failure.
The major exception to the practice of majority rule in the Senate was civil rights, and the driving force behind the rise of the minority veto was white supremacy. The visionary of the minority veto was Senator John C. Calhoun of South Carolina, a champion of the slaveholders and spiritual father of the Confederacy. Starting in the 1830s, Calhoun recognized that majority rule would lead to the steady elimination of slavery, and sought to expand the power of the minority on behalf of the slaveholding faction he represented. Calhoun was explicit about his goal to strengthen Madison’s minority protections into an outright veto. In his Disquisition on Government, Calhoun complained that Madison’s system offered insufficient protections to minority factions, and explained that his own goal was “to give to each portion or interest of the community a negative on the others.”
The best Calhoun could do against a Senate where rules and norms still firmly entrenched majority rule was to innovate what we would recognize today as the “talking” filibuster. Although this early iteration was strong enough to delay bills for as long as its practitioners could hold the floor, it was almost never powerful enough to block them altogether. Still, it was a radical innovation at the time. When Calhoun launched into his early filibusters, cloaking himself in the mantle of minority rights and shocking contemporary observers, the Senate was still governed by the ethic laid out in the manual of congressional procedure Thomas Jefferson had written, which dictated that “no one is to speak impertinently or beside the question, superfluous, or tediously.”
David Litt: We already got rid of the filibuster once before
Calhoun’s dream of an outright minority veto would begin to emerge in the Jim Crow era. Once again, southern white supremacists found themselves facing a majority determined to make progress on civil rights. In the early decades of the 20th century, federal anti-lynching and anti-poll-tax bills repeatedly mustered majority support in the House and Senate, and enjoyed the backing of presidents of both parties; one anti-poll-tax bill appeared to have the votes to pass into law as early as 1891. The American public was ready for action too. When the polling firm Gallup first surveyed Americans about federal anti-lynching laws in 1937, it found 72 percent of the public to be in support, including a majority in the South. On anti-poll-tax laws, Gallup found more than 60 percent support as early as the 1940s.
To block the majority’s desire for action on civil rights, the white-supremacist senators of the South repurposed a 1917 rule intended to end filibusters and used it to extend them indefinitely, thus killing bills altogether. Declaring that the real issue was not civil rights but minority protections, they turned this new procedural vote to end debate (or invoke “cloture”) into the de facto vote on a bill itself. Because the rule set the cloture vote at a supermajority threshold while the vote to pass bills remained at a majority, a minority could win the vote on cloture, but not the vote on passage.
Puffing themselves up to lofty rhetorical heights, southern senators turned this new cloture vote into the decisive vote for civil-rights bills, and only civil-rights bills. “Free speech and the Constitution of the United States won a memorable victory,” Senator Tom Connally of Texas boasted in 1942, celebrating the use of cloture to defeat a bill to end poll taxes. At the time, Texas still had poll taxes, but Connally dismissed them as a “mere incident.” On issues other than civil rights, southern senators routinely voted to end debate. Somehow, free speech seemed to become an issue strictly when civil-rights legislation was at stake.
Although this procedural switcheroo was consistently applied to civil rights only through the 1960s, in the second half of the century, it began to be used for other issues. That change came gradually at first, maybe a few times per two-year session of the Senate, and then began to accelerate during the end of the 20th century and into the 21st, before exploding into the hundreds under Senator Mitch McConnell.
When McConnell became minority leader in 2007, the number of measures forced to clear the supermajority hurdle of cloture doubled over the previous session and continued rising. By 2013, half of all the filibusters ever waged against presidential nominees in the Senate’s history had been directed by McConnell against President Barack Obama. Under McConnell’s leadership, it became routine for every piece of business before the Senate to require 60 votes to pass.
There was never an affirmative decision that the Senate should require a supermajority of 60 votes for passage instead of a majority. It just kind of happened, the product of decades of acquiescence in the face of determined obstructionists. Of course, the flip side of requiring a supermajority on all legislation is that a minority can block whatever it wants. In the modern Senate, Calhoun’s minority veto has effectively transpired.
As the use of the modern filibuster and its 60-vote threshold expanded, both parties took advantage of it when it served their interests. (As a senior aide to the Senate Democratic leader Harry Reid, I defended many Democratic filibusters after Republicans took the majority in 2014.) But although the filibuster occasionally comes in handy for progressives, it has always benefited conservatives far more, and still does today. Obstruction has a partisan lean to the right—it is more useful to conservatives, who, in William F. Buckley’s famous phrase describing his magazine, National Review, are the constituency that “stands athwart history, yelling Stop.” By contrast, progressives primarily advance their agenda by passing major legislation. A 2019 study by the Center for American Progress shows that Republicans have used the filibuster to block Democratic legislation roughly twice as often as Democrats have used it to block Republican bills.
One aspect that might have exceeded even Calhoun’s wildest dreams is the ease with which the modern filibuster and its attendant minority veto can be wielded. Today, no one is required to debate on the Senate floor. In 2013, Republicans filibustered a bill to create universal background checks proposed by Senators Joe Manchin and Pat Toomey following the Newtown massacre. The bill secured the support of a bipartisan majority of 55 senators. During the week the bill was on the floor, its opponents largely declined to debate it. Senator McConnell, leading the opposition, spoke about the bill for a grand total of two minutes. That same week, McConnell found more time to celebrate the legacy of Margaret Thatcher and the March Madness victory of the University of Louisville men’s basketball team than he did to discuss background checks.
In Calhoun’s time, opponents would have had to hold the Senate floor in order to block a measure like the background-checks bill from receiving a majority-threshold vote. They would have been forced to endure the public’s ire for opposing a bill backed by 88 percent of the American people, as a poll showed at the time. But in the modern Senate, no one was required to explain themselves. At best, the public had a hazy idea of why the bill failed. It wasn’t voted down, exactly. Rather, it failed to secure 60 votes to clear a once-obscure procedural hurdle and died. Calhoun’s minority veto was wielded quietly, but with tremendous force.
About a year and a half after Republicans defeated the Manchin-Toomey bill, they regained the Senate majority, thanks in no small part to voter frustration with “Washington gridlock.” The 54 seats Republicans won in 2014 represented 46 percent of the American population. Republicans used that control to block most of the remainder of President Obama’s agenda and, most consequentially, his appointment of Judge Merrick Garland to the Supreme Court. When Trump won the White House, he filled the seat with Neil Gorsuch, later adding Brett Kavanaugh and Amy Coney Barrett alongside him. Today, they make up half of a six-seat conservative majority poised to strike down much of Biden’s agenda, while McConnell wields Calhoun’s veto in the Senate. Together, these forces can impede desperately needed change, depress the Democratic base—and with help from voter suppression and gerrymandering, return Republicans to majorities in the House and the Senate in the 2022 midterm elections, permanently crippling Biden’s presidency.
On and on, the doom loop spins.
Breaking the loop is possible, but only if Biden treats it as a crisis. “It’s getting to the point where, you know, democracy is having a hard time functioning,” he observed to George Stephanopoulos last month. Indeed, the question of whether our democracy can perform its most basic function of reflecting the will of all its people, or whether it becomes a force wielded by a white minority to overrule our diverse majority, will be decided on Biden’s watch. If he fails, the window of opportunity will slam shut and may not reopen.
David Frum: The Founders were wrong about democracy
Breaking the doom loop starts with ending or at least eroding Republicans’ electoral welfare through a robust democracy agenda. Although the House has passed H.R. 1, the Senate must do the same, and both chambers must follow that up by passing the John Lewis Voting Rights Act, as well as additional democracy reforms such as Representative Jamie Raskin’s Ranked Choice Voting Act.
Democrats must reform the courts, which are undergoing a crisis of legitimacy. As Quinta Jurecic and Susan Hennessey recently wrote, “The Court has come to more closely represent the interests of a powerful minority,” a fact underscored by the looming threat that Roberts might reiterate his Shelby decision by striking down new voting-rights laws. Biden’s commission is a good place to start, but its recommendations must be aggressive and congressional Democrats must see them through.
Finally, Democrats must fix the Senate. This means rectifying the representational imbalances that enable Republicans to more easily control the Senate. Wyoming, a predominantly white state of about 600,000 people, is represented by two senators, while the similarly sized District of Columbia—where a plurality of the population is Black—is represented by zero senators. Granting D.C. statehood won’t solve the Senate’s underrepresentation of nonwhite Americans, but it will be a step in the right direction. Puerto Rico, whose population is larger than more than 20 states, certainly deserves to become a state as well.
The gateway to all of these reforms is eliminating or dramatically reforming the filibuster. Simply put, none of the other reforms will pass if Democrats leave the filibuster intact.
Filibuster reform should aim at keeping what is good about the Senate, including the minority’s right to be heard and have a voice in the process, while restoring what has been lost: the ability to move forward with the nation’s business in a reasonably timely fashion, by majority vote if necessary.
If Biden and congressional Democrats enact these reforms, they will start to break the doom loop. Calhoun would be appalled. But Madison, whose respect for minority rights never obscured his higher loyalty to the “republican principle” of majority rule, would approve.
This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.
ADAM JENTLESON is the executive director of Battle Born Collective and a former deputy chief of staff to Senator Harry Reid. He is the author of Kill Switch: The Rise of the Modern Senate.
