While Democrats can breathe a sigh of relief on the results of the latest midterm elections, their wins beg the question of whether this election served any useful purpose. I would assume that the ultimate goal of any government is to make good public policy. But by winning majority in the House, the Democrats did not gain sufficient clout to advance policies that are at the core of the Democratic agenda. Nobody really thinks that is going to happen. What the Democrats have gained, however, is the power to hamstring the opposition. What practical purpose does that serve?
American democracy is in trouble. It is an 18th-century model in a 21st-century world. As I often say to my students, “the Framers set out to design a government that didn’t work very well, and they were enormously successful.” Now that is true, more than ever.
American Constitution
The American government was designed to impose a number of barriers to policymaking. The idea was that an inefficient government would be restrained from violating the rights of its citizens. If we divine the original intent of the Framers, we find that the “citizens” they were trying to protect were themselves: white male property owners. And in that endeavor, they were pretty successful. Of course, that construct leaves out a lot of shareholders who are now considered citizens. Thus, in the strictest sense, the Constitution was never really a democratic design to begin with.
Now that the definition of citizenship has been expanded to include all naturalized and native adults, the structure of the Constitution is not well adapted to popular consent. Instead, the excessive protections of (numerical) minority rights have made it impossible to govern.
Predictably, this problem became manifest fairly recently with the passage and implementation of the Voting Rights Act in 1965. Increasingly, it becomes clear that under the current Constitution, the country becomes ungovernable if everyone is actually allowed to participate.
Let’s consider the ways in which our Constitution fails.
Annual Budget
First, the Federal Government is unable to carry out its most basic functions. The primary example of this is its inability to produce an annual budget. Congress has not passed a complete budget (all 12 standalone appropriations bills) since 1997, and between 2011 and 2016, it passed none of its regular appropriations bills at all.
As a result, many lingering policy concerns remain. Furthermore, without the capacity to make decisions, once something happens, it is almost impossible to reverse. That includes budget deficits, a creaky inefficient health care system, and war that is now 17 years old.
One Person One Vote?
A second way in which the Constitution fails is that the Federal Government can no longer be construed in any way to be a democracy. None of the major institutions at the Federal level represent the principle of one person one vote.
The Senate is manifestly undemocratic institution, made more so by the recent dismissal of the supermajority requirement (for, among other things, the confirmation of judges). Apropos of which the Courts are undemocratic institutions which, because of the failure of the Government’s policy-making function, are increasingly tasked with making policy decisions for the country.
The House of Representatives is undemocratic because the districting principle skews the representation of the institution. There is a historical “seat bonus” for the majority party such that in 2016 the Republicans won the popular vote (for the House) by only about 1.5 percent but held a 10 percent advantage in seats held after the election. This year was an anomaly in that the seat bonus is very small, 51.5 percent of the vote for 53 percent of the seats, but we would expect in the long run for the system to revert to the mean.
Finally, the presidency is an undemocratic institution because of the Electoral College. Unfaithful electors aside, in my own research (with Tyler Harville), I can demonstrate that the “Senate Skew” (two votes added to each state in relation to their Senate representation) in the Electoral College would have changed the outcome in two presidential elections since the turn of the 20th-century, including 2000 which without the Senate Skew, Al Gore would have won (even without Florida). The other is 1916, with Charles Evans Hughes winning the presidency (hey conservatives, he was opposed to the income tax!).
For a number of years, Conservatives have been agitating for a new Constitutional Convention. Their real purpose is to get a Balanced Budget Amendment to the Constitution and limits on the power of the Federal Government.
Maybe it’s time for liberals to agree, not with the Balanced Budget Amendment, mind you, but with the principle of a constitutional convention perhaps for the purpose of turning the United States into a democracy.