Learning from 2020: Action and Democracy

Just as we waited for four days after Election Day 2020 to ascertain whether the candidate with around 5 million more votes could win the Electoral College and presidency, today we wait to see if that decisive winner can achieve anything legislatively once he is sworn in. That outcome depends on two Senate runoffs in a single state on January 5. Even a win by both Democratic candidates ensures the president-elect only a slim majority of his own party in the Senate, not nearly enough for the supermajoritarian realities of that chamber.

We currently face an extreme mismatch between institutional outcomes in our government and the will of the majority. Our political institutions put brakes on the desires of the majority in a multitude of ways, and sometimes that’s a good thing. The majority may not always be right. Some level of deliberation and discretion may be desirable. There is a balance to be struck between swift responsiveness to public opinion and prudent, cautious consideration. Right now, however, the see-saw between these two laudable desires is not so much overbalanced as flying off its hinges toward complete inaction. 

In the past, we have democratized many elements of our original design. Our votes didn’t used to determine the Electoral College’s decision. Today, they do. Our senators used to be chosen by state legislators. Since the 17th Amendment, we vote for our senators on our own. Nor would we want to go back to the old ways if we could. 

It’s time to change the rules again to restore some level of democratic responsiveness to our system.

Happily, we have a vast menu of options before us. Take a look at some possibilities and see what strikes your fancy:

The Electoral College funnels the country’s majority opinion into 51 state- (and D.C.-) level majority-rule contests, with the very questionable outcome (from a purely democratic perspective) that the winner could actually receive thousands, if not millions, fewer votes than the loser. Don’t want to move to a national popular vote? We can preserve the role of the states yet diversify their contribution to the Electoral College vote count. Why not award state electoral votes within House district boundaries rather than statewide boundaries, or award some electoral votes by district boundaries instead of by statewide boundaries, as they do in Maine and Nebraska? Last I checked, Maine and Nebraska are still around, doing just fine.

The U.S. Senate provides for two senators for every state. This is “equal” if you accept that territories have true, discernable, and united interests; it’s more sketchy if you believe that every individual is owed the same amount of representation. Wyoming, with its population of less than 580,000, receives the same level of representation in the Senate as California, with its population of nearly 40 million. You could toss the Senate and stick with the population-based House, redesign the Senate to be population-based, or you could combine territorial and individual representation in some way, such as by awarding one seat to all states, regardless of population, and then apportioning the rest of the seats by population.

The Senate filibuster, a relic not from the Constitution but from Senate rules, is a particularly egregious example. It permits one single senator to obstruct the progress of the entire chamber by refusing to stop talking so a vote can be taken. Only a vote for cloture, which requires a supermajority of 60 voters, can stop a filibuster. In today’s hyperpartisan, polarized environment, a filibuster on any legislation of note is expected. We’ve removed the filibuster from executive and judicial nominations in recent years. Are there other realms where we’d like to remove it? Would it be possible to reduce the threshold for ending a filibuster by a few votes? We have done so before; the threshold was once 67 votes.

Washington, D.C., and the U.S. territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands are still not entitled to voting members of Congress, and with the exception of D.C., still not entitled to a vote for president. That’s pretty icky any way you look at it.

I could go on. 

If we do nothing, the resulting outcome is the least democratic option of all: executive action. Presidents, Democratic and Republican, hamstrung by partisan and institutional realities, seek to achieve their ends by going solo. People don’t understand executive action, and the press doesn’t cover it as fully as legislative action. Accountability, even transparency, go out the window. If not anti-democratic, widespread executive action is at least the opposite of the limited power we are told our system created and that we should admire.

We all have to agree to the rules of the game for our system to be legitimate. A continued lack of responsiveness laps at the edges of illegitimacy. Our institutions, our rules of the game, can’t be untouchable. We tend to see virtue in protecting the past, our traditions. But, from my perspective, there is no virtue in protecting rules that no longer protect democracy. Much of the public policy literature and even a prominent theory on the presidency focus on how rarely major legislative change is possible in a system designed like ours. Rarely is one thing. We’re getting close to never. And in 2021, we have big decisions to make. Inequality, economic crisis, our health, our very planet depend on our government getting things done, and it can’t...unless something changes. My hope for the new year is that something will.

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Franchesca Nestor is an Assistant Professor of Politics & Government. Her research focuses on public opinion and racial and ethnic representation. Watch her i³ lecture on "Why You (Should) Love Bureaucracy."