US democracy is stuck in a rut – blame its founding document
Democracy in America is stuck in a rut, and the voting system, which leaves results unknown and undecided sometimes for weeks on end, is the least of it.
President Biden has been weakened by the Republicans’ takeover of the House of Representatives. He will get nothing done on the domestic front between now and 2024. At the same time, the incoming House majority, though razor-thin, will by all accounts spend most of its time “getting even” with Democrats for depicting them as morons in thrall to Donald Trump.
If the GOP had taken the Senate, at least there would have been consistency in Congress. But they didn’t. The Dems have held on by the narrowest of margins. So the next two years, beginning on January 3, will be a three-way pie-throwing contest between President, House and Senate.
No one benefits from the confusion. The entire administrative structure is crying out for reform. But change is not on the ballot. Nothing, it seems, can be altered lest the cry go up that the Spirit of ’76 has been betrayed and the very survival of the Republic has thereby been put at risk.
The irony is that the Founders, mainly country gentlemen-turned soldiers, spent much of their time at the post-war constitutional convention drinking, playing cards and insulting one another. Many of the delegates left Philadelphia early. Though they managed to establish rules that bound the 13 former colonies to a shared framework of law and practise, they had much else on their minds, not least their estates and making money. They didn’t expect their handiwork to be taken as holy writ. Indeed, James Madison, as the single most influential participant, revised the early drafts willy-nilly as he went along, while Thomas Jefferson wrote explicitly that the final document be revised and “repaired” every twenty years or so “to the end of time”.
The final draft certainly captured the spirit of the age, when America as an independent nation was in the process of forming itself out of the rubble of imperial rule. The trouble is, that when the text, opening with “We the People,” was written, less than three million Americans lived in the newly liberated territories. Wigs and tricorn hats were the norm. The principal occupations were farming and related trades. The native peoples – “Indians” – were regarded as trash. Slavery was universal, with each slave officially regarded as three-fifths of a person. Everybody knew everybody else.
Today’s America is made up of 50 states across 3,000 miles of territory. Its 332 million citizens, from every conceivable ethnic and geographical background, are engaged in all forms of economic activity, from space exploration and advanced engineering to advertising, movie-making and organised crime.
Governing such an agglomeration of lands and interests was never going to be easy. The states themselves are fundamentally unequal. California, with its population of 40 million, has two senators, as do Texas (29 million) and New York (20 million). But the ten least-inhabited states, with a shared population of fewer than nine million, boast 20 senators between them, including two from the mountain territory of Wyoming, home to just 582,000 souls.
In laying down the one-size-fits-all formula, the Founders couldn’t conceive of the spectacular growth of their country or of the existence of such future behemoths as California and Texas. They simply wished to ensure that everyone, their slaves included, got a fair crack of the whip.
To even out discrepancies, the numbers allocated to the House of Representatives from each state were directly related to the size of their populations, so that California currently elects 52 to Wyoming’s one. This sounds reasonable, but given the fact that State assemblies – themselves hotbeds of corruption – get to decide constituency boundaries, the result down the decades has been gerrymandering on an epic scale. “Fixing” boundaries is a practice used by both sides but has been honed to perfection in modern-day Texas, where Democratic-leaning districts (typically the big cities) are divided up like so many slices of pie and located within sure-thing Republican constituencies.
It would be as if Leeds West, a safe Labour seat, represented by the shadow chancellor Rachel Reeves was somehow amalgamated with leafy Richmond, making Rishi Sunak its Tory MP.
The House is the everyday workshop of American democracy, dominated by its powerful committees, but it is the Senate that is responsible for many of the most important tasks. It approves justices of the Supreme Court, as well as all other federal judges, making choices – nearly always these days along party lines – that, as with abortion, can have an impact lasting decades into the future. It also confirms the incoming President’s Cabinet, ambassadors and other senior state officials. Most famously, the body is the court that tries presidents impeached by the House, at which point those from the opposite party may be convicted while those of the majority party are invariably acquitted.
Most proposed legislation originates in the House, including all Bills to do with raising revenue. But the Senate can override or amend what has been agreed and refuse to send it on for the President’s signature. This is what would have happened on a routine basis if the Republicans had won just one more seat in the 2020 elections. Senators are supposed to investigate malfeasance within the government and its agencies but like nothing more than launching a witch-hunt against their political enemies. As individuals, senators can hold up a Bill that especially offends them by way of a filibuster. They literally talk-out a Bill they don’t like until the time allotted for its passing expires even if this means remaining on their feet for hours at a time. The longest-ever filibuster, intended to prevent the passage of the 1957 Civil Rights Act, lasted 24 hours and 18 minutes without the speaker, Strom Thurmond (who lived on to the age of 101), taking a “bathroom” break.
It is easy to see what is wrong here and why reform is necessary. But stasis and self-regard make this impossible. The Senate likes to boast that it is the world’s greatest deliberative body. It isn’t. Typically, its debates are either desperately dull or, as Lyndon Johnson once remarked, full of “piss and wind”. Many senators are little more than party hacks, who, once elected to a six-year term, can look forward to 12, 18, even 48 years pretending to be the heirs to Cicero. Some are seduced by the power of their office, like West Virginia’s Joe Manchin, nominally a Democrat, who until recently, with the Senate split into two equal factions, repeatedly used his deciding vote to ensure that aspects of laws he didn’t like ended up on the cutting room floor.
More even than the inequities of Congress, it is the system that elects them that needs to be revised. The House is elected every two years. This means that no sooner have representatives taken their seats than they are campaigning to secure re-election. Campaigning is the default position. Hundreds of millions of dollars are spent on attack ads that apparently change very few minds.
The other malign feature of the rapid turnaround is that voters are able every two years to deliver a rebuke to the sitting President and his party. Only very rarely do they turn down the opportunity. This means that priority legislation has to be up and running before the mid-terms call time on the White House agenda. It is a nonsense – one of those ideas that seemed good at the time but has never in fact made sense. The obsession with checks and balances, bequeathed by the Founders has made government a lottery.
Joe Biden has only been in the Oval Office for two years, but already all the stress is on whether or not he should stand for a second four-year term. Whatever he does between now and this time next year will be viewed through that one narrow prism. And should he, aged 80, decide to run again, and wins, he will at once be regarded as a lame-duck President, to be wheeled out (in his case perhaps literally) only if there is a war on, someone important is in town, a vacancy has arisen on the Supreme Court or a natural disaster has occurred that requires him to travel to the affected state and shake hands with its governor.
And then, of course, there’s the Electoral College, designed by the Founders to ensure that the votes of little states count more than those of the big states. A President who has won the most votes in the country at large still has to win the approval of at least 270 of the 538 state-appointed “electors” before claiming victory. Donald Trump lost the popular vote to Hillary Clinton by nearly three million votes in 2016, but scrabbled home on the basis of his 304 College votes to the 227 of his Democratic opponent.
I could suggest all sorts of remedies, most to do with a fair distribution of senate seats, five-year election cycles, the handing over of responsibility for redistricting to independent commissions, term limits for the Supreme Court and the abolition of the Electoral College.
But even if I were Barack Obama, Abraham Lincoln, Mark Twain… or Tom Hanks, nobody would pay the slightest attention because nothing in the United States Constitution is ever going to change, not this year, not next year, not fifty years from now. None of the 27 amendments to the Constitution, save the 17th, which in 1913 established the direct election of senators by popular vote, has altered the system of government as ratified by the 13 colonies in 1788. Any true revision of the Constitution is considered un-American, and possibly treasonous. They the People must do only what the Founders told them to do – even when they didn’t. And They the People must live with the consequences.